People v. Thibodeau

• Decision Date: 09 June 2017
• Citation: 56 N.Y.S.3d 669,151 A.D.3d 1548
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary THIBODEAU, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1548

56 N.Y.S.3d 669

The PEOPLE of the State of New York, Respondent,

v.Gary THIBODEAU, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 9, 2017.

Lisa A. Peebles, Federal Public Defender, Syracuse, for Defendant–Appellant.

Gregory S. Oakes, District Attorney, Oswego, for Respondent.

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

MEMORANDUM:

Defendant appeals from an order denying, after a hearing, his CPL 440.10 motion seeking to vacate a judgment convicting him upon a jury verdict of kidnapping in the first degree ( Penal Law § 135.25[3] ). Defendant's conviction arises from the April 3, 1994 abduction of the victim from the convenience store where she worked in the Town of New Haven. The victim has not been heard from since then, nor has her body been found. Defendant and his brother were jointly indicted for the kidnapping but were tried separately, and the People's theory of the case was that they had abducted the victim using a van owned by defendant's brother. Defendant was tried first, beginning in May 1995, and convicted. His brother was subsequently acquitted. We affirmed the judgment of conviction on defendant's direct appeal ( People v. Thibodeau, 267 A.D.2d 952, 700 N.Y.S.2d 621, lv. denied 95 N.Y.2d 805, 711 N.Y.S.2d 173, 733 N.E.2d 245 ).

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

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

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

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

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

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

Steen, who was sentenced to life in prison without parole in 2011 for killing his wife and his cousin in September 2010 ( People v. Steen, 107 A.D.3d 1608, 967 N.Y.S.2d 572, lv. denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 ), testified at the hearing, as did Breckenridge and Bohrer. They each denied abducting the victim or making the admissions attributed to them, and Steen and Breckenridge further testified that they did not know Bohrer in 1994. Wescott testified that she did not know anything about the crime, and that she was 17 years old in April 1994 and did not meet Breckenridge until later that year. There was testimony at the hearing that Priest "always wanted to be the center of attention," and that the police did not think she was credible in light of "discrepancies in her story" and attempts on her part to link the death of her second husband in 2010 to the abduction of the victim; that Breckenridge was likewise known as "a talker" and "an attention getter" who was not to be taken seriously; that Bohrer was mentally unstable and obsessed with the case; and that the motorcycle club referenced in Shaw's testimony did not exist until 2000.

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

We reject defendant's contention that the court erred in denying that part of his motion alleging a Brady violation. The record supports the court's determination that defendant failed to establish that the CI information was suppressed by the People (see People v. Carrasquillo–Fuentes, 142 A.D.3d 1335, 1339, 37 N.Y.S.3d 800, lv. denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 ; People v. Ulrich, 265 A.D.2d 884, 884–885, 697 N.Y.S.2d 410, lv. denied 94 N.Y.2d 799, 700 N.Y.S.2d 433, 722 N.E.2d 513 ; see generally CPL 440.30[6] ; People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286, rearg. denied 13 N.Y.3d 766, 886 N.Y.S.2d 866, 915 N.E.2d 1163 ). The conflicting testimony of defendant's trial counsel and the trial prosecutor with respect to whether the CI information was disclosed, as well as the competing inferences to be drawn from documentary and other evidence bearing on the issue, presented an issue of credibility that the court was entitled to resolve in favor of the People (see People v. Cox, 297 A.D.2d 589, 589, 747 N.Y.S.2d 178, lv. denied 99 N.Y.2d 557, 754 N.Y.S.2d 209, 784 N.E.2d 82 ; see generally People v. Campbell, 106 A.D.3d 1507, 1508, 966 N.Y.S.2d 313, lv. denied 21 N.Y.3d 1002, 971 N.Y.S.2d 254, 993 N.E.2d 1276 ). In view of our determination, we do not address the court's alternative grounds for rejecting defendant's Brady claim.

We also reject defendant's contention that the court erred in denying that part of his motion alleging newly discovered evidence. The decision whether to vacate a judgment of conviction based on newly discovered evidence is addressed to the sound discretion of the motion court (see People v. Backus, 129 A.D.3d 1621, 1623–1624, 14 N.Y.S.3d 241, lv. denied 27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 ; People v. Deacon, 96 A.D.3d 965, 967, 946 N.Y.S.2d 613, appeal dismissed 20 N.Y.3d 1046, 961 N.Y.S.2d 374, 985 N.E.2d 139 ), and "[i]mplicit in [this] ground for [vacatur] is that the newly discovered evidence be admissible" ( People v. Tankleff, 49 A.D.3d 160, 182, 848 N.Y.S.2d 286 [internal quotation marks omitted]; see Backus, 129 A.D.3d at 1624, 14 N.Y.S.3d 241 ).

First, we conclude that the court was entitled to determine, in view of the circumstances of Pierce's identification of Steen, that his...