People v Sinha

[*1] People v Sinha 2009 NY Slip Op 51988(U) [25 Misc 3d 1206(A)] Decided on September 8, 2009 Supreme Court, New York County Berkman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 8, 2009
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Lina Sinha, Defendant.



2466/06



Appearances of Counsel: Hon. Robert Morgenthau, Esq., District Attorney, New York County, 1 Hogan Place, New York, New York 10013 (Steven Nuzzi, Esq., of counsel), for the People of the State of New York; Gerald L. Shargel, Esq., 570 Lexington Avenue, New York, New York 10022, and Joel B. Rudin, Esq., 200 West 57th Street, New York, New York 10019, for defendant, Lina Sinha.

Carol Berkman, J.

Defendant has moved for relief pursuant to C.P.L. §440.10(1)(b),(c),(f),(g) and (h). She was convicted after a jury trial of one count of sodomy in the second degree, one count of sodomy in the third degree (both as to complainant Christopher Brook), bribing a witness (Paul DeMoya), and four counts each of criminal impersonation and falsely reporting an incident. The jury acquitted with respect to a second bribery charge and a charge of tampering with a witness, both relating to DeMoya, and was unable to reach a unanimous verdict as to alleged sexual offenses against DeMoya. An appeal is pending.

The hearing held to resolve the factual issues raised by the 440 motion has revealed that the People failed to inform the defense before trial that Paul DeMoya told them he once acted as a courier of either a gun or drugs (in a paper bag), and also told a prosecutor, after the grand jury presentation in this case, that he suspected defendant intentionally alerted the Connecticut probation department about his drug activity, causing him to be charged with violating probation. In addition, further impeachment material previously unknown to the parties came to light: i.e., DeMoya was a more active participant in beating the victim of a robbery than he had admitted at trial; he had "ripped off" other drug dealers, sold and used heroin and marijuana (as well as the drugs to which he had admitted at trial), and used money supplied by the prosecution for meals to buy and use drugs.

This information is cumulative to evidence already before the jury, and in any event relates primarily to impeachment. The information does not merit a new trial on the basis of newly discovered evidence. People v. Salemi, 309 NY 208, 216 (1955). Nor is there a reasonable possibility that the Brady violations [FN1] contributed to the verdict. The other claims [*2]raised by defendant in this proceeding are either conclusively refuted by the trial record and/or not supported or disproved by the evidence at the hearing, and many claims relate to matters which appear in the trial record or which could have been made to appear, or to evidence available to the defense at or before trial with due diligence. The interests of justice do not require consideration of issues which could have been, but were not, properly raised at trial. C.P.L.§440.10(2)(b),(c) and (3)(a). Some of the arguments raised in the post-hearing memorandum are not made on adequate notice to the prosecution, and are rejected on that basis as well. C.P.L.§440.30(1). Finally, defendant has failed to establish that the trial was tainted by a pattern of prosecutorial misconduct or due process violations.

In accordance with the following findings of fact and conclusions of law, the motion to vacate judgment is denied.

Chronology

The evidence is described at length in the competing briefs before the Appellate Division. An abbreviated chronology will provide context for the issues raised in this motion.

Christopher Brook was born in November 1982. According to his testimony, defendant's sexual relationship with him began when he was thirteen, as he was graduating from the Montessori school owned by defendant's family. Defendant, on the other hand, argued that her sexual relationship with Brook began only after he reached the age of consent. According to DeMoya, defendant's sexual relationship with him began in 2001, when he was twelve, shortly after he arrived at the school. DeMoya left the school in March 2002.

The relationship between Brook and defendant ended in December 2004 or January 2005. From that time through March 2005, defendant, using the name Sandra LaVista, made a series of false complaints against Brook, who had become a police officer, to the Civilian Complaint Review Board and police officials. DeMoya was present for one of the calls, at the end of January 2005, and, as the recording shows, defendant tried to get him to participate. Defendant also made false 911 calls, which twice brought the police to the apartment where Brook was living with family. Brook heard a recording of one of the calls and recognized defendant's voice. Several weeks later, at the end of April 2005, Brook disclosed the underage sexual relationship to a superior.

In October 2005, defendant was arrested. The New York County District Attorney received information that there might be another victim named "Paul," and issued grand jury subpoenas to the school to get student files. In December 2005, before the prosecution received Paul DeMoya's file, defendant's mother reached out to DeMoya's mother, Carmen Paulino, and Paulino provided current contact information for her son. In January, defendant took DeMoya to her lawyer's office, and DeMoya denied any sexual relationship. Defendant wanted this denial repeated to the District Attorney. DeMoya wanted a lawyer for this purpose. In early January 2006 defendant's lawyer asked Eric Franz to represent DeMoya.

Franz spoke with DeMoya a number of times, but only by telephone. They never met. During the first of their "substantive conversations," Franz asked DeMoya if he wanted to waive the attorney-client privilege so Franz could report their conversations not only to DeMoya's mother but also to defendant's lawyer (Tr. 1990, 1996, 2026). DeMoya agreed. On February 27, 2006, several days after DeMoya was arrested for violating probation, he told Franz that there [*3]had been an unlawful sexual relationship between him and defendant.[FN2] They discussed his options, including cooperation, but DeMoya said he did not want to speak with anyone about the relationship until he was out of jail. Franz quickly informed the New York prosecutors in this case of DeMoya's desire to have his Connecticut matter resolved with their help (Tr. 2023-2024).

In March 2006, Paulino terminated Franz' representation and hired a lawyer to look into a civil suit against defendant. From the beginning it was clear, even without regard to the emails inexcusably not disclosed until later in the trial, that Paulino was anxious to get the New York prosecutors' help for DeMoya's Connecticut case. The prosecutors agreed to inform the Connecticut prosecutors about DeMoya's victim-status and cooperation in New York. The late-disclosed emails revealed that in early March, before DeMoya had been interviewed by New York prosecutors, New York County District Attorney's Office Sex Crimes Bureau Chief Lisa Friel promised Paulino she would to do everything "in her power" to persuade the Connecticut authorities to extend leniency and New York prosecutors helped Paulino arrange a telephone call to her son in jail and also helped delay DeMoya's transfer to an adult facility so that Paulino could first post bond.

Paulino, and in turn DeMoya, were soon told that the Connecticut prosecutors did not agree with New York's view that DeMoya deserved leniency in connection with his probation violation. DeMoya testified before the grand jury and the indictment was handed down in May 2006. In August 2006, DeMoya was sentenced to eight months in jail for violating probation after the Connecticut prosecutor recommended the maximum of five years (having offered a two-and-one-half year cap in exchange for a plea to the violation). The Connecticut judge's sentencing statement did not refer to DeMoya's cooperation in New York or to his status as a sex-abuse victim, both of which DeMoya's lawyer had raised in the course of the sentencing proceeding.

Defendant's trial commenced on March 1, 2007.

DeMoya's post-trial deposition for the civil suit seeking damages for defendant's alleged rape of DeMoya raised certain factual issues, discussed below, which required a hearing pursuant to C.P.L.§440.30(5). The hearing was held before this court on July 9 and 10, 2009. There were two witnesses: Paul DeMoya, called by defendant, and former Assistant District Attorney Florence Chapin, called by the People. Carmen Paulino, DeMoya's mother, was available to testify, but defendant chose not to call her.

DEFENDANT'S CLAIMS, FINDINGS OF FACT AND CONCLUSIONS OF LAW

The headings below correspond to defendant's 440 motion. Related and/or additional arguments made in the defendant's reply and post-hearing memorandum are discussed under the most appropriate heading.

"I. DeMoya's False Denials of Promise of Immunity" [*4]

Findings of fact. Although DeMoya testified at his deposition that the prosecutors promised him immunity for the criminal activities he admitted, at the hearing he testified as he had at trial that there was no promise of immunity. He had come on his own to assume well before trial that he would not be prosecuted. This testimony was credible and consistent with Chapin's credible testimony that there was no promise of immunity. Based on the credible evidence at the hearing, the court finds that there was no promise of immunity, implicit or explicit.[FN3]

The court also rejects the defendant's assertion that the prosecutor who interviewed DeMoya before the hearing engaged in "deplorable witness manipulation" (defendant's post-hearing memorandum at page 53). DeMoya is young and not well educated. In this court's observation, he was particularly changeable in reporting past conversations, possibly conflating his assumptions and inferences from whatever source with what was actually said, unless asked questions which made him distinguish carefully. From the credible evidence, encouraging DeMoya to distinguish carefully between promises, predictions and assumptions is what the prosecutor did during the pre-hearing interview. There was no misconduct.

Due process claim. Defendant argues (post-hearing memorandum at pp. 7-8) that the prosecutor misled the jury in closing argument because, as Chapin testified at the hearing, DeMoya was not immediately and totally forthcoming with the prosecutors before trial about his prior misdeeds. Defendant asserts, inaccurately, that the prosecutor argued to the contrary in summation. In the introduction to her post-hearing memorandum defendant additionally asserts (without page references to the trial transcript and again inaccurately) that the prosecutor in summation also argued that DeMoya had no assurance he would not be prosecuted for the crimes he admitted (post-hearing memorandum at page 2, paragraph 2; see also page 6). These assertions are conclusively refuted by the trial record. The prosecutor in summation did not refer to DeMoya's risking arrest or prosecution for his admissions. Nor did she argue that DeMoya had been immediately and quickly forthright about his criminal behavior to the prosecutors before trial. Indeed, had she done so, the defense could and should have objected. Defense counsel knew (from the late notice) that DeMoya had belatedly admitted his past involvement in a robbery only immediately before his testimony. What the prosecutor actually argued in summation was that DeMoya had been forthright to the jury in admitting past misconduct which, but for his admissions, would not have been known. [*5]

An examination of the record proves this point. Defense counsel argued in summation that DeMoya was a thief, violent by his own admission, and a drug dealer (Tr. 2941-2942), lied to his probation officer, his mother, his grandparents, was kicked out of the house [FN4] (Tr. 3001), stole his mother's fiancée's credit card and sold it for five-thousand dollars (Tr. 3043), demonstrated "again and again that he is a liar. . . . sells drugs while he is on probation. . . . Doing drugs" (3072). In response, the prosecutor acknowledged DeMoya's bad character, but urged that he should nonetheless be believed:

"You have to get past the lying, thieving, violent thug. You got to get past that. That's - I'm not saying that you shouldn't consider his criminal background. . . . You should consider whether the fact that somebody dealt drugs mean that they lie about being sexually abused. I submit to you that if . . . you consider all the circumstances of Paul DeMoya's life and whether or not he was honest with you about his crimes, you find that they don't tell you anything about whether he is telling the truth about the defendant. . . . [Comparison with defense witness Rios who, the People argued, minimized his prior conviction during his testimony]. . . . Now, Paul DeMoya neither hid from his crimes, nor minimized them. . . . he sat up there and acknowledged over and over committing crimes. . . . But how would you have known about most of it if he hadn't told you? He was never charged with anything . . . except for the one time . . . the one possession of narcotics case that he has a conviction for. . . . So why on Earth does he tell you except that he is told to be truthful and he is. Does he [as compared to defense witness Rios] try to explain it away? . . . . He admits what it was he does"(3125-3131)(irrelevant argument omitted; italics indicate portions not included in the quotation complained of in defendant's post-hearing memorandum).

Trial error claim. Defendant argues in this proceeding that the court erred at trial by sustaining objections to cross-examination questions about whether the prosecutors had asked for details of DeMoya's prior crimes. This argument is not properly raised on this motion. Indeed, even as an appellate issue, the argument has its defects: the record reflects that when the court suggested at trial that DeMoya's state of mind about whether he might be prosecuted could possibly be relevant to credibility, if connected, defense counsel neither responded nor asked for clarification nor asked to make an offer of proof; he simply moved on (Tr. 1268-1269). Why DeMoya would have been induced to testify by a promise of immunity (or his belief that he would not be prosecuted) is in any event not clear: had DeMoya not decided to testify against defendant, the crimes which he admitted on the stand (and which bore on his credibility as evidence that he was willing to put his own interest ahead of society's) were unlikely to have been discovered at all. Yet defendant did not at trial and does not now explain how DeMoya's optimism that he would not be prosecuted was relevant to his credibility. In any event, the complained of rulings on this are matters of record, and are not properly before this court. People v. Degondea, 3 AD3d 148, 161 (1st Dep't 2003).

[*6]"II. DeMoya's False Denials of Manhattan D.A.'s Efforts to Obtain Favorable Treatment for Him in Connecticut by Obtaining Dismissal of Certain Charges He Believed Had Been Caused by Ms. Sinha" and "III. The People's Failure to Disclose DeMoya's Bias Against the Defendant And Potential Motive to Falsely Accuse Her of Criminal Activity"

Findings of fact. Defendant contends in her motion that contrary to DeMoya's testimony at trial, one of the prosecutors actually tried to get one of the charges against him in Connecticut dismissed. The argument at page 18 of defendant's post-hearing memorandum asserts that DeMoya's suspicion - that defendant deliberately set him up for the probation violation charges by sending anonymous letters and photographs to his probation officer - "predated his [DeMoya's] decision to accuse [defendant] and to cooperate with the D.A.'s office" (emphasis in the original), and accordingly was highly probative of a motive to falsify. The court agrees that there should have been disclosure, but there was no evidence at the hearing that DeMoya harbored this suspicion on February 27, 2006, when he first accused defendant, and even no clear evidence that he harbored this suspicion when he testified in the grand jury.

DeMoya's testified at the hearing that he told Chapin he was angry at defendant because he believed defendant had instigated the violation of probation proceedings and that he asked Chapin to investigate and report to him because he thought the information that defendant set him up could help him get some of the more serious specifications dismissed (H. 69, 75). Demoya also said he told Chapin he was angry at defendant for "[m]any reasons, that I had people following me, that I was violated on probation because of people following me and taking pictures, and whatever" (H.70). but at the end DeMoya said he did not "remember the specific conversation" or when it occurred (H. 96). DeMoya was not asked and did not say on direct examination at the hearing when he formed his suspicions. On cross-examination, he implicitly agreed with the suggestion in the prosecutor's questions that the conversation occurred early on in his contacts with the New York prosecutors, in March or April 2006 (H.87-88). He added that he first became aware of the anonymous letters and photographs when he was shown them by his friends' parents, on dates unspecified, and DeMoya discovered that the probation officer had also received them because, while he was in jail (he did not say whether in February or early March 2006 or after August 2006), the probation officer sent him the full specifications (H.89-90). These few facts make it possible but highly unlikely that this suspicion could have developed in the very short time period between the violation of probation arrest and DeMoya's accusation of defendant on February 27.

Chapin testified that, as best she recalled, it was after the grand jury presentation (that is after late May 2006), that DeMoya told her by telephone that he suspected defendant was at the root of his probation violation and referred to certain letters that had been sent to friends and their family members. He asked her to look into it (H.152-153). Chapin did not recall whether she actually followed up or reported anything to DeMoya, but recalled that she never learned anything (H. 154). DeMoya did not tell her he was angry, but she perceived from his tone that he was frustrated. He did not tell her what he planned to do with the information if she obtained it (H. 155). There is no evidence at all that DeMoya asked Chapin to use this information' to get any specification dismissed, or that she tried to do so, and no credible evidence that DeMoya actually told her what he had in mind to do with any results of the requested inquiry. In short, so far as the credible evidence at the hearing is concerned, DeMoya asked Chapin to see if she could [*7]get some information for him, for reasons he did not specify to her, and whether she tried to do so or not, she got no such information.

There is additional confusion here because of another surmise about defendant's role in causing DeMoya to be violated on probation. According to an affidavit which is part of the People's response to the 440 motion, DeMoya told prosecutor Hochhauser that Eric Franz had suggested to DeMoya that defendant's strenuous efforts to locate him might have incidentally made the Connecticut probation authorities aware of various violations. The defense did not call Franz at the hearing, although by way of affirmation submitted after the hearing, denied that Franz had informed the defense of this suggestion (Rudin Affirmation dated August 3, 2009, p. 1, fn.1); if this is so, then it would seem likely that Franz imparted the suggestion to DeMoya after the waiver of confidentiality as to defendant's lawyers was withdrawn, i.e., after the accusation. It is unclear whether DeMoya agreed with Franz' suggestion and there is no evidence that Franz' suggestion was based on actual evidence rather than a lawyer's analysis. As to timing, at least here there is a reasonable window supported by actual evidence - some time after the violation of probation arrest and before Franz' representation was terminated in March 2006. That window does not prove by a preponderance of the evidence that Franz communicated his suggestion to DeMoya before February 27. Franz' surmise is perhaps beside the point, because the suspicion DeMoya spoke of when he telephoned Chapin after the grand jury presentation was different: i.e., that defendant, intending to get DeMoya into trouble for selling drugs, anonymously sent letters and pictures to the probation department (DeMoya deposition at pages 254-255; see also H.88-89). The timing-ambiguity cannot be resolved on this sparse record. Suffice it to say, however, that there is no convincing evidence that either suspicion "predated" DeMoya's accusation of defendant.

Materiality. For this and any other established Brady violation in this matter the court assumes that the most stringent standard in People v. Vilardi, 76 NY2d 67, 77 (1990), that is the "reasonable possibility" standard, applies. The People do not argue otherwise.

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

At trial, the major argument in the defense summation about DeMoya's (and Brook's) motive began with the proposition that "[o]nce they made up the story there was no taking it back" (Tr. 2914). . . . "but then on February 27th, 2006, he completely abruptly changes his story. . . . I said abruptly because there were two calls to Eric Franz on the 27th . . . and then he calls back in the afternoon and said, remember what I told you, according to Eric Franz, what I told you I didn't do, I did do it. . . . He was calling from a jail cell. . . . He wanted out of jail. . . . What better option than to help the District Attorney's office in Manhattan and get help in return. . . ." (2940-2942). Counsel returned to this point with emphasis: "the issue is, . . . when he was calling Eric Franz . . . from that jail cell, did he want something? . . . Did he want something in return for his testimony?" (Tr. 2956). The real motive at issue at trial, from the defense point of [*8]view, was the one at the time DeMoya first made his accusation.[FN5]Subsequent motivations were of course relevant, but diluted by the prior consistent accusation, made on February 27.

Unquestionably, the timely disclosure of DeMoya's suspicions of defendant's role in his probation violation would have given the defense additional fodder for cross-examination. In the end, however, these suspicions, whenever it arose, are only cumulative to the other demonstrated motives. DeMoya testified at trial that even before he was arrested for violating probation, and before he accused defendant of sexual misconduct, he started ignoring her calls - and telephone-record evidence showed there were hundreds of them - because "I'm getting tired of her calling me and bugging me to come down to the city" ( Tr. 1194). As the People argue in their post-hearing memorandum, defendant chose at trial not to pursue further DeMoya's obvious annoyance at defendant. The information that DeMoya developed suspicions about defendant's deliberately causing his violation of probation, when DeMoya was fully aware of the many other reasons for his probation violation, adds little, if anything, to his already-established motives to testify against her.

Due process claims. Defendant's post-hearing memorandum refers to the May 31, 2006, email from DeMoya to a New York prosecutor which included the phrase, "Vicky said it all up to you guys." Defendant again argues (as she does on appeal) that the prosecutor violated due process by not correcting DeMoya's denial that his email referred to the New York prosecutors' helping him get leniency in Connecticut. Indeed that is the natural reading of the email and Chapin therefore telephoned DeMoya to emphasize that she could not help him in Connecticut. DeMoya explained otherwise at trial (as described in the defense summation) - that by this phrase he meant it was up to him, if he did his community service and drug treatment and so on, he would get a better sentence (Tr.2960). There is no due process violation: the prosecutors could not have actually known this testimony was a lie, if it was one; the prosecutors were not bound to be mind readers. The argument that the prosecutors had a due process duty to correct' DeMoya's testimony is without merit, and because it is based on the trial record, it is not properly before this court in this post-judgment proceeding.

Defendant further argues in her post-hearing memorandum that the prosecutor [*9]deliberately misled the jury in her summation on the issue of DeMoya's motive to lie, by arguing that he had none. Again, the record conclusively demonstrates that the prosecutor did not so argue. First of all, the prosecutor's arguments on the motive issue were a fair response to defense counsel's extensive arguments that DeMoya testified falsely due to his motivations. Layton v. Phillips, 2008 WL 413785, aff'd 2009 WL 2043640. Moreover, the specifically complained of prosecutorial argument - focusing on the use of the phrase, "axe to grind" - viewed in context, was a catalog of the usual credibility tests: "But in analyzing his testimony you are going to apply the same tests of logic and reason and credibility that we have been talking about, and look at his demeanor. Again, does what he said make sense? Did he seem to have an ax[e] to grind? Did a motive, if you find he had one, appear to [a]ffect his testimony? Is what he [said] supported by other evidence?" (Tr. 3111). The further prosecutorial "axe to grind" reference, at Tr. 3168, directed the jurors to DeMoya's demeanor, which, the prosecutor argued, was "sad and almost resigned." Notably, there were no objections to these "axe to grind" arguments at trial.

Contrary to the defense contention, a full review of the summation demonstrates that the prosecutor's argued that DeMoya was testifying truthfully notwithstanding his conceded motives.[FN6] Aside from being without merit, this defense argument depends almost entirely on matters of record, and is accordingly not properly before this court in this proceeding.

"IV. False Account of DeMoya's Involvement in a Drug Robbery/Beating" and "V. False Testimony Minimizing DeMoya's Additional Criminal Activities"

Findings of fact. At trial, DeMoya testified about his Connecticut drug conviction (Tr. 1068-1069), stealing and using his mother's fiancée's credit card, selling drugs in North Carolina and Queens, having a fight in school in Connecticut, using drugs, selling drugs in Connecticut, violating probation in various ways in Connecticut and going to rehab in California (Tr. 1147-1154, 1163, 1165-1166, 1226-1227, 1236-1238). As to the drug-related robbery, he admitted that he bound the victim to a chair and "had somebody beat him up" (Tr. 1164). He [*10]was also cross-examined about these matters (Tr. 1247, 1251, 1258-1260, 1262-1268, 1272-1277, 1302-1304, 1338).

DeMoya's descriptions of the robbery at the deposition and the hearing contained more admissions of personal involvement in the physical violence than the account at trial. In all instances he admitted he was an active participant in a drug-trade-related robbery involving serious violence against the person of another, a crime the prosecutor called "appalling" (Tr. 3130). According to Chapin's testimony at the hearing, when DeMoya first told her about the robbery, he said he had pistol-whipped someone (H. 160), but it appears from the credible evidence at the hearing that she conflated an anecdote she told DeMoya with DeMoya's actual admission. DeMoya testified at the hearing that he knew his accomplice owned a gun but could not recall whether he saw it at the robbery (H. 29). This is consistent with his testimony at trial, which made no reference to pistol-whipping. At the hearing, DeMoya could not recall a number of details about his pretrial disclosures: whether he had told the prosecutors that at one point during the robbery he had a baseball bat in his hand; whether he told them the name of the victim (H.34); whether he told the prosecutors that he personally punched the victim, which he did (H. 61, 104). There is no credible evidence that the trial prosecutors were aware of any further details of this robbery than those they disclosed at trial.

With respect to other criminal activity, DeMoya could not recall at the hearing his first conversation with Chapin about his crimes and remembered few details of what he told her (H.19-23). He was selling heroin and using it occasionally, but did not tell Chapin (H.80-81). Nor did he think he told her about using and selling marijuana (H.80). DeMoya testified at the hearing that before the trial he told Chapin about another robbery or larceny and admitted to defense counsel that he had "ripped off drug dealers before, correct?" (H.78), but DeMoya's testimony in this regard is not credible. Chapin was not specifically asked whether DeMoya told her about additional robberies at the hearing, but from Chapin's credible testimony detailing what DeMoya did tell her, the court finds that DeMoya did not reveal to the prosecutors any other robberies or larcenies other than the one he testified about at trial.

Chapin testified at the hearing that DeMoya told her before trial about a crime which was not previously disclosed to the defense, that is "he had been a courier for someone, he wasn't specific as to, he told me he didn't know what he was transporting, whether it was guns or drugs, but that he would carry something in a brown paper bag" (H. 157, 173). The credible evidence at the hearing does not establish by a preponderance of the evidence that the prosecutors failed to disclose any criminal act they knew about, other than the courier incident. To the extent that the prosecutors were unaware of the additional misdeeds or additional details of known misdeeds, "no unfairness is established." People v. Fein, 24 AD2d 32, 42 (1st Dep't 1965).

Due process claims. Defendant argues that the prosecutors intentionally misled the jury about DeMoya's criminal activities and his willingness to admit them, and here again the trial record conclusively refutes her contentions.

In Paragraph 69 of the motion, defendant alleges that DeMoya testified at trial that he was asked to reveal "[a]ny bad acts" he had ever committed and said, untruthfully, that he had told the prosecutors "all about" his drug activity. An examination of the record shows instead that DeMoya first agreed with defense counsel at trial that the prosecutors had asked him "more than once to tell everything that you did in your life, right?" Then he was asked, "They wanted to [*11]know all about this drug activity, correct?" and he responded "I told them about it" (Tr.1267). Contrary to the defense claim, this is not a clear statement by DeMoya that he had been completely candid about his drug history, and even if it were, the prosecutors had no information that his testimony was false. Similarly, DeMoya said at trial he started selling drugs in North Carolina and continued until he went to jail on the violation of probation (Tr.1236-1237). The defendant argues that this amounts to a false claim that DeMoya reformed once he began cooperating with the New York authorities. But the evidence at trial showed that DeMoya went to jail twice on the violation of probation, first when he was arrested in February 2006 until he was bailed out in March, and then again in August when he was sentenced.He was released just before his trial testimony after serving that sentence. Thus, contrary to defendant's argument, DeMoya did not testify that he stopped selling drugs when he started cooperating with the prosecution here. Moreover, the prosecutor never argued that DeMoya had reformed.

There is no way of telling whether DeMoya was entirely candid with the prosecutors or the jury about his criminal activities. Nonetheless, despite defendant's argument, she was not entitled to rely on the completeness and accuracy of the prosecutors' investigation of DeMoya's prior bad acts. The law is that "evidence of prior inconsistent statements, bad acts, criminal convictions and other general impeachment material . . . need only be disclosed to the extent required by the provisions of C.P.L.§§240.44 and 240.45." People v. Arthur, 175 Misc 2d 742, 760 (Sup.Ct. N.Y.1997). The defense at trial knew that DeMoya had only one actual arrest and conviction or adjudication and that the pertinent statutes only require disclosure of what the prosecutors actually know. The list of prior bad acts which was served on the defense before testimony began made no representation that it was a complete statement of all of DeMoya's misdeeds (Defense Exhibit G at the hearing), and indeed the prosecution orally amended that list to include the robbery as DeMoya began his testimony. Yet the defense at trial made little effort to explore DeMoya's prior bad acts further and the reason for that is apparent: there was already more than enough prior bad act evidence, particularly given the wealth of other impeachment material.[FN7] [*12]

The cases on which defendant relies for a duty of "full" investigation do not apply here, as they concern prior bad acts which were matters of record accessible to the prosecutors. In Carriger v. Stewart, 132 F.3d 463 (9th Cir.1997)(en banc), a death penalty case, the witness was testifying with a promise of immunity for the very crime charged at the trial, and the defense at trial was that this witness, not the defendant, had committed the murder.The witness' Department of Corrections file "would have revealed [his] long history of lying to police and blaming his crimes on others," 132 F.3d at 479. Additionally, the witness testified at the trial that he was not capable of murder, not a robber, and had never used force. The prosecutor argued the witness was "not a liar." These claims were flatly disproved by the Corrections file. Id. at 480-481.Similarly, United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991), concernedcriminal background information of a government informant contained in local Virgin Island records to which the prosecutors had access and United States v. Price, 566 F.3d 900 (9th Cir.2009) involved the failure to turn over a witness' actual criminal record which included multiple acts of fraud or dishonesty.These casesdo not establish the impossible rule that in order to comply with Brady all prior bad acts must be discovered by a prosecutor, notwithstanding the lack of official records.

Given the nature of the Brady violation with respect to the known but undisclosed prior bad act, i.e., the courier information, in the context of this trial the undisclosed information is not material, not only because the information was vague, but also because it is so similar to the disclosures already provided: "the information withheld is merely cumulative of equally impeaching evidence introduced at trial." United States v. Spinelli, 551 F.3d 159, 165 (2d Cir. 2008). While Spinelli may have been decided under a less stringent standard, its reasoning is compelling here. The prosecution in this case disclosed many prior bad acts, as well as DeMoya's desire to get out of jail and minimize his jail exposure and his intention to sue defendant and the school. The additional bad act of acting as a courier, and the additional reason for being angry with defendant, "would have made little or no difference." Id.

"VI. Demoya's Drug Use with Money Provided by the D.A.'s Office"

The 440 motion asserted a Brady violation because the prosecutors failed to disclose that DeMoya used money provided by them for meals to buy and use drugs and alcohol with his friends. According to DeMoya's testimony at the hearing, however, he did not disclose this misconduct to the prosecutors (H. 79). As DeMoya never disclosed this information to prosecutors, they could not disclose it to the defense.

Custody issue. In her post-hearing memorandum (at pages 33-35), defendant argues instead that the People unjustifiably failed to disclose at trial that during the course of his [*13]testimony DeMoya was a prisoner, in custody. She contends that this status gave DeMoya a motive to falsify, using the doubtful analogy to a probationer who would have a potential motive to curry favor with the authorities supervising him or to a person being prosecuted by the same prosecutors who would have a motive to curry favor with them. In further support of her assertion that a Brady violation occurred in this respect, defendant also argues that the decision to keep DeMoya in "police custody" shows that the prosecution did not trust him to act responsibly or refrain from committing further crimes. These arguments are legally unpersuasive, without evidentiary basis, and also based on matters in the trial record, or which could have been placed in the trial record, and so not properly before the court on a 440 motion. Moreover, the prosecutor was not put on reasonable notice that he should litigate the issue of whether DeMoya was in fact in custody, and this argument must also be rejected pursuant to C.P.L.§440.30(1).

DeMoya testified at trial (Tr. 1232-1233) that during his trial testimony he stayed in a hotel with detectives who took charge of the money provided for meals. The defense did not further explore this issue at trial. At the hearing DeMoya testified that the detectives did not let him go out on his own; he thought of himself as being in custody but never asked any prosecutor why this was (H.81-83). Although this custody issue was not raised in the original 440 motion, defense counsel in no way gave any notice at the hearing that defendant wanted this factual issue added to the proceeding. The prosecutor accordingly only cross-examined to show the reason for the difference between the treatment during grand jury testimony and trial (which had to do with DeMoya's probation status), but no further (H. 84-85, 105). Had there been proper notice, there was ample basis on which to cross-examine. For example, at his deposition, DeMoya testified that the officers were either on the same floor or in a connecting room and although they did not let him go anywhere without them, he did not ask to, and did not feel he was in custody (Deposition at pp., 173-174). Chapin was asked nothing about this issue at the hearing. At the end of the day, there is no real evidence that DeMoya was actually in custody, or reasonably perceived that he was (People v. Yukl, 25 NY2d 585 [1969]), or that he was in custody because of prosecutorial distrust. Nor is there is evidence that the prosecutors knew or should have known that DeMoya considered himself in custody.

"VII. Undisclosed Documents Constituting Rosario and Brady Material"

Lawsuit. A civil complaint was filed days after DeMoya and Paulino completed their testimony at trial, before summations. It was not served until after defendant's sentencing (¶36, 39, 78, 96). DeMoya and his mother admitted at trial that they were planning to sue (Tr. 1198-99, 1305-7, 1420-21). Without any evidence that the prosecutors actually knew of the filing, and without any indication that the prosecutors had possession of the complaint, defendant argued in her motion that the People should have disclosed the actual complaint as Rosario material. Plainly, however, a document not in the People's possession is not Rosario material. People v. Kelly, 88 NY2d 248, 252 (1996); C.P.L.§240.45(1)(a).

In her post-hearing memorandum, at pages 22-24, defendant does not reiterate her Rosario claim, but now asserts that since the complaint was "secretly filed" as of March 15, 2007, before summations, the prosecutor's argument in summation - that the mere contemplation of a possible lawsuit should not lead the jury to disbelieve DeMoya and Paulino - was deliberately and knowingly misleading to the jury. There is no evidence that the prosecution [*14]was actually aware that filing was imminent or had been accomplished. Nor is there any evidence that DeMoya or Paulino knew of the anticipated filing, so there is no way of knowing whether the prosecutors could in fact fulfill what defendant now contends was their "responsibility to find out from these witnesses." DeMoya was not questioned at the hearing on this subject; nor was Chapin. Paulino, although made available for the hearing, was not called at all.[FN8]

In any event, once the complaint was filed, it was public record, available at the county clerk's office to both the People and the defense, for the asking. Layton v. Phillips, supra , 2009 WL 2043640 (2nd Cir. 2009). This case is therefore a clear contrast to People v. Stein, 10 AD3d 406 (2nd Dep't 2004), where the prosecutor knew that notices of claim had been confidentially filed, but did not advise the defense and specifically argued contrary to those known facts in summation. Had the defense in this case been diligent, it could have monitored the records regarding the filing of the anticipated lawsuit (at least in Queens, where Paulino lived and the complaint was in fact filed, and in Manhattan, where the school is located), and then asked this court at trial to take judicial notice of the filing, or at least objected to the prosecutor's summation on this ground. This court declines to consider this issue as the defense failed to make a full record at trial.

Contrary to the implication of the defense argument, there is nothing nefarious about filing a complaint without immediate service; the law provides for that. The filing is not even "secret," but immediately becomes a public record. Moreover, if service is not made within 120 days, there is no lawsuit unless there is a new filing. CPLR 306-b. In short, there is no evidence whatever that the prosecutor deliberately misled the jury, or misled them at all, when she argued "let me add one more thing about the possibility of a civil suit, if there is a civil suit, and all Carmen Paulino has done is look into the possibility of one, that will be decided in another court . . . and it has nothing to do with whether or not the defendant is criminally responsible for sexually abusing children in her care" (Tr. 3140; see page 15, n.6 of this opinion for a fuller summary of the prosecutor's motive arguments). The prosecutor simply argued from the evidence. In any event, it is the potential, or the hope for, a recovery in a civil action which provides the motive to falsify, so the misleading,' if any, was unintentional, immaterial, and inexcusably not the subject of an objection at trial.

Emails. A number of emails were exchanged between the prosecutors and DeMoya or Paulino which were not turned over to the defense. The People explain that these emails concerned scheduling, and not the subject matter of the witnesses' testimony. Defendant contends that these emails constitute Rosario/Brady material.

First, despite defendant's post-hearing argument, at pages 37-39, the hearing record does [*15]not make it "apparent" that the "withheld" emails (which Chapin testified related to scheduling matters) contain Rosario material for the hearing, just because Chapin incidentally testified about meeting with DeMoya in recounting what he told her about the issues litigated at the hearing. It was the substance of the meetings that was the subject matter of her testimony, not their scheduling. Moreover, the defense assertion that the emails were Rosario for the hearing comes only in the post-hearing memorandum and was not made at the hearing. This argument comes too late.

At the beginning of the hearing, the court pointed out that the email disclosure issue was, or could have been, raised at trial. The defense at trial, even before the late turnover of emails which led to the recall of DeMoya and Paulino and the adverse inference charge, knew at least that there had been emailing between Chapin and DeMoya or Paulino and if, for example, the defense never asked whether it had received all of the emails, the failure to make a record during the trial was unjustifiable. The issue of whether the court ruled correctly on such trial applications as were made is not properly before the court in this proceeding.

Indeed, an issue in this regard has been raised and is pending before the Appellate Division. Contrary to the argument in the defendant's post-hearing memorandum, there was no newly discovered proof alleged in the 440 motion or produced at the hearing that the late email disclosure at trial was willful. Chapin was not asked about this issue at the hearing. Moreover, at trial, once it had possession of the belatedly disclosed emails, the defense did not call the court's attention to the fact, on which the defense now depends, that the emails showed a "cc" to Chapin. Defense counsel simply said he did not "trust Ms. Friel's account" (Tr.1564-66). Chapin's testimony at the hearing, that in preparation of the Rosario package she recalled printing out her emails and sorting all the substantive emails for disclosure, adds nothing new to this debate. Defendant's argument (at page 27 of the post-hearing memorandum), that the printouts "must have" included the missing emails requires an impermissible speculative leap - that Chapin printed out not only the emails she sent to and received from the witnesses, but also printed out any emails copied to her. Defendant cannot meet her burden of proof by presenting surmise and inferences which are only possible.

Chapin testified credibly at the hearing about her production of the Rosario package, and this court also had the advantage of observing the prosecutors' stricken faces and demeanor at trial after Paulino had produced the missing emails at a trial preparation session and the prosecutors admitted their error to the court.[FN9] Unquestionably, the belatedly served emails were [*16]useful to the defense. Nonetheless, on analysis these belatedly served emails were not so extraordinary as to raise the inference that they were deliberately suppressed. After all, similar, if not entirely equivalent, material had been disclosed.[FN10] Without the late-disclosed documents, the truth - that the New York prosecutors wanted leniency for DeMoya in Connecticut - would not have been concealed from the fact finder; with them, and particularly with the adverse inference charge, the truth became more dramatic and thus more effective for the defense. See People v. Williams, 7 NY3d 15, 19-20 (2006)("not every significant misjudgment by the prosecution entitles the defendant to a windfall").

The record reflects that at the time of the trial disclosure, the court granted virtually all the relief requested by the defense short of a mistrial. The record of trial reflects that the court did not view the claimed inadvertence as an excuse or a mitigator. The defendant does not explain what more severe trial sanction might have been imposed beyond what happened here - recalling the witnesses and an adverse inference charge. A mistrial would not necessarily have had more impact on the prosecutors. Finally, the court did not "ignore" the defense applications at the hearing in this regard as the defendant argues in her post-hearing memorandum, at page 36. Rather, the court explicitly rejected and rejects this ground pursuant to C.P.L.§440.10(2) and (3).

Is there a reasonable possibility that the Brady violations contributed to the verdict and does the newly discovered evidence require a new trial?

The primary reason defendant is not entitled to relief here is the relatively minor, merely impeaching, and cumulative nature of the newly discovered and/or previously undisclosed evidence. There is no reasonable possibility that the failure to disclose here contributed to the verdict and no possibility much less probability that the newly discovered evidence would result in a different verdict. The parties also make certain arguments with regard to the strength of the evidence, however, and the court is compelled to address them, notwithstanding that harmless error arguments are pending before the Appellate Division in connection with the direct appeal.

First, DeMoya's testimony was almost entirely irrelevant with respect to the convictions for sodomy, criminal impersonation and falsely reporting an incident. While the prosecutor may have argued in support of her bail application long before trial that DeMoya's testimony would strengthen the case with respect to the Brook charges, the court never accepted that argument and explicitly instructed the jury to decide each count separately, and not to use DeMoya's claims that he had been raped as proof of propensity. Brook's testimony that the sexual relationship began before he reached the age of consent required no corroboration, particularly as, other than argument, there was no evidence that directly contradicted his testimony. Defendant also argues that the prosecutor spent five pages of her summation discussing Brook and DeMoya in tandem (Tr. 3194ff.), thus demonstrating the importance of DeMoya's testimony to the Brook counts. [*17]Actually, these five pages were simply a fair response to the defense summation, which began and ended with a discussion of what defense counsel called the common themes between Brook and DeMoya: lack of corroboration for the sex acts; delayed disclosure; and motive to falsify at the time the sexual accusations were first made (Tr. 2906-2914, 3062-3063, 3070-3072). The defense took full advantage of the weaknesses in DeMoya's credibility to try to taint Brook's.

At trial, the defense conceded defendant's guilt of the criminal impersonation and false reporting counts, and thebehavior represented by those counts was powerful evidence as to the sodomy counts. By demonstrating that defendant takes extraordinary risks, her behavior went far to refute the defense argument that defendant would not have engaged in the conduct Brook described because of the risk of getting caught.

Moreover, while defendant speculates that the jury notes show that the jury had difficulty reaching a verdict with respect to Brook, as shown by their asking about the elements of charges relating to him after several days of deliberation, other at least equally likely possibilities exist. The jury was instructed to "carefully review, weigh, consider and evaluate all of the evidence and decide which evidence you accept as credible" and then, as their "next duty . . . to determine, as to each count, whether you have a reasonable doubt." Accordingly, the jury may have decided relatively quickly that Brook was credible and turned to the more difficult task of debating DeMoya's credibility, delaying their specific consideration of the counts relating to Brook. Indeed, after the first two days of deliberation, all of the notes asked for testimony or exhibits relevant to DeMoya's credibility, not Brook's. Accordingly, no real conclusions can be reached from using the jury notes.

With regard to the bribery count, it was strongly supported by other evidence, so that even the jurors who did not accept DeMoya's credibility as to the sex offenses agreed on defendant's guilt.

As to the criminal impersonation and false reporting counts, defendant now argues that she did not concede these counts, "just that the acts occurred" (Reply Affirmation ¶21 at p. 9). This argument is simply untenable. Defendant contends that she did not concede mens rea, but reporting that another person, particularly a police cadet, has committed an act of rape appears specifically designed to injure that person. The defense did not argue to the contrary at trial, but rather that defendant suffered an "emotional breakdown" and "felt used" (Tr. 2993) over the end of her (adult) affair with Brook, and that "the only person who would be hurt in the end by those telephone calls was Lina Sinha" (Defense opening, Tr.102). Defense counsel had to concede that the "calls were just plain awful. . . . That happened. . . ." (Tr. 2995). In closing argument defense counsel described the calls and reports as "Lina's campaign to cause him [Brook] trouble or ruin his position with the Police Department" (Tr. 2914-2915)(see also, from the defense summation, e.g., "she used a lie to strike out at Chris Brook" [Tr. 2931; see also Tr. 2995]; "Lina Sinha did mischief here" [Tr. 2994]). And surely defendant was actually aware that she was falsely reporting an incident when she called the police from her home and reported she was being held prisoner in a closet in another apartment - the one in which Brook was living with his relatives.

Defendant also now argues that the convictions should be vacated because of "the egregious pattern of misconduct that occurred in this case" (post-hearing memorandum at p. 57), and because "Had the jury developed doubts about Brook's credibility in light of disclosures about how DeMoya had been handled, it might in turn developed doubts about the Brook-Sinha [*18]relationship, including whether Brook had acted maliciously and even violently toward Sinha. Sinha's conduct, viewed in such a different light, might not have appeared criminal" (id. at 58).[FN11] As previously discussed, the alleged pattern of misconduct depends in great part on misreadings or partial readings or the record. No such pattern has been established by the proof in this proceeding or by the record, and the naked speculation that the jury might have engaged in nullification needs no further discussion.

For the foregoing reasons, defendant's motion to vacate the judgment is denied.

This constitutes the decision and order of this court.

Dated: New York, New York

September 8, 2009

_________________________

BERKMAN, J.

Footnotes

Footnote 1:The pretrial Brady demands and responses are annexed to this opinion as Appendix A.

Footnote 2:Appellant's Brief to the Appellate Division, at page 15, incorrectly dates this first accusation as early March. This is plainly an editing, error as it is contrary to the evidence at trial and defense counsel's summation.

Footnote 3:The defense argues that the court should consider DeMoya's deposition testimony on the immunity issue for its truth. This is impermissible (People v. Settles, 46 NY2d 154, 167 [1978]), and in addition the court factually rejects the argument that the deposition testimony, under the circumstances present here, was sufficiently trustworthy and reliable to satisfy defendant's burden of proof. For example, defendant argues that DeMoya was not led at the deposition into saying he had a promise of immunity, but see the following passage from the testimony at the deposition: "Q. Did you understand . . . that you would not be arrested or prosecuted for any of the criminal activity you told them about? A. Yes. Q. And why did you believe that? Q. I don't know. I guess blind faith. Q. Did you believe that in part because of Ms Chapin telling you that nothing would be used against you? A. Yes. Q. And did you believe that also in part, they didn't seem interested in finding out any of the details . . .? A. Yes."( pp. 124-125).

Footnote 4:At this point, as relevant to the materiality of any additional disclosures of prior bad acts (whether considered as Brady violations or newly discovered evidence), counsel said, "I'm just going to skip it [DeMoya's prior bad acts] over because you know it."

Footnote 5:This crucial initial motivation was put in issue by DeMoya's testimony at trial that he was not thinking of potential help from the New York prosecutor at that time, as against Franz' testimony that he quickly discussed DeMoya's options with him, including cooperation, that DeMoya told Franz he was not interested in talking to anyone until after he got out of jail, but that Franz quickly reached out to the New York prosecutors (Tr. 2039-40). Parenthetically, DeMoya was not asked explicitly at trial whether he knew, on February 27, before he accused defendant of rape, that cooperation with the New York authorities had a potential benefit for him in Connecticut. Perhaps an answer from DeMoya that he did not even know that a benefit could be obtained by cooperating with authorities might have rendered relevant the effort to show that DeMoya had previously been an informant and reaped a benefit from cooperating in Connecticut. But DeMoya never denied knowing the potential benefits of cooperation, and at trial the court accordingly rejected the questions as to prior cooperation as irrelevant (Tr. 1272-73; 1976-79; 2030-31; 2038; but see Appellant's Brief, pp.20-22, 37-40; Reply brief, 11-13, 16-17).

Footnote 6:The prosecutor discussed DeMoya's motives repeatedly in summation: "I ask you to keep in mind as you sort through his testimony . . . . [w]hether he as the defense suggests put himself in this situation [of testifying] purposefully and for his own vile reasons" (Tr. 3125). "[T]he defense has spent a considerable effort in trying to persuade you that this is all about money and all about getting Paul DeMoya out of jail . . . . Paul knows little about [the civil suit] . . . . Does the fact that [Carmen Paulino] would seek civil redress in this situation surprise you? . . . . if there is a civil suit, and all Carmen Paulino had done is look into the possibility . . . it has nothing to do with whether or not defendant is criminally responsible for sexually abusing children in her charge"(Tr. 3134-3140). "Paul DeMoya told you . . . that what he remembers most about that period of time is that he wants to get out of jail. He is not shy to say that. He wanted to get out of jail" (Tr. 3155). "So no matter how many times Eric Franz . . . tries to get into his testimony that Paul wanted to get out of jail, it doesn't mean anything . . . . Paul said to him, don't tell anyone" (3157). "And on February 27th, 2006 when Paul tells Eric Franz what happened, that is before any talk of a lawsuit, before any E-mail . . . ." (Tr.3158; see also Tr.3161, discussing why DeMoya would make the accusation to Franz - the lawyer found for him by defendant's lawyer - if the accusation were a calculated scam to get out of jail).

Footnote 7:The defense opening and closing illustrate this point. In opening, counsel talked about DeMoya: "It's not only about selling drugs in . . . Connecticut. Paul DeMoya . . . had sold drugs in North Carolina, in Queens, New York. . . . He stole a credit card . . . from his mother's boyfriend and sold it for $5000. The drugs that he sold were worth thousands and thousands of dollars . . . . his probation was violated because he sold and used drugs again . . . . the DeMoya family before ever visiting the prosecutor and telling the prosecutor he was the victim of underage sex, had talked to a lawyer about the basis for a lawsuit in connection with the claim of underage sex . . . . DeMoya . . . now is in it for the money . . . ." (Tr. 113-115). Then in closing, counsel argued as follows on the subject of DeMoya. "Paul DeMoya . . . said nothing about an improper relationship with Lina Sinha until his own circumstances gave him a motive to lie." Counsel then added the prosecution's late disclosures of the Friel emails, attributing this to "an effort to obscure that fact" that DeMoya's probation violation "gave him a motive to lie" (Tr. 2932). "And, ladies and gentlemen, what better option for a lying — you know, this is proven by the record, thieving, that is also proven by the record, violent by his own admission, drug dealer, than to have an abuse excuse [for the violation of probation]" (Tr. 2941-2942). "Does anyone here think for a moment that Paul DeMoya wouldn't elevate his own interest . . . above the needs of another . . . . Paul DeMoya was smart enough to know the currency of having information to offer to the District Attorney's office. . ." (Tr. 2942). "It's not a question of did he in the end get a break? . . . . when he was calling Eric Franz . . . on February 27th . . . . Did he want something in return for his testimony? . . . and he only did get eight months in the potential five years, was expecting help from the District Attorney's Office" (Tr. 2956). "Why was he so desperate to conceal that motive to lie, the motive of getting help from the District Attorney's Office?" (Tr. 2965).

Footnote 8:It is irrelevant that the affidavits in support of the response do not deny the trial prosecutors' awareness of the filing, as the claim in the motion was that the civil complaint was Rosario material. There was no notice of a need to respond to an allegation that the prosecutors knew of the filing but intentionally misled the jury. It should also be noted that the post-hearing memoranda were simultaneously filed: the failure of one party to address the contentions of the other cannot in any way be deemed a concession.

Footnote 9:The defense speculates that the initial failure to turn over the emails was willful, and that the prosecutors were only forced to turn them over after the Paulino trial preparation session because to do otherwise would involve too many people in an "obstruction-of-justice conspiracy" (post-hearing memorandum at p. 28). Yet defendant asserts in essence that the same prosecutors either truthfully promised immunity (requiring the cooperation of prosecutors from multiple jurisdictions) or lied to DeMoya in telling him there was a promise of immunity. In either scenario, they would have to persuade DeMoya to deny the immunity promise and then have to rely on DeMoya (and many others) to keep mum about an "obstruction-of-justice conspiracy." Conspiracy theories are simply not evidence.

Footnote 10:.As already discussed, the promises which came after DeMoya's initial accusation, like the one in the Friel emails, were not as important to the defense arguments at trial as the initial motivation to accuse her. The late disclosure and the consequent court instructions, gave the defense an opportunity to emphasize the motive by discussing the efforts to "obscure" it (Tr. 2932-2933), and by criticizing the prosecution for uncritically rushing to DeMoya's side even before meeting him (Tr. 2946-2948).

Footnote 11:While the defense did argue at length that Brook had been assaultive to defendant at the end of their relationship (Tr. 2918-2930), in the end, even defense counsel had to concede that he had not proved that Brook had assaulted Lina Sinha on January 23, 2005, as she had claimed in a complaint to the police in March: "I was raising doubt" (Tr.3033).