Janet Difiore.

Thursday, February 7, 2008

The Court Report
By Richard Blassberg

Bubaris Defense Presses For Discovery Material

Introductory Analysis: Attorney Edward Hayes is representing suspended Mount Kisco Police Officer George Bubaris, who has been charged by the Westchester District Attorney’s Office in the death, last spring, of Rene Perez, a homeless, undocumented Guatamalan, found near death on Byram Lake Road in the Town of Bedford. Hayes is only too keenly aware of the District Attorney’s Office’s notorious reputation for withholding exculpatory information, Brady, material. He is also keenly aware of the Office’s willingness to engage in extreme
prosecutorial misconduct. In his Affirmation, he cites both the Anthony Disimone case, with the concealment of 376 pages and 52 boxes of exculpatory material for 13 years, as well as the Richard DiGuglielmo case, with witness intimidation and coercion, as two of the more egregious examples of the Office’s sordid history and unlawful practices in his diligent effort to compel the production of all discovery material in existence.

COUNTY COURT OF THE STATE OF NEW YORK
WESTCHESTER COUNTY
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THE PEOPLE OF THE STATE OF NEW YORK,

-against- NOTICE OF MOTION

GEORGE BUBARIS, Indictment No. 07-0679
Defendant.
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PLEASE TAKE NOTICE, upon the annexed affirmation of Edward W. Hayes, an attorney duly licensed to practice law in the courts of this State, and the prior proceedings herein, that the undersigned will move this Court on February 7, 2008, or as soon thereafter
as counsel can be heard, for an Order:

1. Compelling discovery, pursuant to CPL §§ 240.20 and 240-40, of records of the Bedford, New York Police Department relative to one Juan Rene Javier Perez (“Perez”), including but not limited to arrest reports, on line booking sheets, complaint reports, and Aided Reports pertaining to any and all police interaction with Perez at any time prior to and including the date of Perez’ death on or about April 28, 200

2. Compelling discovery of any and all records concerning transportation of Perez by members of the Bedford Police Department or at the behest of the Bedford Police Department to any hospital or other medical facility between April 29, 2005 and April 29, 2007;

3. Compelling discovery of the prior criminal record of Rene Perez.

4. Compelling discovery of records of any and all communications between representatives of the Village of Mount Kisco and/or its police department and Police Officer Edward Dwyer and Lt. Edward Dunnigan or their representatives that state or imply that either Police Officer Dwyer and Lt. Edward Dunnigan would receive any benefit from cooperating with the prosecutors in this case;

5. Compelling production of the complete personnel records of Police Officer Edward Dwyer for in camera inspection by the Court and appropriate disclosure to the defense;

6. Such other relief as this Court may deem fair and proper under the circumstances.

DATED: New York, New York
January 28, 2008


Respectfully submitted,
Edward W. Hayes, Esq.
Attorney for Defendant
515 Madison Avenue, 30th Floor
New York, New York 10022
(212) 644-0303

TO:


Justice Lester Adler (By fax 914-824-5386)
County Court
County of Westchester
111 Dr. Martin Luther King Jr. Boulevard
White Plains, New York 10601

ADA Christopher R. Daniele (By fax 914-995-4672)
Office of the District Attorney
Westchester County
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, New York 10601

John K. Grant, Esq. (By fax 845-566-9416)
Attorney for Edward Dwyer
3 Main Street, Suite 1
Nyack, New York 10960-3253


COUNTY COURT OF THE STATE OF NEW YORK
WESTCHESTER COUNTY
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THE PEOPLE OF THE STATE OF NEW YORK
AFFIRMATION

-against-

Indictment No. 07-0679


GEORGE BUBARIS,
Defendant.
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EDWARD W. HAYES, an attorney duly admitted to practice law in the courts of this state, affirms the following to be true under the penalties of perjury:

1. I represent George Bubaris, the Defendant herein, and in this capacity am fully familiar with the facts and circumstances of this matter. This affirmation is submitted in reply to the People’s affirmation and memorandum of law in opposition to Defendant’s motion for discovery and inspection of certain records pertaining to Juan Rene Javier Perez (“Perez”), the alleged victim in this case.


Giglio Material

2. The District Attorney’s hyper technical interpretation of Defendant’s request for communications reflecting any benefit that could inure to either Police Officer Edward Dwyer and/or Lt. Edward Dunnigan from cooperating from the prosecution carries with it significant risks of noncompliance with the prosecutor’s obligation to disclose exculpatory material.

3. It is axiomatic and beyond cavil that when a police officer becomes involved in an incident that could implicate him criminally, he receives use immunity for any compelled statements that are made to or at the behest of his employer, but that he runs the risk of losing his job if he refuses to answer questions posed to him by his superiors (presumably in conformance with any union contractual provisions regarding
notice and right to counsel).


4. In this case, if Dwyer and Dunnigan are cooperating with the prosecutor and agreeing to give testimony for the prosecution at the upcoming trial of Officer Bubaris, the Defendant has an absolute right to know whether their cooperation has been obtained via an express or implied threat that they will be disciplined or fired if they do not cooperate with the District Attorney.

5. In its opposition papers, the District Attorney writes that “[t]he people are unaware of any such communications between the village of Mount Kisco and either Police Officer Edward Dwyer or Lieutenant Edward Dunnigan that state or imply any such benefit from cooperation with the prosecution.” Affidavit of A.D.A. Christopher Daniele dated January 29, 2008 at 4-5.

6. If the District Attorney construed our demand to mean only a payment of goods or money or promotion, let us clarify. Keeping one’s job as a public employee and avoiding discipline or other adverse employment action are most certainly benefits. Since the District Attorney, in this motion litigation, has asserted dominion and control over documents of municipalities including Mount Kisco, their claim to be unaware of any such communications is insufficient.

7. In fact, we already are in possession of a number of letters, disclosed to us as discovery in pending civil litigation and attached hereto as Exhibit “A,” that clearly show that the Mount Kisco police chief directed officers to speak with the District Attorney, then withdrew those directions, but conveyed the unmistakable message that failure to “voluntarily” speak with the prosecutor was regarded as lack of “cooperation.” These letters were prepared in coordination with the District Attorney’s office as is obvious from a letter sent by the District Attorney herself (also not disclosed). We respectfully ask this Court to order the District Attorney to search for and to disclose any further communications that express or imply that any potential witness was notified, required, or encouraged by the Police Department or the District Attorney to submit to questioning, even if the word “voluntary” was used. Excessive coercive measures against witnesses by the Westchester District Attorney is amply demonstrated by the case of Richard DiGuglielmo which is now sub judice in this building in front of the Honorable Rory J. Bellantoni.

8. Certainly the District Attorney should not be the arbiter of whether any document or information that is arguably exculpatory or that implicates the credibility of a witness under Brady v. Maryland, or United States v. Giglio, 405 U.S. 150 (1972) be disclosed forthwith. As the Second Circuit Court of Appeals wrote in DiSimone v. Phillips and Spitzer, (citation), “to allow otherwise would be to appoint the fox as henhouse guard.” Decision at 23.

9. Reliance on hyper technical interpretations of statutes and insufficient inquiry not only ignores the District Attorney’s mandate to do justice, but also it carries the risk of subjecting that office to the same kind of criticism it received in DiSimone, supra. There the Westchester County District Attorney’s late disclosure of information concerning a second man’s involvement in a stabbing resulted in remand of the case for further fact-finding, remarking that [t]he more a piece of evidence is valuable and rich with potential leads, the less likely it will be that late disclosure provides the defense an “opportunity for use”. (See attached Decision Exhibit “B”.) (See the Decision on Remand, Exhibit “C”, also attached.) On remand when required to present evidence to support its position that the Defense had access to the material not disclosed by the Westchester District Attorney, the District Attorney’s office admitted, on the day of the hearing, that it had no evidence to support the position it had taken in the District Court and in the Second Circuit Court of Appeals.

Officer Dwyer’s Personnel Records


10. Similar reasoning applies to Defendant’s application for in camera inspection of Officer Dwyer’s personnel records. People v. Gissendanner, 48 N.Y.2d 543 (1979) and its progeny do not require that the Defense know all of the details of an officer’s prior
disciplinary record. Rather, they require more than a suspicion or mere curiosity. Here, our basis is a sworn attorney’s affirmation that references “several employment-related matters.”

11. Two factors underscore the good faith of our request. First, we ask for inspection by a respected Court, which can determine whether or not disclosure is warranted. Second, that we are not conducting the “fishing expedition” the prosecutor accuses us of is amply demonstrated by the fact that our application applies only to Dwyer.

Perez’ Prior History


12. Finally, the prosecutor’s fervent insistence that the Defense in this case is limited to the items detailed in Article 240 of the Criminal Procedure Law is woefully misplaced. The deceased’s disposition, prior health, prior criminal record, and prior contacts with police
officers from nearby jurisdictions are most certainly relevant and necessary to the preparation of a defense by any competent practitioner, especially in light of the fact that Perez interacted with Bedford police and a Bedford ambulance crew just a couple of hours before he died.

13. Furthermore, Perez’ health and behavior are highly relevant in the unusual circumstances of this case because the People must prove beyond a reasonable doubt that criminal conduct by the Defendant caused Perez’ death, see People v. Dlugash, 41 N.Y.2d 725, 731 (1977).

14. Both sides agree that it is improper to attempt to circumvent Article 240 by subpoenaing items that should be litigated in a criminal forum. A prime example of this would be a subpoena on a police department for witness statements that are not required
to be turned over until trial. Here, however, the deceased’s prior contacts with neighboring police departments, although highly relevant to this case and likely to yield exculpatory evidence, are not among the items referenced in the Criminal Procedure Law.

15. Here the Westchester County District Attorney has placed the Defense between the proverbial rock and a hard place by declaring that the above-cited information is not discoverable pursuant to Article 240, but that the District Attorney has dominion and control over it and doesn’t choose to release it.

16. Certainly it is appropriate to provide this information in sufficient time for trial, (see DiSimone) pursuant to subpoena (see DiSimone Decision from the Second Circuit Court of Appeals attached as Exhibit “B”). If that is so, their attempts to delay our receipt of it so that it is not received in time to be used to prepare for trial are unjust and improper.

WHEREFORE, it is respectfully requested that Defendant’s motion be granted and that this Court grant any such other relief as it deems fair and appropriate under the circumstances.

DATED: New York, New York, January 31, 2008

EDWARD W. HAYES


TO: Justice Lester Adler (By fax and FedEx 914-824-5386)
County Court
County of Westchester
111 Dr. Martin Luther King Jr. Boulevard
White Plains, New York 10601