PUBLIC SAFETY CENTER 39 CHURCHILL ROAD

OSWEGO, NEW YORK 13126

TELEPHONE: (315) 349·3200 FAX: (315) 349-3212

Office of the District Attorney MARK M. MOODY FIRST ASSISTANT

DISTRICT ATTORNEY

KATHLEEN M. MACPHERSON INVESTIGATOR

Hon. Daniel King Acting Oswego County Court 25 East Oneida Street Oswego, NY 13126

GREGORY S. OAKES DISTRICT ATTORNEY I CORONER

November 16, 2015

ASSISTANT DISTRICT ATTORNEYS

JAMES M. NICHOLSON MATIHEW J. BELL

ROBERT E. GENANT ALLISON M. O'NEILL

COURTNEY E. HAVILAND THOMAS W. CHRISTOPHER

CHARLES H. CIESZESKI

Re: People v. Gary Thibodeau -- Indictment No. 94-161

Dear Judge King:

Enclosed please find the People's Memorandum of Law relative to the CPL § 440.10 hearing

that has been held on the above-captioned matter. Thank you for your courtesies throughout these

proceedings.

~1 yours, ·(/ /f

"7h~ FfYS. OAKES

District Attorney

Enc.

cc: Lisa Peebles, Esq. Oswego County Court Clerk

COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF OSWEGO: CRIMINAL TERM

PEOPLE OF THE STATE OF NEW YORK,

--against--

GARY THIBODEAU,

STATE OF NEW YORK ) COUNTY OF OSWEGO )

Respondent

Defendant-Petitioner

~

MEMORANDUM OF LAW

INDICTMENT # 94-161

I, GREGORY S. OAKES, being duly sworn, depose and say:

1. I am the District Attorney for the County of Oswego, State of New York, and I have

served in that position since January 1, 2012.

2. I am filing this Memorandum of Law on behalf of the Respondent, the People of the

State ofNew York, in opposition to the CPL§ 440.10 Motion to Vacate Judgment that was filed by

Defendant-Petitioner (hereinafter "Defendant") on or about July 30, 2014.

3. Defendant seeks to vacate his judgment upon the ground of newly discovered

evidence, pursuant to CPL § 440.10( l )(g), and upon the ground that the People failed to provide all

Brady material in violation of his constitutional rights, pursuant to CPL§ 440. IO(l)(b)&(h).

For the reasons set forth herein, this court should DENY the entirety of Defendant's Motion.

For the purpose of this Memorandum, the People will be not be addressing every issue

raised in Defendant's CPL § 440. l 0 Motion and the supplemental motions filed thereafter. As to

those issues not specifically addressed herein, the People incorporate by reference the Affirmations

in Opposition to Motion to Vacate Judgment (hereinafter "Affirmations") that were filed by your

affiant and Chief Assistant District Attorney Mark Moody on or about October 10, 2014. Further,

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the People ask this court to take judicial notice of all prior motion responses, memoranda, and case

law that the People provided to the court throughout the pendency of these proceedings.

BRADY MATERIAL

I. The court should deny that portion of the motion that alleges a Brady violation since Defendant has failed to establish that the People withheld information either about Heidi Allen's status as a confidential informant or about the index card being dropped.

4. Based upon the evidence presented during the CPL § 440.10 hearing, this Court

should deny that portion of Defendant's motion that alleges a Brady violation because the defense

has failed to establish that the People withheld information about Heidi Allen's status as a

confidential informant, including information about the dropped index card. As discussed herein,

the credible and reliable evidence presented at the hearing demonstrated that the People provided

defense counsel with all reports relating to Heidi Allen's status as a confidential informant,

including documents that disclosed that an index card with her personal information had been

dropped by a deputy. The hearing testimony showed that the People provided all relevant reports to

then Attorney Joseph Fahey and/or that defense counsel was aware of the information contained

within those documents at the time of trial. Since Defendant received the relevant reports and/or

had actual knowledge of the material contained therein at time of trial, the portion of the instant

motion that alleges a Brady violation should be denied.

5. During the direct examination, defense counsel showed Judge Joseph Fahey Exhibit

4, which is a copy of a December 8, 1994 article from the Post-Standard. In that article, then

Attorney Fahey was quoted making statements that demonstrated that he was aware of Heidi Allen's

status as a confidential informant. See Hearing Transcript "HT/' pp.127-128; Exhibit 4. In

response to questioning at this hearing, Judge Fahey specifically acknowledged that he was aware

of the so-called 11Lortie report" prior to trial. Although Judge Fahey testified that he doesn't know

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whether he actually ever saw the report, he stated that he was aware of the substance of the report.

See HT, pp.128-129.

6. Notably, in that report, Sgt. Roy Lortie wrote that upon hearing that Heidi Allen was

missing, he "recognized Heidi Allen as a confidential informant who had worked with the ACT

TEAM when writer had charge of it in 1991 and 1992." In that same report, Sgt. Lortie also noted

that Deputy V anPatten did not immediately recall Heidi working as a C.I. in 1991 until he was

reminded. Sgt. Lortie noted in his report that the C.I. file for Heidi was found in VanPatten's

mailbox at the Sheriff's Office and was relayed to the crime scene. See Exhibit 4. Again, Judge

Fahey testified before this court that he was aware of the information in that report. See HT, p.128-

129.

7. Although the hearing testimony showed that the trial prosecutor in fact provided

Attorney Fahey with a copy of the "Lortie report," it is immaterial whether he received a physical

copy of that report. As established by his hearing testimony, Judge Fahey was aware of the content

of the "Lortie report" prior to trial. Since he possessed the information that was within the report,

which revealed that Heidi Allen had worked with the Sheriff's Office in some manner as a

confidential informant, the failure to provide a physical copy of the report does not equal a Brady

violation. See People v. Archie, 78 A.D.3d 1560, 1562 (4th Dept. 2010), Iv. den. 16 N.Y.3d 856

(2011).

8. At the hearing, the People introduced a transcript of the court appearance that

occurred on December 8, 1994 before the Hon. John Brandt. A review of that transcript shows that

Judge Fahey was indeed aware of Heidi Allen's status as a confidential informant prior to trial. At

one point in the appearance, Judge Fahey stated, "I would note that there was a report disclosed to

Mr. Walsh which indicates that the victim in this case was at some previous time working as a

confidential informant for the sheriff's department several years previously." After a brief exchange

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with the court, Judge Fahey continued, "The report that Mr. Walsh shared with me indicated that

there was a file in existence that was brought to the scene of the D&W, but Mr. Walsh has not been

given that particular file. That's what I would ask be disclosed." (emphasis added.) Although

Judge Fahey's remarks do not clearly indicate whether Attorney Walsh in fact provided him with a

physical copy of the Lortie Report, his comments reflect that he was fully aware of the content of

the report.

9. At the hearing, defense counsel showed Judge Fahey a single-spaced report that was

written by Deputy Michael Anderson, which was received as Exhibit 10. Although the report itself

was undated, it had a date-stamp that indicated it had been received by the Oswego County Sheriffs

Department on December 9, 1994. In that report, Anderson noted that he met with Heidi Allen in

1991 to discuss her knowledge of drug activity. Anderson wrote, 11After the meeting was over

patrol expressed no interest in using Allen as an informant as she had no true information that could

be useful to us. Allen was never formally signed up as a confidential informant and the case was

never worked but left inactive." See Exhibit 10.

10. When asked if he had ever seen Exhibit 10 while representing Defendant, Judge

Fahey responded, 111 don't recall ever seeing the document, but I am--1 was familiar with the

information contained in it. 11 See HT, p.139, lines 12-20. After receiving this response, defense

counsel thereafter asked a series of questions about various exhibits, seemingly trying to get Judge

Fahey to reply that he was aware of the Lortie Report rather than the content of Exhibit 10. See HT,

pp.140-142. Although the questioning became somewhat confusing, Judge Fahey ultimately

seemed to acknowledge once again that he previously was familiar with the content of the Anderson

report. See HT, pp.141-142.

11. To the extent that Judge Fahey affirmatively testified at the hearing that he was

aware of the information contained in both the Lortie Report and the Anderson Report, his

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testimony undermines Defendant's claim that the People committed a Brady violation by

withholding information about Heidi Allen's status as either a potential or actual confidential

informant. Consequently, Defendant's motion on this ground must fail, and the People respectfully

request the court to DENY that portion of the motion for this reason.

12. Although Judge Fahey acknowledged that he was aware of Heidi Status as a

confidential informant, he testified that he had no knowledge about the index card with Heidi's

information being dropped in the parking lot of the D&W store. See HT, p.143.

13. With all due respect to Judge Fahey, while it appeared that he was forthright at all

times throughout the hearing, it's unclear whether his testimony is reliable. The passage of time

understandably affects everyone's memory, and it appears that the intervening 20 years has

impacted Judge Fahey's ability to accurately recall certain facts.

14. On cross-examination, Judge Fahey was asked whether he had 11 taken any steps to

look through the file" that he had maintained on this case prior to testifying or giving affidavits. He

simply responded, "No." On follow-up, Chief ADA Moody asked, "So you've never gone through

on your own to determine whether any of these documents that we're discussing here today are

actually in the file, is that accurate?" Judge Fahey responded, "Yes, that's accurate." Chief ADA

Moody immediately asked, "We're solely here--you're solely here based on your own memory, is

that accurate?" Judge Fahey's replied, "Yes.11 See HT, p.921.

15. While it would be difficult for any attorney to accurately recall every aspect of

discovery from a 20-year old case, that task would seemingly be impossible if the attorney makes

no attempt to review the file to refresh his recollection. Memories fade, and an attorney who fails to

review the file is likely to make mistakes and remember facts incorrectly, which is seemingly what

happened in this case.

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16. As part of his original motion filed on July 29, 2014, Defendant included an

Affidavit from Judge Fahey in which he stated that he had never heard of the name Roger

Breckenridge until he was recently contacted by defense counsel. See Defendant's Motion, Exhibit

Q. However, the name "Roger Lee Breckenridge--Parish" appeared on the Witness List that Judge

Fahey provided to the trial court on or about May 18, 1995. After the CPL§ 440.10 motion was

filed, Judge Fahey subsequently provided another affidavit correcting his error.

17. In that initial affidavit, Judge Fahey also stated that he had never heard of Dan

Barney. See Defendant's Motion, Exhibit Q. As part of this hearing, this court received a copy of a

pretrial motion that was filed by Judge Fahey on or about May l , 1995. As part of that motion,

Fahey had attached notes from an investigator that included the name Dan Barney. See Exhibit NN

(Ex. J within motion). Despite the fact that Dan Barney's name appeared in a report that Judge

Fahey had included as part of his pre-trial motion, he had no independent recollection of the name.

Although it appears Judge Fahey was honestly mistaken, the sworn affidavit that he filed with this

court is inaccurate. It is therefore concerning that he did not review his file prior to testifying in this

hearing and was instead relying upon his independent recollection of events from 20 years ago.

18. Early in the cross-examination of Judge Fahey, Chief ADA Moody asked about

Theresa Crawford, the live-in girlfriend of Richard Thibodeau, and her status as an alibi witness.

When asked if he had called Theresa Crawford as a witness at trial, Judge Fahey responded, "I don't

recall." After being shown the trial transcript, Judge Fahey stated that he "apparently did call her as

a witness." See HT, pp.917-18. That he did not recall an important alibi witness without having his

memory refreshed speaks to his ability to accurately recall specific information about the case.

19. Similarly, Chief ADA Moody asked Judge Fahey if he remembered cross-examining

Susan Cowen during the trial. Judge Fahey responded, "Not--not at present I don't." When Chief

ADA Moody attempted to refresh his recollection by reminding him that Cowen lived on Kenyon

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Road and testified at trial that she had seen Richard Thibodeau's van in the vicinity of Defendant's

house on Easter morning of 1994, Judge Fahey responded, "I honestly have no present recollection

of that." See HT, p.926, lines 9-16. The trial transcripl shows that she testified.

20. At a later point, Chief ADA Moody asked Judge Fahey if he ever went to the District

Attorney's Office to review documents or videotapes or anything relating to the District Attorney's

file or the Sheriffs Department file. Judge Fahey responded, ttl don't recall.It Chief ADA Moody

then asked, "You don't recall. Well, let me ask you this and--did you every meet Investigator Terry

Whipple?" Judge Fahey replied, "I don't recall that." See HT, p.930, lines 6-14. To be clear, Judge

Fahey did not deny going to the DA's Office, he simply responded that he could not recall.

21. By contrast, on direct examination, Terry Whipple specifically recalled meeting

Judge Fahey at the District Attorney's Office in December of 1994. Whipple testified that Judge

Fahey reviewed some of the material in the case file at that time. He then testified about a second

instance when Judge Fahey came to the District Attorney's Office to review discovery material. See

HT, pp.1489-91. That second visit by Fahey was memorialized on handwritten notes from

Whipple, a copy of which was received at the hearing as Exhibit KKK. See HT, pp.1492-93.

22. The trial prosecutor, Donald Dodd, confirmed the fact that Judge Fahey went to the

District Attorney's Office on two specific occasions. As to Dodd's recollection about the first visit,

his testimony is supported by Exhibit 12, a document that Attorney Fahey signed on December 14,

1994 in which he acknowledged receiving a complete reproduction of the Sheriffs investigation

report.

23. Based upon the testimony of both Terry Whipple and Donald Dodd, as well as the

documentary evidence received by the court, it appears that Judge Fahey went to the District

Attorney's Office on at least two occasions to review the investigative file and/or to receive

discovery. That Judge Fahey does not recall either of these visits calls in to question the reliability

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of his memory. Ifhe cannot recall travelling from Syracuse to the DA's Office in Oswego on two

separate occasions, it is fair to question whether he can accurately recall whether he received certain

documents, particularly given the volume of discovery in this case.

24. Indeed, it appears that Judge Fahey initial testimony on direct examination that he

never actually received a physical copy of the Lortie Report was inaccurate. On cross-examination,

Chief ADA Moody had Judge Fahey examine the IO-page document that was received at the

hearing as Exhibit 5 and then reviewed a portion of the trial transcript during which Fahey made

reference to a document that had been marked (but not received) as Exhibit M .. After examining

Exhibit 5 and the questions asked at trial about Exhibit M, Judge Fahey essentially conceded that

Exhibit 5 is the same document as the Exhibit M. See HT, pp.922-24. The Lortie Report was the

tenth page of that exhibit.

25. Later in the hearing, when asked if there was a "very real possibility" that he had in

fact seen the Lortie Report, Judge Fahey simply responded, "Apparently so." See HT, p.950, lines

2-5. This simple acknowledgement from Judge Fahey is honorable and is seemingly a recognition

that his memory is flawed.

26. To be clear, the People are not disparaging Judge Fahey, as it seems that he testified

in good faith. Although he ultimately acknowledged receiving the Lortie Report, it's concerning

that he didn't recall that fact when he filed his initial affidavit in support of this motion, or when he

testified on direct testimony. When one also considers his admitted inability to recall important

aspects about the trial (e.g. testimony of Theresa Crawford and Susan Cowen) and other seemingly

memorable events (e.g. multiple visits to DA's Office), it is certainly possible that he actually

received information about the index card but has forgotten about it over the last 20 years. Judge

Fahey may be honestly mistaken when he says that he didn't know about the index card being

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dropped, just as he was mistaken in his initial affidavit as to whether he knew about Roger and

Tracey Breckenridge, who were on his trial witness list.

27. Although Judge Fahey was seemingly forthright at the hearing, his testimony

demonstrated that he cannot accurately recall significant aspects of this case. Given his admittedly

faulty recollection, Judge Fahey's testimony is not sufficiently reliable and competent evidence to

find that the People committed Brady violation relative to the index card.

28. Attorney Randi Bianco was called as a witness by Defendant, and she testified that

she never saw the Montgomery Report (Exhibit 8), the V anPatten Report (Exhibit 9), or the

Anderson Report (Exhibit 10) in the attorney file that was maintained by Judge Fahey.

Significantly, on cross-examination, Attorney Bianco also testified that she did not find the Lortie

Report in the case file. See HT, p. 76. As Judge Fahey acknowledged on cross-examination, he

apparently had a physical copy of the Lortie Report at some point during his representation, as he

seemingly used that document at trial. See HT, pp.920-24, 950. The defense has not offered any

explanation as to why the Lortie Report, which was in Judge Fahey's physical possession during the

trial, was not in the case file when Attorney Bianco reviewed it. In the absence of any explanation

from the defense, it's fair for this court to conclude that the defense lost or misplaced the Lortie

Report.

29. As demonstrated, that the Lortie Report was not in the case filed does not mean that

Judge Fahey never had it. Similarly, that Attorney Bianco did not find the Montgomery, V anPatten,

and Anderson Reports in the case file does not mean that Judge Fahey did not have such reports at

time of trial. Perhaps those reports are in the same location as the now-absent Lortie Report.

30. Defendant called Robert Calver, who worked as a defense investigator for both

Judge Fahey and Attorney William Walsh, who represented Richard Thibodeau. On direct

examination, Calver that he never received any reports concerning whether Heidi Allen was an

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informant. See HT, p.176. On cross-examination, he admitted that he did not look at every

document that was in either Judge Fahey1s or Attorney Walsh's files. He acknowledged that he can1t

say what either attorney had in their file with any certainty. See HT, p.183. Consequently, Calvef1s

testimony does not assist the court in its determination of this issue.

31. For the purpose of this motion, Defendant has the burden of demonstrating that he

did not receive the specified documents. As set forth above, there is a distinct possibility that Judge

Fahey may have received the specified documents prior to trial and simply doesn't recall that fact

presently. Further, the absence of the Lortie report from the case file raises the possibility that

Judge Fahey in fact possessed all of the specified documents but then lost or misplaced them.

Given these real possibilities, which the defense cannot discount or disprove, Defendant cannot

sufficiently establish that the People failed to disclose the specified documents. Since the

Defendant has the burden of affirmatively establishing that a Brady violation occurred, this court

should therefore DENY that portion of his motion.

32. Although Defendant has the burden of showing that a Brady violation occurred,

through the testimony of Donald Dodd and Terry Whipple, the People affirmatively established that

all of the specified documents were turned over to the defense.

33. Terry Whipple testified that Dodd developed a procedure so that every original

document that was copied was physically marked with a green highlighter so that they would have a

visible record of what had been turned over to the defense. To be clear, the original document was

marked with green highlighter; no mark was made on the copy that was provided to the defense.

The procedure was memorialized in a writing, and all of the persons who were in:volved in the

process signed the document to indicate that they were familiar with the procedure. See HT,

p.1484-87; Exhibit :MMM.

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34. Donald Dodd testified to the procedure that he developed, noting that three exact

reproductions were made of every document--one for Attorney Fahey, one for Attorney Walsh, and

the other was for the court. Dodd reit~rated that the original document was marked with green ink

to verify that it had been reproduced in its entirety. See HT, p.1638-39.

35. Dodd testified that he initially provided both attorneys with five boxes of material,

which included documents received by the Sheriffs Department or District Attorney's Office

through December 14, 1994. See HT, p.1640-41. In fact, Dodd testified that Judge Fahey appeared

at the DA's Office on December 14, 1994 and was given the opportunity to review the entire

Sheriffs investigative file. See HT, p.1646, 1659-60. Dodd memorialized Fahey's visit in writing,

and that document was received by this court as Exhibit 12. Notably, the Montgomery, VanPatten,

and Anderson Reports are all date-stamped as having been received by the Sheriffs Department on

December 9, 1994. See Exhibits 8, 9, and 10.

36. Significantly, Dodd testified about the in-court discussion that took place on

December 8, 1994 relative to Heidi Allen's status as a confidential informant. After that court

appearance, on that same day, Dodd met with investigators and asked them to search the entirety of

the Sheriffs file for any documents indicating whether Heidi Allen had provided information as a

confidential informant and/or was working as a confidential informant. The next day, the DA's

Office received documents from Michael Montgomery, Christopher VanPatten, and Michael

Anderson relating to Heidi's status. See HT, pp.1661-63.

3 7. In regards to those three reports, Dodd made a duplicate copy for his file and wrote

"My copy" at the top and identified issues with the statements. Dodd wrote the letters "H-A"

(referencing Heidi Allen) on his copy, as well as the word "Brady." He also made a specific

notation ('TOT") to indicate that the document had been turned over to both attorneys. Dodd also

11

marked certain portions of all three statements in green, blue, or pink ink to highlight information

that was important. See HT, pp.1664-69; Exhibit QQQ.

38. Based upon the reliable and credible testimony of Donald Dodd, it is reasonable to

conclude that he met with investigators after the December 8, 1994 court appearance to determine if

there was any additional information relating to Heidi Allen's status as a confidential informant.

The next day, in response to his inquiry, Dodd received the disputed reports from Deputies

Montgomery, VanPatten, and Anderson. It seems that these reports were specifically created in

response to Dodd's request. Upon receiving the reports, Dodd immediately recognized that they

constituted potential Brady material, so he copied each report and provided the same to Attorney

Fahey on December 14, 1994. See HT, p.1640-70.

39. There is no reasonable basis to believe that Dodd intentionally withheld the

Montgomery, VanPatten, and Anderson reports from Defendant. It strains reason to believe that he

would specifically seek out information about Heidi's status as a confidential informant after the

December 8, 1994 court appearance and then purposefully hide such information from Defendant,

especially after he highlights the reports and writes the word "Brady" on his work copy. It's clear

that he asked the investigators, and sought reports, so that he could fulfill his ethical obligations.

Likewise, there's no logical reason for Dodd to provide the documents to Attorney Walsh but not

Judge Fahey, particularly since Dodd knew that the two attorneys were coordinating their defenses.

There is no rationale view of the evidence to support that Dodd willfully violated Brady.

40. There is no evidence of prosecutorial malfeasance, and it seems unlikely that Donald

Dodd omitted the documents through careless mistake. The content ofDodd's testimony, as well as

his demeanor, shows his meticulous nature. The trial testimony made clear that Donald Dodd is

methodical, as evidenced by the multiple writings that he created to document procedure and

memorialize certain events. It is highly unlikely that he specifically marked the disputed reports as

12

"Brady,u noted that he turned those documents over to defense counsel ( 11TOT"), and then simply

failed to follow through. The reasonable view of the evidence is that Dodd provided both defense

attorneys with the Montgomery, VanPatten, and Anderson Reports.

41. That Dodd provided these three reports to Judge Fahey is also supported by

reasonable inference based upon the fact that Judge Fahey and William Walsh shared information,

shared an investigator, and coordinated their defenses (so much so that Walsh sat at the defense

table during Defendant's trial). To be clear, the People are not arguing that since Walsh possessed

the reports, Fahey possessed them by inference. Although Fahey did have access to Walsh's file

and used documents from Walsh's file during the trial, the People are not making a tautological

argument.

42. At the December 8, 1994 court appearance, Fahey indicated that he had learned

about the Lortie Report from Walsh. Given the discussion at that appearance, it was clear that both

attorneys wanted all information about Heidi's status as a confidential informant. If Walsh received

the Montgomery, VanPatten, and Anderson reports thereafter, a fact that Defendant concedes, it is

unimaginable that he did not discuss the content of those reports with Fahey. (It's clear that Walsh

reviewed every single piece of paper, as evidenced by how his file was organized.) Given the

degree of coordination between the two attorneys, logic dictates that Walsh would have at least

mentioned the existence of those reports to Fahey. It strains reason to believe that Walsh would

conceal the information in these reports from Judge Fahey, who, for all intents and purposes,

essentially served as co-counsel. If Dodd had provided the reports to Walsh but not Fahey, it's clear

that the issue would have been raised to the trial court, just as the Lortie Report was discussed on

December 8, 1994.

43. Without casting aspersions, the court heard testimony from William Walsh regarding

the condition of Judge Fahey's file at one point prior to trial. As described by Walsh, Fahey had his

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filed "spread out all over his attic" and "there were papers everywhere." S_e_e HT, p.1603. It is

certainly possible that the subject reports were misplaced. Although Judge Fahey had boxes of files

at trial, Walsh also brought his organized files as a backup measure. There were limes during the

trial when Judge Fahey couldn't locate a piece of paper in his file so Walsh had to find a report I

statement from his file. Notably, William Walsh testified that when Judge Fahey would finish with

a piece of paper at trial, "he'd toss it on the desk," at which point Walsh would "scramble to get it"

to put it back in his file. See HT, 1604-05.

44. Throughout the course of this hearing, there were times when the parties struggled to

find certain documents, scouring our tables, the court's bench, and the podium for a particular

exhibit. At times, items of evidence would end up at counsel's table, mixed up with other papers.

Although not evidence for the purpose of this hearing, our experience is illustrative of how

documents may be misplaced or misfiled during a hearing or trial. Perhaps something similar

happened to Judge Fahey's copies of the subject reports, which would explain why the Lortie Report

is allegedly missing from the file, despite the fact that Fahey used the document at trial.

45. To the extent that Defendant alleges that the People failed to provide the

Montgomery, VanPatten, and Anderson reports as a result of a good faith mistake, it is equally

possible that Judge Fahey misplaced a folder containing those documents through human error.

Given the distinct possibility that the defense received and then misplaced the documents, as

apparently occurred with the Lortie Report, this court does not have a sufficient factual basis on

which to find a Brady violation.

46. In regards to the Kleist Report (Exhibit 11-A), the testimony established that those

documents were received by the District Attorney's Office on May 16, 1995, at which point they

were date-stamped by the DA's Office. Those documents were copied by the DA's Office, marked

with a green highlighter, and subsequently turned over to the Sheriffs Department, where they were

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date-stamped as being received on May 23, 1995. See HT, pp.1499-1506, 1523. Although nonnal

protocol dictated that the Sheriffs Department would receive information first, it appears that the

involved investigators departed from the normal procedure because Defendant's trial was about to

begin, and they wanted to make sure that Donald Dodd had the items to review and to provide to

defense counsel prior to trial. See HT, pp.1523.

47. At the hearing, the People introduced a correspondence from Donald Dodd to both

Joseph Fahey and William Walsh, dated May 17, 1995. In that letter, Dodd specifically stated, "I

am providing with this letter copies of additional discoverable property obtained since my last

disclosure to you by letter dated April 25, 1994." See HT, pp.1675-77, Exhibit JJJ. Several

documents were attached to that cover letter. The first attached document was a copy of the "Kleist

Report,11 dated May 16, 1995, which also contained a date-stamp indicating it was received by the

District Attomey1s Office on May 16, 1995. In that report, Nick Kleist wrote the following:

This writer along with Inv. Yerdon while making an inventory of items that were recovered during the area searches of the Heidi Allen Abduction, found paperwork that referred to her as a confidential informant, a photograph of her, names and numbers, a Sheriffs Dept. card, and paperwork with drug information, also notes from day of abduction and a 1993 personal planner. I marked said items as evidence and secured them in evidence locker, items found in box #3.

See Exhibit JJJ.

48. The very next document attached to Dodd's letter from May 17, 1995 contained a

photocopy of the following items: (i) a photograph of Heidi Allen (wearing a peace symbol t-shirt);

(ii) a Sheriffs Department card (with no officer name); (iii) the index card with Heidi1s name and

pedigree information, and (iv) the back of the index card, with the left and right thumb prints, dated

12/11/91. See Exhibit JJJ. These are the same items that Kristine Duell recovered at the D& W

Store and turned over to the Sheriffs Department on January 23, 1992. See HT, pp.1881-82. They

are the same items referenced in the Montgomery and VanPatten Reports. See Exhibits 8 & 9. All

of those items are also contained in Exhibit B, received at this hearing. See HT, p.78.

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49. Donald Dodd's letter from May 17, 1995, along with the attached documents, was

offered by Defendant and received as Exhibit 11-A. That same letter, with attachments, was also

offered by the People and received as Exhibit JJJ. The distinction between these two exhibits is that

Exhibit JJJ contained green marks, indicating it had been copied and turned over to defense counsel.

50. At the hearing, Attorney Bianco testified that she had never seen Exhibit 11-A prior

to receiving the People's response to the instant motion in October of 2014. Attorney Bianco

testified that she had not seen Donald Dodd's letter from May 17, 1995, or any of the attachments,

prior to October of2014. She claimed that Exhibit 11-A was not in either Gary or Richard

Thibodeau's files. See HT, p.42-4 7.

51. On direct examination, Judge Fahey testified that he never saw Exhibit 11-A while

he was representing Defendant. When asked how he could be sure, Fahey responded that he "would

have remembered certainly the code name and the photograph and the thumb prints." See HT,

pp.137-39. A short while later, the following exchange took place between defense counsel and

Judge Fahey:

Q. Had you any knowledge regarding the information of Heidi Allen's informant status being compromised in a parking lot of the D& W?

A. No.

Q. Had you had that information and seen those reports before trial, how would you have used that information?

A. Well, I would have probably had my investigator go out and ascertain how it occurred, who may have seen it and -- and inquire further into her status as an informant.

See HT, p.143. Through that questioning, the defense was attempting to establish that Judge Fahey

must not have received the information, for if he had, he would have investigated the issue further.

52. This court should not accept Judge Fahey's failure to investigate the dropped card as

proof that he didn't know about it. On direct testimony, Judge Fahey indicated multiple times that

16

he was not aware of Heidi Allen being an informant. See HT, p.129, lines 6-8; p.132, lines 15-17;

p.143, lines 15-21. To bolster Judge Fahey's claim that he was unaware of Heidi's status, Attorney

Peebles asked him, "And had you known about Heidi Allen's informant status, what--how would

you have argued regarding the materiality of the diary." Judge Fahey responded as follows:

Well, the--1 would have argued that because I now know from the second trial that there was no mention of either of the Thibodeaus in a diary, that the lack of any mention of the Thibodeaus in the diary, and the fact that she was an informant for the Oswego County Sheriffs Office, that clearly she had no contact with the Thibodeaus and they were not potential source of peril to her.

See HT, p.144, lines 13-22. The clear import of his response was that he didn't know about Heidi

Allen's status as a confidential informant. See HT, p.937, lines 7-12.

53. As discussed previously, Judge Fahey acknowledged on cross-examination that he

had a physical copy of the Lortie Report at time of trial. See HT, pp.920-24, 950. In that report,

Lortie note only referenced that he recognized Heidi Allen as a confidential informant who worked

with the team in 1991 and 1992, he also wrote that her CI file "would include names of dealers that

ALLEN would have been involved with." See Exhibit 5. Despite having this information at time

of trial, Judge Fahey did not make the argument that he described in his response to defense

counsel's question. See HT, p.144, lines 13-22. Accordingly, that Judge Fahey did not mention the

dropped index card at trial or during motion arguments does not mean that he was unaware of that

information.

54. As demonstrated above, Judge Fahey's independent recollection of events associated

with this case are not entirely reliable. Given Judge Faheis failure to review the file to refresh his

recollection prior to testifying, the fact that he does not recall receiving Donald Dodd's letter of May

17, 1995 (and the attached documents) is not reliable proof that the People failed to provide the

material set forth in Exhibit 11-A.

17

55. On cross examination, Attorney Bianco showed William Walsh a selective portion of

Exhibit 11-A. She did not show him the cover letter from Dodd. In any event, Walsh expressed

uncertainty and responded that he really didn't recall whether he received it or not. See HT, p.1626.

As such, Walsh's testimony neither supports nor refutes Attorney Bianco's claim that Exhibit 11-A

did not appear in either trial attorney's case file.

56. It is clear that Donald Dodd wrote a letter on May 17, 1995 and attached multiple

documents to that correspondence, including the Kleist Report and various items associated with

that report. The letter was addressed to both defense attorneys and was copied to the court. From a

practical point of view, it makes little sense for the trial prosecutor to produce a discovery document

that contains Brady material and then fail to provide it to either attorney. It is only logical for this

court to conclude that Dodd in fact provided Exhibit 11-A to both defense attorneys, particularly

given the green marks that appear on Exhibit JJJ.

57. The evidence offered by the People during this hearing affirmatively establishes that

Donald Dodd provided Defendant will all reports and information relating to Heidi Allen's status as

a confidential informant and the fact that an index card with her information was dropped at the

D& W store. At the hearing, Donald Dodd showed that he possessed a clear and reliable

recollection of his conduct; however, this court does not have to rely solely upon his memory.

During the discovery process, Dodd established protocols to make sure that all discoverable

material was provided, and he made notations and created writings to memorialize the disclosure of

Brady material. Dodd's testimony was not only reliable and credible, but it was verifiable. His

account is supported by documentary evidence. This court should therefore affirmatively find that

the prosecution complied with Brady and dismiss that branch of defendant's motion.

58. If the court has questions as to whether the People provided all exculpatory material

to Judge Fahey, it should still deny the Brady portion of this motion since the defense has failed to

18

• •

sufficiently establish that the prosecution in fact failed to provide the subject material. For the

purpose of this motion, the defense carries the burden of showing that a Brady violation occurred.

Defendanes trial attorney should be in the best position to advise the court as to what he received;

however, Judge Fahey's recollection of events is not reliable.

59. The unreliability of Judge Fahey's memory is apparent. On July 29, 2014, Fahey

provided an initial affidavit in support of this motion in which he attested that he had never heard of

Roger Breckenridge or Dan Barney. As demonstrated in the People's motion response and at the

hearing, Roger Breckenridge's name appeared on Fahey's trial witness list. Dan Barney's name

appeared in a report that Fahey attached to a pretrial motion that he filed on May 1, 1995, just

weeks before the trial began. At the hearing, Fahey did not recall cross-examining Susan Cowen at

trial. More significantly, he did not remember calling Theresa Crawford as a witness, even though

she dated Richard Thibodeau and provided alibi testimony for him. Further, in his initial affidavit,

Judge Fahey stated "with certainty" that he had never seen the April 27, 1994 report prepared by

Sgt. Lortie. At the hearing, he not only admitted that he had previously seen the Lortie Report and

was familiar with its content, but he ultimately acknowledged that he had physical possession of the

report at time of trial. Given the apparent flaws in Judge Fahey's memory, and given his admitted

failure to review the case file prior to testifying, the court cannot rely upon the accuracy of his

independent recollection in determining this motion. Although Judge Fahey was seemingly

forthright at the hearing, his testimony is unreliable and should not serve as the basis for finding a

Brady violation. For this reason, the court should deny the Brady portion of defendant's motion.

II. Even if the court finds that the People failed to disclose all information regarding Heidi Allen's prior status as a confidential informant, including the fact that the index card was dropped, the court should still deny this portion of his motion since there is not a reasonable possibility that this information would have resulted in a different outcome.

19

. .

60. Although the People maintain that the trial prosecutor properly disclosed all

information relating to Heidi Allen's status as a confidential information, including information

relating to the index card being dropped, should this court determine otherwise, this court should

still deny the Brady portion of his motion because there is not a reasonable possibility that the

outcome of the trial would have changed had such information been disclosed.

61. Judge Fahey initially made a generalized request for any and all Brady material in

his pre-trial motion. Although argued otherwise in our initial motion response, the People hereby

concede that the in-court discussion on December 8, 2014 converted Judge Fahey's general request

for exculpatory material to a specific demand for all information relating to Heidi Allen's status as a

confidential information, which would encompass any information relating to the index card. Thus,

in examining the materiality element, this court should examine whether there is a "reasonable

possibility" that the result of the trial would have been different. See People v. Garrett, 23 N.Y.3d

878 (2014). Even under this lesser standard, the court should deny Defendant's motion.

A. The information relating to Heidi's prior status as a confidential informant. including that the index card was dropped, would not have resulted in a different outcome since the trial court would have precluded such evidence on the grounds of relevancy and speculation.

62. Even under the lesser 11reasonable possibility" standard, Defendant would not have

been acquitted since the trial court would have precluded him from introducing any evidence

relating to Heidi's prior status as a confidential informant on the grounds of relevancy since she had

not met with law enforcement for more than two years prior to her disappearance. The court likely

would have recognized that Defendant's theory about unknown persons finding the index card and

then deciding to kidnap Heidi is wholly speculative and excluded it on that ground. Further, the

trial court likely would have held that the dropping of the index card was too remote in time to be

relevant to Heidi's kidnapping since more than 26 months passed between the two events.

20

"

63. At the hearing, Christopher VanPatten testified that he first met Heidi Allen to

discuss any information she may have had regarding drugs at her parents' residence on December

11, 1991. She was 16-years old at the time. V anPatten was accompanied by the supervisor of the

ACT Team, Sgt. Roy Lortie. According to VanPatten, the information Heidi provided was

"basically rumor mill, what she heard on the street." See HT, p. 1927-29.

64. VanPatten testified that since he was rather new to the ACT Team and didn't have

much experience with drug operations, he asked Heidi to meet with Deputy Michael Anderson.

V anPatten only met with Heidi on that one occasion. See HT, p.1931.

65. Michael Anderson testified that he met with Heidi Allen at the request of Christopher

VanPatten to conduct a debriefing. Although Anderson couldn't recall the date of the meeting, he

said that it took place at the old Sheriffs Department. Anderson testified that there was "no

substance to the conversation," explaining that the information she provided was "kid stuff." Heidi

did not provide him with any names. She also told him that she didn't use drugs and couldn't

purchase drugs. Although Heidi told Anderson that she would see stuff at parties, she couldn't

provide a location where drugs were being sold. After the debriefing, Anderson contacted

Christopher VanPatten and told him that it was "going nowhere, absolutely nowhere." See HT,

p.1976-77. According to VanPatten, Heidi Allen "was never used in any capacity as far as

furthering the investigation to the drug activity," and the information she provided did not lead to

anything. See HT, p.1958-59.

66. Based upon the credible and reliable testimony of both Christopher V anPatten and

Michael Anderson, Heidi Allen was never actually used as a "Confidential Informant," as that term

is commonly understood by law enforcement. She did not provide information that was used to

support an arrest or a search warrant. She did not purchase drugs on behalf of investigators. She

21

~ .

did not introduce undercover officers to drug dealers. Her involvement was limited to two brief

meetings where she provided limited information that could not be acted upon.

67. Even if the court were to find tha\ her limited contact with deputies made her a

confidential informant, the hearing testimony makes clear that such contact occurred more than two

years before her abduction on April 3, 1994. Quite simply, she was not a confidential informant at

the time when she was kidnapped. Given the limited nature of her contact with the deputies, and

given the amount of time that passed between that contact and the date of her abduction, her role as

a "confidential informant" is irrelevant to this case.

68. Defendant has argued that it is immaterial whether Heidi was actually a confidential

informant at the time of her abduction. Defendant's posits that if she were perceived as a

confidential informant, she would be treated as a confidential informant, regardless of her actual

status. Accordingly, Defendant argues that the dropping of the index card at the D& W store created

the perception that Heidi was a confidential informant, thereby putting her at risk.

69. Christopher VanPatten examined the contents of Exhibit Bat the hearing, and he

identified the 3x5 index card that he prepared when he met Heidi Allen. As he testified, it

contained Heidi's name, address, phone number, date of birth, Social Security number, code name,

height, weight, eye color, and hair color. The backside of the card contained her left thumbprint and

right thumbprint, as well as the date 12/11/91. See HT, p.1930; Ex.B. A review of the index card

shows that it does not contain the words "Confidential Informant" or "Cl." The card contained no

reference to the ACT Team. Indeed, the portion of the index card labeled "Deputy Working With:"

was left blank.

70. Kristine Duell, who was co-owner of the D&W Store at all relevant times, testified

that she found some papers laying in the driveway of the store. She observed that Heidi's name was

on the card. Believing the card contained sensitive information, Duell kept the paperwork on her

22

person and then contacted the Sheriffs Office. See HT, pp. 1878-79, 1893. She believed

Christopher VanPatten was the last officer in the store before she found the paperwork. See HT,

p.1880. In response to her call, someone from the Sheriffs Department went to the store and picked

up the papers. See HT, pp.1880-81. When shown Exhibit B, she pointed out the index card that

had Heidi Allen's name on it (and her thurnbprints on the back) as being the item that she found in

the parking lot. See HT, pp.1881-82. Kristine Duell was unsure of when she found the index card.

See HT, p.1884.

71. According to Kristine Duell, who examined the contents of Exhibit Bat the hearing,

she also found handwritten notes that were stuck to the index card. One note contained the names

"PJ Goreman" and "Tracy Matthew," but makes no reference to drug activity. Another note

contains the name 11Rob Labarge," with the words 11Acid-Seller11 above it. At the bottom of that

same note appears the phrase 0 works w/ Dennis Douglas," just above the word "speed." See HT,

p.1883, 1904-05; Exhibit B. Despite the number of witnesses called at this hearing, this court has

heard no testimony regarding P J Goreman, Tracy Matthew, Rob Labarge, or Dennis Douglas.

There is no evidence that any of these people were involved in Heidi's abduction.

72. The court also heard from John Cox, who is retired from the Sheriffs Department.

Cox testified about a "punch card" that he completed relative to a call that was received from Kris

Duell regarding property that was found at the D&W Store. Cox testified that he received the call

on January 23, 1992 and that he assigned Deputy Michael Montgomery to pick up the property that

same day. The "punch card11 indicated that the recovered property was turned over to (TOT)

Deputy VanPatten. See HT, 1913-15; Exhibit 144.

73. Based upon all of the testimony, it's clear that the index card was dropped by Deputy

VanPatten at the D&W Store, where it was recovered by Kristine Duell, who promptly called the

Sheriffs Department and ultimately turned it over to Deputy Montgomery on January 23, 1992.

23

The fact that the index card was dropped in the D& W parking lot more than two years prior to

Heidi's abduction is not relevant to this case and does not constitute Brady material.

74. While Defendant has argued that the dropping of the index card put Heidi Allen in

danger by revealing her status as a confidential informant. Although Kristine Duell mentioned the

index card to her mother, she did not show it to her. See HT, p.1884, lines 5-8. The evidence

shows that Duell found the index card shortly after it had been dropped and promptly turned it over

to law enforcement. It would be improper for this Court to accept Defendant's invitation to

speculate that a drug dealer saw the index card, concluded that Heidi was a confidential informant,

and then decided to retaliate against her. It strains reason to think that a drug dealer would find the

index card, drop it back on the ground, and then wait more than two years to remove Heidi as a

potential threat. Defendant's theory about the index card is not onJy unreasonable, it is speculative,

which renders it inadmissible. See People v. Gamble, 72 A.D.3d 544, 545 (1st Dept. 2010).

75. 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 person approximately a year and a half before the

homicide. The appellate court found 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." See Gamble, 72 A.D.3d

at 545, citing to People v. Primo, 96 N.Y.2d 351 (2001). Accordingly, even if Defendant knew

about Heidi's status as a confidential informant and the index card at time of trial, the court would

have precluded such evidence since it was speculative.

76. If Heidi had been kidnapped within days or weeks of the index card being dropped

on January 23, 1992, it would be more reasonable for the court to consider Defendant's theory that

24

she was abducted due to her perceived status as a confidential informant (although such argument

would still be speculative). Given the known timeline, it's unreasonable to believe that the index

card had anything to do with the kidnapping, particularly since there was no harassment, thfeats, or

other problems with Heidi while she worked at the store in the intervening two years. See HT,

p.1888, lines 2-7. Since Heidi was kidnapped more than 26 months after the index card was

dropped, there is no rational basis to believe the two incidents are related. The dropping of the

index card is too remote in time to be relevant to the kidnapping, and this court should find that

evidence relating to Heidi's status and the index card should be precluded on that ground.

B. Even if all of the information relating to Heidi's status as a confidential informant had been admitted at trial. there is no reasonable possibility that the jury would have reached a different outcome since such information would have undermined his defense and provided a motive for Defendant to kidnap and kill her.

77. For the sake of brevity, the People hereby incorporate by reference and reassert the

arguments set forth in the Affirmations that was filed by Chief ADA Moody as part of the People's

mo~ion response on or about October 10, 2014. See Affirmations, pp.70-75.

78. In short, if the trial court had admitted all of the infonnation regarding Heidi Allen's

status as a confidential infonnant, such infonnation would have undennined his defense by

providing a motive for Defendant to kidnap and kill her, thereby opening the door for the prosecutor

to introduce prior bad act evidence that showed Defendant's involvement in drug activity. Further,

such evidence would have given further credence to the testimony of Robert Baldasaro and James

McDonald. Thus, there is no reasonable possibility that the disclosure of Heidi Allen's status as a

confidential informant would have resulted in the jury acquitting Defendant.

25

•

Darlene Upcraft

79. Darlene Upcraft testified regarding her observations as she drove by the D&W store

on her way to the sunrise service at church on the Easter Sunday ofHeid's kidnapping. See HT,

pp.187-88. Upcraft described seeing a white rusty van parked in front of the store. See HT, p.189.

Upcraft testified that she conveyed the information about the van to a member of the Sheriffs

Department. See HT, pp.190-91. Upcraft later clarified that she passed the D&W at approximately

6:35 am, which is when she saw the white rusty van. When she passed the store again at 7:30 am

on her way home, she didn't see anything. See HT, pp.195-96.

80. Defendant has alleged a Brady violation, asserting that the officer failed to note the

"white rusty van" on the lead sheet. Even if the officer failed to write the vehicle description on his

report, that omission is not Brady material since the information is not exculpatory. Darlene

Upcraft observed the van more than an hour before Heidi disappeared, and the van was no longer

there when she passed by again at 7:30 am, which is approximately 15 minutes before Heidi was

kidnapped. Consequently, the court should find that there was no Brady violation in this regard.

81. WHEREFORE, for all of the reasons set forth above, this Court should deny that

portion of Defendant's CPL § 440. l 0 motion that is based upon an alleged Brady violation.

26

NEWLY DISCOVERED EVIDENCE

II. The court should deny that portion of the motion in which Defendant seeks a new trial based upon "newly discovered evidence" since the alleged evidence primarily consists of inadmissible hearsay and speculation, or such alleged evidence is otherwise wholly unreliable.

82. Except as noted below, for the sake of brevity, the People hereby incorporate by

reference and reassert the arguments set forth in the Affirmations that your affiant filed as part of

the People's motion response on or about October 10, 2014. See Affirmations, pp.1-57.

Notably, in accordance with the agreement reached on January 12, 2015, the People are no longer

seeking to dismiss this portion of the motion on the ground that it was not brought with due

diligence after Defendant learned of the alleged new evidence.

83. The evidence offered by Defendant during the hearing has primarily focused upon

establishing that James Steen, Roger Breckenridge, and Michael Bohrer are actually responsible for

the kidnapping and presumed killing of Heidi Allen. To establish their culpability, Defendant has

called numerous witnesses to testify to various statements allegedly made by the men over the past

twenty years. For these hearsay declarations to be received as evidence, Defendant must establish

that they fall under a recognized exception to the hearsay rule, such as a declaration against penal

interest. See People v. Settles, 46 N.Y.2d 154 (1978); People v. Shortridge, 65 N.Y.2d 309 (1985).

84. For a statement to qualify as a declaration against penal interest, the following four

elements must be present:

First:

Second:

Third:

Fourth:

The declarant must be unavailable as a witness at trial;

When the statement was made, the declarant must have been aware that it was adverse to his penal interest; and

The declarant must have competent knowledge of the facts underlying the statement; and

Supporting circumstances independent of the statement itself must be present to attest to the statement's trustworthiness and reliability.

27

Unless all four elements are present, the statement is inadmissible. See Settles, 46 N.Y.2d 154, 167;

Shortridge, 65 N.Y.2d 309, 312.

85. At the outset, Defendant cannot establish that Steen, Breckenridge, or Bohrer are

unavailable as a witness since each man testified at the hearing. All three men were subjected to

extensive questioning by defense counsel, whose examinations were thorough, exhaustive, and, at

times, combative. Yet none of these men refused to answer the questions put to them. Since Steen,

Breckenridge, or Bohrer are available as witnesses, Defendant cannot establish the First Element

necessary to admit their hearsay statements as declarations against penal interest. Consequently,

any evidence that relates to an out-of-court statement attributed to Steen, Breckenridge, or Bohrer is

inadmissible hearsay. If the evidence cannot be admitted at trial, it does not constitute "newly

discovered evidence" for the purpose of this motion.

86. The People recognize that the strict application of the hearsay rule and the exclusion

of third party admissions may, in some instances, infringe on a defendant's "weighty interest in

presenting exculpatory evidence, thus depriving him of a fair trial." . 11 See People v. Oxley, 64

A.D.3d 1078, 1084 (3rd Dept. 2009), Iv. den. 13 N.Y.3d 941 (2010), citing to Chambers v.

Mississippi, 410 U.S. 284, 302-03 (1973). This is not one of those instances. The People discussed

Oxley extensively in the Affirmation filed on or about October 10, 2014, explaining why this case is

distinguishable. For the purpose of this memo, the People incorporate by reference and reassert the

arguments set forth in that Affirmation regarding Oxley. See Affirmations, pp.21-25.

87. For the sake of organization, the People will separately address the evidence that has

been presented against James Steen, Roger Breckenridge, and Michael Bohrer below.

28

...

A. Evidence Regarding James "Thumper" Steen

88. During the hearing, Defendant called multiple witnesses who testified about various

statements allegedly made by James 11Thumper11 Steen. Since many of the statements are different

from the alleged declarations he made to other witnesses, the court must review each statement

separately and determine whether its admissible. Since the People have already addressed the "First

Element" of availability, the analysis below will focus upon the remaining elements of a declaration

against penal interest.

Statements of Tonya Priest

89. Although the statements that Tonya Priest attributed to James Steen are seemingly

the most significant declarations describing his alleged involvement in the kidnapping and killing of

Heidi Allen, Defendant declined to call Priest as a witness at the hearing. Rather than letting the

court hear directly from Priest so that it could assess her credibility firsthand, defense counsel

instead asks this court to rely upon a 3-page typed statement (dated 2/28/13) and a 12-page

handwritten statement (dated 3/1/1 3) that Priest provided to members of the Oswego County

Sheriffs Department, which were attached as part of a Brady disclosure that I sent to Attorney

Bianco on June 6, 2013.

90. Given the nature of the acts describe in Steen's alleged statements, the court may

reasonably conclude that Steen was aware that the statement was adverse to his penal interest at the

time he made it (Second Element), and that Steen had competent knowledge of the facts underlying

the statement (Third Element).

91. However, Defendant cannot establish the Fourth Element, which requires him to

demonstrate the presence of independent evidence that attests to the statement's trustworthiness and

reliability. The necessity of independent corroborative evidence is so fundamental that the Court of

Appeals has described this prerequisite as "the crucial inquiry" and "the most important11 element.

29

See People v. Shortridge, 65 N.Y.2d 309, 312 (1978); People v. Settles, 46 N.Y.3d 154, 167

(1985).

92. 'since Steen's purported statements to Priest are exculpatory to Defendant, the People

recognize that the court must use a more lenient standard of reliability, requiring admission of the

statement if competent independent evidence "establishes a reasonable possibility that the statement

might be true." See Settles, 46 N.Y.2d at 169-170; People v. Sheppard, 119 A.D.3d 986, 990 (3rd

Dept.), Iv. den. 22 N.Y.3d 1203 (2014). However, Defendant has not even met that lesser standard.

93. In the initial statements that Priest provided to law enforcement, she claimed that

Steen told her that he, along with Breckenridge and Bohrer, kidnapped Heidi Allen. In this version,

the three men took Heidi Allen to Breckenridge's residence on Rice Road (Town of Mexico), where

he lived with Jennifer Wescott. To support the story given by Priest, Defendant called Deborah

Vecchio as a witness at the hearing. Vecchio testified that her father's companion, Joyce Neat,

rented a trailer on Rice Road to a person Vecchio believed to be Jennifer Wescott's mother in the

winter of 1993 or 1994, although she was not certain of which year. See HT, pp.1197-98, 1219.

She later acknowledged that she didn't know exactly when the woman she believed to be Wescott's

mother moved in. See HT, p.1222, lines 12-14.

94. More significantly, on cross-examination, Deborah Vecchio testified that Jennifer

Wescott wasn't living at the trailer, but was "just staying there occasionally." Vecchio also stated

that she wasn't sure if Roger Breckenridge lived there. See HT, p.1225, lines 1-8. Shortly

thereafter, during a colloquy between the court and counsel, Attorney Peebles stated that the

defense was not claiming that Wescott and Breckenridge lived at the Rice Road address. When the

court remarked about her motion papers, Attorney Peebles indicated that the defense believes

Jennifer Wescott was simply "staying at the house." See HT, pp.1226-27.

30

95. Based on Attorney Peebles's reply to the court, it appears that Defendant is now

contending that Jennifer Wescott just occasionally stayed with her mother at the Rice Road address.

This position fundamentally contradicts the information provided oy Tonya Priest, who claimed that

Roger Breckenridge and Jennifer Wescott were living together on Rice Road. If they were not

living there, it makes no sense for Breckenridge to take Heidi to that location.

96. More significantly, the notion that Wescott and/or Breckenridge lived at the Rice

Road address on April 3, 1994 is completely refuted by the reliable and credible testimony of Darcy

Purdy. Purdy testified that she moved in to the trailer on Rice Road in either December of 1992 or

January of 1993, along with her then-boyfriend Tom Rathbun. See HT, pp.2132-35. Expressing no

uncertainty, Purdy testified that she was living at that Rice Road location (and had been

continuously doing so) when she got married on September 10, 1994. See HT, pp.2135, 2138.

Purdy clearly recalled walking everyday from that property to Route 11 (and back) when she was

getting ready for her wedding. See HT, pp.2138-39. Purdy's account is corroborated by a copy of

her wedding registry from the church, which showed her address on Rice Road. See HT, pp.2139-

41; Exhibit CCCC. Darcy Purdy further testified that she continued to live at the Rice Road address

after her wedding, up to the end of 1995. See HT, p.2141. The duration of her residence is

supported by items of mail that she received at that address in 1995, which are in evidence. See

HT, pp.2142-48; Exhibits EEEE & FFFF.

97. The reliable testimony of Darcy Purdy, which is supported by documentary

evidence, establishes that she lived at the trailer on Rice Road on April 3, 1994. Purdy's residency

at that address clearly and unequivocally refutes the story that Steen allegedly told Priest. Thus, the

People have demonstrated that the story about Steen, Breckenridge, and Bohrer bringing Heidi

Allen to the residence at Rice Road is absolutely false. Since there is no possibility that Steen's

alleged statements to Priest are true, the court should not accept them in to evidence as a declaration

31

against penal interest. See Settles, 46 N.Y.2d at 169-170; Sheppard, 119 A.D.3d at 990.

98. The version of events set forth in Tonya Priest's statements cannot be independently

corrobbrated in any respect. Priest claimed that Steen recounted taking Heidi Allen across the road

from the trailer, through thick trees to a location deep in the woods. According to Priest, Steen said

that they carried Heidi across railroad tracks and then took her inside of a cabin, where they cut her

up, buried her beneath the floorboards, and placed her clothes in a woodstove.

99. Defendant has sought to establish that a camp structure that Darron Vecchio built on

the south side of Rice Road is the cabin referenced in Tonya Priest's statement. Darron Vecchio

described the structure as a "fort." According to Darron, the flooring was partially concrete, and the

remainder was plywood or waferboard on top of pallets. There were no floorboards. Further, the

fort did not contain a fireplace or stove. See HT, p.2372-73. His description of the structure is

confirmed by his mother, Deborah Vecchio. See HT, pp.1229-30.

l 00. According to Darron Vecchio, his fort is approximately 300-400 feet directly south

of Rice Road. He testified that it would only take 3-4 minutes to walk to from the road to his fort.

Further, there are no railroad tracks between the road and that structure. In fact, Darron testified

that the railroad tracks are at least a quarter mile to a half mile from his fort. See HT, pp.2373-74.

As such, neither the construction nor the location of Darron's fort matches that of the cabin that

Steen allegedly described to Priest. Thus, the existence of Darron Vecchio's fort does not, in and of

itself, corroborate any aspect of the story that Steen allegedly made to Priest.

101. Defendant also presented testimony from Kathryn Bamford, a volunteer from the

Massasauga Search & Rescue Team. She serves as a K-9 training officer and team leader for that

organization, in addition to being a handler for a certified cadaver dog named "Hawk. 11 On October

23, 2014, Bamford took "Hawk" to the location in the woods where Darron Vecchio's fort had been

located. She testified that "Hawk" gave an indication that he detected the odor of human remains.

32

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See HT, pp.523-34, 542-43. On that same day, Bamford also witness Dana Malabar and his

cadaver dog named 11Libby11 conduct a search of the same area. "Libby" also indicated, but at a

different spot than "Hawk." See HT, pp.538-39, 553-54.

102. On cross-examination, Bamford admitted that she could not testify regarding the

condition of the remains (i.e. charred or not), how the remains came to be there, or at what point in

time the remains were there. See HT, p.558. Indeed, she acknowledged that the dogs could have

been detecting remains that were at that location as far back as 80 years ago. See HT, pp.552-53.

Given that large time span, that the two dogs detected human remains does not serve to corroborate

the statements that Steen allegedly made to Priest.

103. As part of its investigation, the Oswego County Sheriffs Office worked with the

Onondaga County Medical Examiner's Office to conduct a forensic search of the area where Darron

Vecchio's fort had been situated to determine if the site contained any human remains. They went

to that location because a New York State Police cadaver dog indicated at that site. Deputy Chief

Medical Examiner Dr. Laura Knight, M.D. and Forensic Investigator Joseph Lisi testified about the

methodology used during their search, which took place on July 29 & 30, 2014. Staff from the

M.E.1s Office manually sifted all of the dirt so that they could detect teeth or small bone fragments.

Ultimately, no human remains were located at that site. See HT, pp.1577-84, 2185-96.

Consequently, the forensic search does not corroborate the version of events that Priest described.

104. Defendant has attempted to place James Steen at the D&W store on the morning of

Heidi Allen's abduction through the testimony of William Pierce. At the hearing, Pierce stated that

he saw a van near the outer gas pump, and there was a man in the driver's seat who was talking to a

woman. Pierce claimed that as the woman walked away and crossed in front of the van, the man

went up behind her, struck the base of her skull, and then dragged her inside of the van after she

collapsed. See HT, p.975-76. He explained that he never contacted law enforcement about what he

33

saw for over 20 years because he "didn't want the notoriety. 11 See HT, p.976, lines 6-10.

Thereafter, defense counsel showed Pierce a photo of James Steen in a prison uniform that had

appeared in the media, and Pierce said that he recognized Steen as the man he saw at the D& W that

morning. See HT, pp.977-78.

l 05. On cross-examination, William Pierce said that he believed the driver of the van was

a "migrant worker" based upon his facial features and his beard. When asked if he meant that the

driver was Hispanic, Pierce responded, "yeah, could have been, yes. 11 When asked for further

clarification, Pierce stated that the driver "could be other than a full Caucasian." See HT, p.987.

James Steen is not Hispanic.

106. Notably, on July 25, 2014, Pierce met with Investigator Pietroski of the Oswego

County Sheriffs Department, at which time he gave a written statement. See HT, pp. I 006. When

questioned about that statement, Pierce acknowledged that he had said, "I did get a good look at the

driver that hit the woman and later saw on the news the police had Gary Thibodeau under arrest and

I said that's the guy that hit the woman at the convenience store at 104 and 1048 Easter morning."

See HT, p.1009. A short while later, I asked Pierce to take himself back to when he was watching

the news in 1994, and I asked him if he was certain at that time that it was Gary Thibodeau. He

responded, "Yeah." See HT, p.1010, lines14-20 (emphasis added).

107. Throughout the course of his testimony, Pierce gave varying accounts regarding

where his vehicle was located at the time he made his alleged observations and regarding his

distance from the van. See HT, p.1017, 1022-24. He offered various explanations for why he didn't

contact law enforcement immediately after he learned of Heidi Allen's abduction and why he failed

to come forward over the past 20 years. See HT, pp.1001-02, 1011-14. When considered in total,

William Pierce's testimony was simply unreliable and should not be considered as corroboration of

Ton ya Priest's account.

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l 08. Defendant has presented no independent evidence to establish the trustworthiness of

the statements that James Seen allegedly made to Tonya Priest. There is no outside corroboration to

provide an indicia of reliability. As such, Defendant has failed to establish the Fourth Element that

would allow these statement to be accepted as declarations against penal interest. Accordingly, the

statements that Priest attributed to Steen are nothing more than inadmissible hearsay that cannot be

considered "new evidence" for the purpose of this motion.

Megan Shaw

109. Megan Shaw testified that James Steen, in May of2010, admitted that he helped

dispose of Heidi Allen's body in order to be part of the VC (Vicious Circle) gang. Shaw testified

that Steen told her that Heidi was targeted because she went to somebody to get her boyfriend out of

the VC and went to the wrong person. According to Shaw, Steen never provided any names of who

was involved. Further, his alleged conduct was limited to disposing of Heidi's body; he was not

involved with killing her. See HT, pp.759-61, 767-68. Steen allegedly told Shaw that Heidi's body

was in a cabin in Parish. He claimed that she was chopped up into pieces and disposed around the

cabin, with parts of her underneath the floorboards and in a woodstove, and the remainder "scattered

outside the cabin." Shaw testified that Steen showed her the location of the cabin on his phone. See

HT, pp. 760-61. Steen allegedly referenced the described conversation on Father's Day of that same

year. See HT, pp. 761-62. On cross-examination, Shaw verified that Steen never mentioned the

names Roger Breckenridge or Michael Bohrer. See p.767.

110. Presuming that James Steen made the comments that Shaw attributed to him, the

court must first determine whether the statement was against his penal interest, and if so, was Steen

aware of that fact. Since he did not admit to killing Heidi Allen but only to assisting in the disposal

of her body, which would constitute the crime of Tampering with Physical Evidence, a Class E

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Felony. See Penal Law§ 215.40. According to Shaw, the statement was made in May of 2010,

well past the five year statute of limitations for that offense. At the time the statement was made, it

was not against Steen's penal interest, so it is therefore inadmissible as hearsay.

111. Further, to receive a statement as a declaration against penal interest, the court must

find that the declarant had competent knowledge of the facts underlying the statement. While Steen

could properly speak to his actual alleged involvement (i.e. disposing of body), there is nothing

before the court to establish his basis of knowledge for the other comments attributed to him. If he

was not personally present for the kidnapping, he cannot say who kidnapped her. Nor can he state

why she was kidnapped without reiterating hearsay declarations of another regarding motive. Thus,

if the court permitted Megan Shaw to testify at trial, she properly could only repeat the statements

regarding Steen's participation in the disposal of Heidi's body. See People v. Brensic, 70 N.Y.2d 9,

16 (1987).

112. However, Megan Shaw's testimony should not be received as a declaration against

penal interest relative to Steen because there is no external evidence to support the trustworthiness

or reliability of the statement. Although Shaw claims that Steen described the specific location of

the cabin in Parish and even showed it to her on his phone, the court heard no evidence regarding

that location. Although Inv. Richard Haumann from the Federal Public Defender's Office searched

multiple locations in the woods on Rice Road in the Town of Mexico, there is no evidence of any

search at the location described by Shaw. See HT, pp. 701-731. There is no testimony of a cadaver

dog being taken to that location. The People submit Defendant's failure to investigate that location

speaks volumes about the reliability of Shaw's claim.

113. While Defendant presented no evidence to support Megan Shaw's testimony, the

People presented evidence that seriously undermines the reliability of Steen's purported statement.

The court heard from Lance Mason, who retired from the New York State Department of

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Correctional Services in 2007, after 26 years of service. He was the Deputy Superintendent for

Security Services at the time of his retirement. Mason testified that he was the founder of the

Vicious Circle motorcycle club, which was founded around 2000, with the initial chapter in Adams

Center, New York. A chapter of the club wasn't formed in Oswego County until 2003 or 2004. See

HT, pp.2329-31. Mason further testified that while he did not know Michael Bohrer, Roger

Breckenridge, or James Steen during the period that he was associated with the Vicious Circle. See

HT, pp.2331-32.

114. The testimony of Lance Mason directly refutes the idea that the Vicious Circle (VC)

motorcycle club was in any way involved in the abduction of Heidi Allen in 1994. As such, the

People directly demonstrated that James Steen's alleged statement to Megan Shaw simply is not

true. Accordingly, the court should not accept Shaw's testimony as a declaration against penal

interest relative to Steen.

Joseph Mannino

115. Joseph Mannino testified that he was incarcerated in the Oswego County Jail with

James "Thumper" Steen in 2011. See HT, p.640. According to Mannino, Steen told him that the

Thibodeaus didn't have anything to do with Heidi Allen. Steen allegedly said that he hauled the van

that was used in the kidnapping to Canada and had it scrapped. See HT, p.641. Mannino did not

testify to any aspects of the kidnapping.

116. On cross-examination, Mannino confirmed that Steen did not say that he abducted or

killed Heidi Allen. Nor did Steen say anything about Michael Bohrer or Roger Breckenride. Steen

did not mention Murtaugh1s scrap yard. See HT, p.646. Mannino also confirmed that Steen did not

explain his basis of knowledge for believing the van was involved with Heidi Allen. In fact,

Mannino acknowledged that Steen could have been simply speculating. See HT, p.646-47.

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117. On direct examination, when asked if Steen had said anything about Heidi's status as

an informant, Mannino replied, 11He said she was a rat." See HT, pp.641-42. Of course, Mannino

did not include this portion of his testimony in the sworn statement that he provided to the Federal

Public Defender's Office on July 28, 2014. See HT, pp.647-651. On cross, Mannino also

acknowledged that in his sworn statement of July 28, 2014, he said "Thumper never mentioned the

Thibodeaus when he made the statement about squashing the van." See HT, pp.651-52. That

statement directly contradicts his testimony before this court.

118. Given the nature of the statements that Mannino attributes to Steen, the court cannot

conclude that Steen knew the declarations were against his penal interest. Even Steen believed the

statement to be incriminating, he did not set forth the basis of knowledge for his claim that the van

was involved in Heidi's kidnapping. If the statement was speculative, it cannot be admitted as a

declaration against penal interest.

119. Notably, James Steen testified why he thought he had hauled a van that was used in

the Heidi Allen abduction. Steen explained that he previously drove truck and used to haul for

Murtaugh's scrap yard, taking their scrap metal to various locations, including facilities in Canada.

See HT, p.220-222. Steen testified that he believed he started to work with Murtaugh's in the

summer of 1994, or the end of 1994, or the spring of 1995. See HT, p.231. After a series of

questions on the subject, Steen ultimately explained that he believed he had hauled a van that

contained Heidi Allen's remains based upon statements by Roger Breckenridge. Steen testified that

he believed Breckenridge and Richard Murtaugh had picked up (and possibly stolen) a van from

Gary Thibodeau's property, which may have contained Heidi. See HT, pp.284-86, 293-95. Both

Richard Murtaugh and Roger Breckenridge confirmed that they had removed a van from

Defendant's property. See HT, pp.348-50, 740-41, 743-747. Consequently, even if Steen made the

statement described by Mannino, it appears that Steen's comment was based upon a combination of

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hearsay and speculation rather than his personal knowledge. Thus, the statement should not be

admitted as a declaration against penal interest.

120. In any event, Joseph Mannino's testimony is simply unreliable. As described above,

his testimony varied from the sworn statement he previously provided defense counsel. Further, he

has an extensive criminal history and failed to provide information about Steen's alleged statements

to law enforcement on multiple occasions since 2011, even though he was seeking to work as a

confidential informant. See HT, p.653-59.

Ronald Clarke

121. Ronald Clarke testified that a few years after Defendant's trial, James Steen was at

his house and made various statements to him and his children about the Heidi Allen case. Steen

allegedly said, "She's long gone now" and "She's gone to Canada." Clarke also testified that Steen

said, 11And I know more about the Heidi Allen case than the Oswego County Sheriffs, they got the

wrong guys," as well as "They got the Thibodeaus in there, and the Thibodeau boys didn't do it."

See HT, p. l 051. The described hearsay statements are not declarations against penal interest and

should not be considered newly discovered evidence, as they are inadmissible. As Clarke

acknowledged, Steen never stated his basis of knowledge and may have just been expressing a

belief. Steen did not make any statements to Clarke in which he admitted to being involved in the

abduction, killing, or disposal of Heidi Allen. See HT, p.1063.

Amanda Braley

122. Amanda Braley testified that in late 2006 or early 2007, she was at a party at Rodney

"Shaggy11 Wesiis house when she heard James Steen say, "You know me, Shaggy, I'm not afraid to

go to prison, I'll go for anybody," and then, after a brief pause, continued, "I can, however, tell you I

will never see a day in prison for what we did to Heidi." See HT, p.673. The People submit that

Braley's testimony on this issue is simply unreliable. As Braley acknowledged on cross

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examination, she previously provided a sworn Affidavit to Inv. Haumann from the Federal Public

Defender's Office. Although Braley knew it was important to be truthful and to provide all

information in the affidavit, she never mentioned the alleged statements from Steen in that affidavit.

See HT, pp.693-94. The failure to mention Steen's purported admission is a significant omission,

and the court should conclude that her testimony on this issue was a recent fabrication.

123. Further, the nature of Braley's responses to questions on cross-examination raise

questions about her credibility. Although she claimed that she believed Breckenridge was involved

in Heidi's disappearance, she continued to voluntarily hang out with him. See HT, pp.681-84.

According to Braley, she came forward after reading all of the newspaper reports about this case in

August of2014, during which she picked up many details about the case. See HT, p.685-87.

However, a short while later she stated that she did reach out to defense counsel. Instead, she said

that Tonya Priest put her in contact with Attorney Peebles. See HT, p.688-89. Moreover, while she

claimed to truly believe Breckenridge's statement that Heidi Allen's body was in a van in Canada,

she admitted that in 2006 she went with in to the woods with Tonya Priest to look for a cabin with

Heidi1s remains. See HT, pp.694-95. Based on the nature ofBraleis responses, the People submit

that her testimony is not sufficiently reliable to serve as a basis for granting a new trial. See HT,

pp.682-95.

B. Evidence Regarding Roger Breckenrige

Amanda Braley

124. Amanda Braley testified that Roger Breckenridge talked about Heidi Allen in her

presence and said that "he took that bitch to the scrap yard in the van, they had it crushed, and that

she was shipped to Canada." See HT, p.671. When Jennifer Wescott told Breckenridge that he

"shouldn't be talking about that shit, 11 he purportedly responded, "What, Jen, it's done and over with,

and besides, nobody's ever going to find her." These comment was allegedly made during a

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gathering at the home of Sharon and Paul Wescott (Jennifer's parents) around 2002 or 2003. See

HT, pp.669-70. Braley later acknowledged that Breckenridge did not say how Heidi came to be in

the van or where the van came from. Nor did he say anything about kidnapping Heidi from the

store. He did not admit to killing her. He did not say that he dismembered or burned her. He never

specified whether he had even had contact with her while she was alive. See HT, pp.678-79.

125. If Roger Breckenridge made the statements alleged by Amanda Braley, his basis of

knowledge is not entirely clear. His comment may very well have been based upon his speculative

belief that Heidi's Allen remains were in the van that he and Rich Murtaugh hauled from Gary

Thibodeau1s property after her disappearance. Accepting Braley's account as accurate, the fact that

he made these comments in front of several people indicates that he did not perceive the statement

as being against his penal interest, particularly when he remarked, "it's done and over with. 11

Indeed, Braley testified that Roger did not seem concerned about it. See HT, p.680.

126. Moreover, there is no external indicia of reliability regarding Breckenridge1s

statements. There is no other evidence that corroborates his statements or shows that they might be

true. In the absence of any other evidence to establish that Breckenridge's remarks may have been

true, the court should not accept them as declarations against penal interest.

127. Further, for the reasons already described, the court should conclude that Amanda

Braley's testimony is unreliable and unworthy of belief.

Christopher Combes

128. Christopher Combes testified that Roger Breckeridge worked with him at his

brother's paving company. According to Combes, some time in the 2000s, Breckenridge brought up

Heidi Allen's name while they were changing tires. Although the two men were not friends and

only had a business relationship, Combes claims that Breckeridge said, 11We chopped her up, we put

her in a wood stove and put her in a vehicle and sent her to Canada." See HT, pp.1129-31. Combes

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explained that he didn't take what Roger had said credibly. He took the statement "with a grain of

salt." See HT, pp.1131-32, 1134. As Combes made clear, the two men did not have a close

friendship where they would confide personal secrets. See HT, pp.1133-34. Combes confirmed

that Breckenridge did not admit to kidnapping Heidi or taking her from the store. Nor did

Breckenridge specify whether Heidi was alive or dead when saw her. No details were provided.

See HT, pp.1137-38.

129. The court should not accept the testimony of Christopher Combes as "new evidence"

since there is no indicia of trustworthiness or reliability to Breckenridge's statement. There's no

evidence that suggests that Breckenridge's statement was actually true. Indeed, the circumstances

surrounding the disclosure strongly suggest that the claim is a fabrication meant to gamer attention.

If Breckenridge had actually committed the acts described, it is unreasonable to believe that he

would simply blurt out this admission to a co-worker with whom he has no personal relationship.

That his statement came seemingly out-of-the-blue is further indication that the comment was

bluster, which is the way that Combes interpreted it. Given the totality of the evidence, this court

should give the comment the same weight and consideration that Combes gave it. Breckenridge's

statement should not be viewed as a true admission, and given its apparent unreliability, it shouldn't

be the basis for granting a new trial.

Jessica Howard

130. The court heard testimony from Jessica Howard, who married in to the Breckenridge

family. See HT, pp.114 I -4 2. Howard testified about certain oral statements that she claimed to

have heard from Roger Breckenridge. Although she could not provide a year, she described being

at McDonald's and hearing Roger make statements referencing Heidi Allen. He allegedly said, "the

bitch ain't going to be found" and "she's a rat," as well as "She ain't going to be found." Howard

testified to her belief that the "rat" comment referred to drugs, but she didn't explain how she

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reached that conclusion. She also claimed that Roger said that the government was wasting its time

looking for Heidi. See HT, pp.1150-51.

131 . Defense counsel sought to take advantage of Jessica Howard's faculties and

attempted to lead her in a significant way, at one point asking, 110kay, how about did Roger ever say

that he killed Heidi because she was going to call the cops on him and tell them about selling drugs?

Did he say that?11 See HT, p.1153, lines 2-4. The court sustained the objection, noting that counsel

went over the board on leading. Ultimately, Howard acknowledged that Roger Breckenridge never

told her that he kidnapped Heidi Allen, or that he killed her, or that he disposed of her body. He

never told Howard what happened to Heidi's body or told her the location of the body. See HT,

p.1159.

132. The court eventually learned that Jessica Howard takes medications for depression

and anxiety that make her confused sometimes about facts and make it hard for her to clearly

remember events. See HT, pp.1167-69. The court also learned that on January 19, 2015, law

enforcement was called to her home for a mental health complaint because Howard was having

suicidal thoughts. She was taken to a mental health facility for nine days for 11max depression and

anxiety, homicidal and suicidal tendencies.11 See HT, pp.1169-70. She then acknowledged that her

medications were impacting her ability to remember what was said years ago and that she wasn't

I 00% sure about everything. See HT, p.1171, lines 2-11.

133. Ms. Howard also testified that within two weeks of her testimony, she went out to a

sawmill on Old County Route 1, while this hearing was going on. She testified that she saw a tall,

skinny guy there, who she believed was removing Heidi Allen's body. See HT, p.1173. The People

respectfully submit that her testimony on this issue calls in to question her mental faculties. As the

court is aware, Ms. Howard was later recalled as a witness, at which time she mistakenly identified

Heidi Allen as being in a photograph that contained persons she believed to be Roger Breckenridge

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and James Steen.

134. The statements that Jessica Howard attributed to Roger Breckenridge are not

admissions of personal wrongdoing; they're not declarations against penal interest. Also, there is no

indication of whether Breckenridge had competent personal knowledge to make the statements.

Moreover, there is no corroborating evidence to support the idea that his alleged statements may be

true. Finally, given the expressed mental health issues surrounding Jessica Howard, and given her

admitted difficulty in recalling events due to the effects of her medication, the court should deem

her testimony as unreliable for the purpose of this hearing.

C. Evidence Regarding Michael Bohrer

Danielle Babcock

135. Danielle Babcock testified that Michael Bohrer made the comment, "I'll do you as I

did Heidi" on multiple occasions during the period of time that she worked for him, in 2001 12002.

See HT, pp.632-33. Although Babcock testified that her sister, Tanya Babcock, and Alex McNab

were present to hear those comments, Defendant did not call either of them as witnesses. See HT,

p.634. The statement that Babcock attributes to Bohrer is vague. The meaning of the phrase is not

exactly clear, and the court would be speculating if it imputed a particular meaning to the words.

Babcock's testimony is not competent evidence of a declaration against penal interest, and this court

should not consider it for that purpose.

Tyler Hayes

136. Tyler Hayes testified to several statements that he claims Michael Bohrer made to

him while at the Liberty Bell Tavern in 2000. Hayes testified that Bohrer brought up the Heidi

Allen case and said, "I know who did it" and "I know the whereabouts of Heidi Allen's body."

Hayes testified that after the initial conversation, he spoke with Bohrer in the men's room. Hayes

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claims Bohrer was sobbing and said that he had been dealing with this too long and that he didn't

want to deal with it anymore. See HT, p.201. As Hayes acknowledged, Bohrer never said who

killed Heidi Allen. Bohrer didn't say that he killed her or that he personally participated in the act.

Bohrer did not tell Hayes where Heidi was buried. Nor did he say who put her there. Further,

Bohrer did not describe his basis of knowledge. See HT, p.209-10.

137. Even if Bohrer made all of the statements that Hayes has attributed to him, none of

those remarks are an admission of wrongdoing. Given the demonstrated obsession that Bohrer has

with this case and the compulsive investigation that he conducted, it's fair for this court to conclude

that his comments to Hayes reflected Bohrer's person opinion rather than a declaration of fact.

Thus, these remarks are not a declaration against penal interest, and they should not be considered

as "new evidence" for the purpose of this hearing.

Conclusion on Issue of Admissiblity

138. For the reasons set forth above, the court should conclude that the various statements

that have been attributed to James Steen, Roger Breckenridge, and Michael Bohrer are not

declarations against penal interest. For that reason, the court should find that such statements are

not admissible and therefore do not constitute "new evidence." Consequently, the court should deny

that Defendant's motion in its entirety.

III. The Court Should Deny the "Newly Discovered Evidence" Portion of Defendant's Motion Since the Alleged Evidence Does Not Create a Probability of a More Favorable Verdict.

139. In short, the new evidence is wholly unreliable and its admission would not created

the probability of a jury acquitting defendant of these charges. For the sake of brevity, the People

hereby incorporate by reference and reassert the argument that appears in the People's Affirmation.

See Affirmations, pp.51-56.

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f:i f- I f ""'!"

CONCLUSION

For all of the foregoing reasons, this Court should DENY Defendant's CPL § 440.10 motion

to vacate his judgment in its entirety oased upon the evidence presented to the court throughout the

hearing and upon the applicable law.

Dated: November 16, 2015 Oswego, New York

Sworn to before me this 16th day of November, 2015

~ .Cat\"Jt Notary Public "~ ll,.

CHARITY CONZONE Notary Public, Slate of New York

No. 01C06089706 Qualified in Oswego County, Al~

Commission Expires March 31, ..ldL ~

G~£CA District Attorney

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