Court of Appeals Decision On Gary Thibodeau
Court of Appeals Decision On Gary Thibodeau
No. 63
The People &c.,
Respondent,
v.
Gary Thibodeau,
Appellant.
MEMORANDUM:
Heidi Allen, an 18-year-old convenience store clerk, disappeared from her job
shortly before 7:55 a.m. on Easter Sunday morning in 1994. She has not been seen or heard
from since then. Defendant was convicted in 1995 upon a jury verdict of kidnapping in
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the first degree in connection with her abduction. The evidence at trial established that no
more than 13 minutes had elapsed between the time when Allen, the only employee in the
store, recorded the last sale in the cash register at 7:42 a.m., a sale of cigarettes to
defendant’s brother, Richard Thibodeau, and the time at 7:55 a.m., when a police officer
called his dispatcher from the scene after being told by a customer that Allen was missing
from the store. During that brief time period, an eyewitness observed two men and a
woman in the parking lot of the convenience store, positioned outside of a distinctive
“whitish blue” van, which the eyewitness subsequently identified as Richard’s van. The
eyewitness accurately described the van as having two black/dark blue doors in the rear
and two similarly colored doors on the right side, as well as a six-inch wide stripe across
the center of the right rear panel. That eyewitness further testified that he observed one of
the men restraining and struggling with the woman. A second eyewitness, who made the
purchase that was registered at 7:41 a.m., one minute before Richard’s transaction, also
identified Richard’s van as the van he saw in the parking lot. This witness saw Richard
enter the store and believed another man was inside the van with the engine running,
outside the store. He also provided a partial license plate number that matched the plate
on the Thibodeau van. Another witness identified Richard’s van, noting the dark blue or
black stripe on its side, as the “light blue” van that was “driving erratically” behind her on
the morning of the kidnapping. Other evidence at trial established that defendant was with
his brother earlier in the morning of the kidnapping and that Richard’s van was parked at
defendant’s house shortly after Allen went missing. Moreover, there was testimony that
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unrelated matter, including that he and his brother drove Allen in Richard’s van to the
woods by defendant’s house to talk to her that morning, but that they later purportedly
returned her to the store. Defendant also told the inmates that Allen was killed with his
shovel and mutilated. Defendant’s conviction for kidnapping in the first degree1 was
Brady violation for a failure to disclose certain information and newly discovered evidence
(CPL 440.10 [1] [g], [1] [h]). After conducting a full evidentiary hearing, County Court
detailed its findings of fact and conclusions of law and denied the motion. County Court
found the Brady information had in fact been timely disclosed to defendant’s attorney and
that the alleged third-party admissions constituting the newly discovered evidence were
inadmissible hearsay rather than declarations against penal interest. The Appellate
Division affirmed, with one Justice dissenting (151 AD3d 1548 [4th Dept 2017]). The
“Although we are prohibited from weighing facts and evidence in noncapital cases,
we are not precluded from exercising our ‘power to determine whether in a particular
judgmental and factual setting there has been an abuse of discretion as a matter of law’”
(People v Jones, 24 NY3d 623, 630-631 [2014] [citation omitted]). We now hold there
was no such error here and that defendant’s CPL 440.10 motion was properly denied.
1
Defendant and his brother, Richard, were indicted jointly, but tried separately. Richard
Thibodeau was acquitted after trial.
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men (James Steen, Roger Breckenridge and Michael Bohrer) made extrajudicial
of years after defendant’s conviction for kidnapping. At the hearing of a motion to vacate
the conviction, the “defendant has the burden of proving by a preponderance of the
evidence every fact essential to support the motion” (CPL 440.30 [6]). On this record, the
courts below determined that defendant failed to meet his burden and we cannot say, as a
matter of law, that he presented newly discovered evidence “of such character as to create
a probability that had such evidence been received at the trial the verdict would have been
more favorable to the defendant” (CPL 440.10 [1] [g]; see also People v Salemi, 309 NY
At the hearing defendant called as witnesses all three declarants of the hearsay
who testified to inculpatory statements alleged to have been made by each of the declarants.
The declarants denied making the admissions and any complicity in Allen’s kidnapping.
Nevertheless, enabled by the speculative nature of the disparate admissions containing few
details, defendant pursued more than one theory of complicity at the hearing – attempting
to establish that, either singly or in combination, the declarants were involved in the
kidnapping or the murder or the disposal of Allen’s body (compare People v Tankleff, 49
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Contrary to defendant’s argument on appeal, the courts below did not abuse their
discretion in holding that, as to those witnesses who the court found credible, the hearsay
testimony of third-party culpability was inadmissible at trial under the exception for
(People v Settles, 46 NY2d 154, 167 [1978] [emphasis added] [citations omitted). “The
rationale for allowing these statements, of course, stems from the assumption that a person
would not ordinarily make a statement which jeopardizes his interest by subjecting himself
human motivation and personality renders the stated reason for permitting these
Settles that “people may prevaricate” and that the possible reasons for such admissions
“are limited only by the depth of human experience” (46 NY2d at 168). Where the
defendant is attempting to introduce such a hearsay statement in his or her own defense,
the reliability of the declarant’s statement is demonstrated “if the supportive evidence
‘establishes a reasonable possibility that the statement might be true’” (People v DiPippo,
27 NY3d 127, 137 [2016], quoting Settles, 46 NY2d at 169-170). Even under this lesser
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standard, however, the proffered evidence must still provide “persuasive assurances of
Assuming, without deciding, that the declarants were unavailable to testify within
the meaning of Settles, notwithstanding their testimony at the hearing, the record supports
admissibility of the declarations against penal interest was not sufficient. The requisite
declaration. “By imposing such a requirement, a balance is struck between the interest of
defendant to introduce evidence on his own behalf and the compelling interest of the State
to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions”
proffered declarations against penal interest “involves a delicate balance of diverse factors
and is entrusted to the sound discretion of the trial court, which is aptly suited to weigh the
circumstances surrounding the declaration and the evidence used to bolster its reliability.
The crucial inquiry focuses on the intrinsic trustworthiness of the statement as confirmed
by competent evidence independent of the declaration itself” (Settles, 46 NY2d at 169; see
2
The need for corroborating evidence is especially apparent in high-profile cases, as it is
not uncommon – for a variety of reasons – for individuals to make statements claiming
responsibility for notorious crimes they did not commit (see e.g. State v Paredes, 775
NW2d 554, 567 [Iowa 2009] [noting that 200 persons confessed to kidnapping the
Lindbergh baby]). Such statements, particularly those made long after someone else has
been prosecuted for the offense, should “be treated with a fair degree of skepticism” (see
generally Herrera v Collins, 506 US 390, 423 [1993] [O’Connor, J., concurring]).
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to secure a new trial proved unavailing. In contrast to the evidence presented at trial, there
was no independent credible evidence at the hearing that any of the declarants were at or
near the scene of the kidnapping that morning, let alone in the limited window of time left
open by the trial evidence, or were with or near Allen relevant to the commission of the
kidnapping. There was not even any credible evidence the declarants owned a van.3 In
fact, the evidence failed to demonstrate that Steen and Breckenridge even knew Bohrer at
The speculative link between the declarations and Allen’s kidnapping was
evidenced when defendant presented a witness, Richard Murtaugh, whose family owned a
local scrap processing facility and who knew both Steen and Breckenridge in 1994.
Murtaugh testified that while defendant was incarcerated in this matter he and
Breckenridge removed an inoperable van from defendant’s property and “scrapped” the
vehicle. Breckenridge likewise testified that he and Murtaugh had removed the van from
defendant’s property after Allen was kidnapped. Although the men apparently discussed
the possibility that this particular van could have been used by the Thibodeaus to abduct
Allen, Murtaugh concluded based on his own search of the van that Allen’s body was
“[a]bsolutely not” inside the vehicle. Steen also testified that in his employment as a driver
for a business that transported scrapped vehicles to Canada, he did business with Murtaugh.
3
The dissent inexplicably views the trial testimony from witnesses who identified
Richard’s van as the vehicle they saw – both at the scene and driving erratically on the
morning of the abduction – as corroboration for the declarant’s statements (see dissenting
op at 20 n 4).
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Breckenridge told Steen that a van Steen had “scrapped” in Canada was connected to
Allen’s kidnapping, thereby implying that Steen had unwittingly been involved in
disposing of the body in Canada. While interesting, this testimony does not provide any
independent support for the declarations attributable to Steen or Breckenridge that they
that Allen was taken to a certain cabin following her abduction failed as well. As the
Appellate Division pointed out, the fact that cadaver dogs alerted to the possible presence
of human remains near a “collapsed structure” in the woods two decades after the crime
does not provide the corroboration necessary to ensure the reliability of such a speculative
theory. Indeed, a forensic examination conducted at the site by the Medical Examiner’s
Office yielded no evidence of human remains and this scientific result was roundly
supported by the hearing testimony that the structure was already partially or totally
collapsed at the time of the crime in 1994, which was inconsistent with the alleged
admissions. Moreover, given the absence of the requisite independent corroboration of the
hearsay evidence, the “sheer number” of the statements proffered did not, in itself, establish
trustworthiness as a matter of law, particularly considering the conflicting and varied nature
4
The dissent’s suggestion that the quantity of “interconnected and mutually-confirming
statements” found unreliable by the courts below somehow “reaffirms their reliability”
(dissenting op at 25) completely undermines our evidentiary rule of independent
corroboration to ensure the reliability of the declaration against penal interest and is
plainly inconsistent with Chambers. The Supreme Court has “recognized that state and
federal rulemakers have broad latitude under the Constitution to establish rules excluding
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Nor did defendant’s invocation of the criminal histories of the declarants provide
Bohrer’s prior convictions was properly excluded because the similarities of his prior
crimes and the kidnapping of Allen were not sufficiently unique to establish a particular
modus operandi or to identify any one person (see DiPippo, 27 NY3d at 138-139; People
v Beam, 57 NY2d 241, 251 [1982]). Our conclusion would be the same even if we were
to adopt a “more relaxed standard” for exculpatory evidence submitted on the defendant’s
There is also record support for the affirmed finding that certain witnesses – whose
live testimony was subject to full examination and evaluated by the hearing court, allowing
for fair consideration of such factors as motivation and recollection – were simply not
credible. County Court clearly did not engage in any mechanical or categorical rejection
of the witnesses’ testimony (compare Tankleff, 49 AD3d at 181). The court’s rejection of
evidence from criminal trials . . . Only rarely [has the Court] held that the right to present
a complete defense was violated by the exclusion of defense evidence under a state rule
of evidence. See [Holmes v South Carolina, 547 US 319, 331 (2006)] [rule did not
rationally serve any discernible purpose]; Rock v Arkansas, 483 U.S. 44, 61, 107 S.Ct.
2704, 97 L.Ed.2d. 37 [1987] [rule arbitrary]; Chambers v Mississippi, 410 U.S. 284,
302-303, 93 S.Ct. 1038, 35 L.Ed.2d [1973] [State did not even attempt to explain the
reason for its rule]; Washington v Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d
1019 [1967] [rule could not be rationally defended]” (Nevada v Jackson, 569 US 505,
509 [2013] [internal quotation marks omitted]). In Chambers, the Supreme Court did not
dispense with the need for reliability of the evidence but observed that the statements at
issue were made “under circumstances that provided considerable assurance of their
reliability,” including that they were made to close acquaintances shortly after the crime
and were corroborated by other evidence in the case (see 410 US at 300). The “sheer
number of independent confessions” referred to in Chambers was “additional
corroboration” of the statements – not the sole marker of their reliability (410 US at 300
[emphasis added]).
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unreliable for a myriad of reasons, was supported by the record. As to the hearsay
statement of Tonya Priest, her self-serving motivations and inconsistencies were weighed
by the trier of fact and her credibility as an affiant was “significant[ly] doubt[ed]” by the
courts below, which noted that she was never called to testify at the hearing by the defense,
thereby preventing any opportunity for cross-examination and a full vetting of her veracity.
In this regard, Priest’s allegations were not corroborated by any independent evidence and
hearing proof contradicted her allegations in several respects. Finally, County Court
subject to any identifiable hearsay exception. Significantly, County Court observed that
Wescott testified at the hearing that her statements in the recorded call were untrue.
The dissent, while acknowledging this Court’s jurisdictional inability to disturb the
credibility determinations of the hearing court, nonetheless engages in a de novo and rather
skewed analysis of the weight of the evidence at both the trial and the hearing in favor of
defendant’s search for a plausible hypothetical to interject his theory of a second van (see
People v Calabria, 3 NY3d 80, 83 [2004]). Contrary to the dissent’s postulation, the
aggregation of unreliable hearsay does not alter the character of the evidence to provide
was comprised of uncorroborated hearsay that the hearing court was entitled to reject,
within its discretion, as untrustworthy in nature and inadmissible at a trial based on its
assessment of witness credibility and factual findings. Consequently, once the hearing
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court was convinced, upon the testimony of the witnesses and the controlling law
governing hearsay evidence, that the newly discovered evidence was inadmissible at trial
and therefore not of a character that would have resulted in a verdict more favorable to
defendant, it “was not at liberty to shift upon the shoulders of another jury [its] own
responsibility” (see People v Shilitano, 218 NY 161, 180 [1916] [Cardozo, J.,
concurring]).5
5
In citing to Cardozo’s statement that the courts must do their duty and not shift their
responsibility to a new jury, we certainly did not remotely intimate as suggested by the
dissent that the trial court should ignore the hearing evidence or that the appellate court
should not exercise its reviewing powers on the appeal.
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People v Gary Thibodeau
No. 63
RIVERA, J. (dissenting):
Defendant Gary Thibodeau has been incarcerated for over two decades—almost a
third of his life—for the kidnapping of a young woman who disappeared one morning and
was never seen again. No physical or forensic evidence connected defendant to the
abduction, and no witness ever identified defendant as the kidnapper or placed him at the
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scene where the victim was taken. Nor has defendant confessed to having committed the
crime; rather, he has always maintained his innocence. He now asserts that newly
discovered evidence points to three men who have admitted to abducting and murdering
the victim. Turning to the state courts, defendant asks for an opportunity to present this
third-party culpability evidence to a jury, which would once again decide his fate. I believe
County Court decided otherwise and denied defendant’s CPL 440.10 motion to
vacate his conviction. Over a vigorous and compelling dissent, a split Appellate Division
panel affirmed (People v Thibodeau, 151 AD3d 1548 [4th Dept 2017]). A majority of our
Court now affirms the Appellate Division order, agreeing with the courts below that the
evidence defendant seeks to present is not credible or corroborated. I disagree and would
reverse and order a new trial, because defendant presented admissible evidence at the
hearing that is “of such character as to create a probability that had such evidence been
received at trial the verdict would have been more favorable to the defendant” (CPL 440.10
[1] [g]). The majority’s assertion that the confessions are uncorroborated does not stand
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I.
A. Defendant’s Prosecution
The People separately tried defendant and defendant’s brother, Richard, for the
kidnapping of the 18-year-old victim. Richard was initially arrested and charged alone
approximately one month after the disappearance. He admitted to being at the store with
his van during the time the People proposed the victim was kidnapped, and there was
evidence of a store receipt for the purchase of cigarettes at 7:42 a.m., around the time the
victim disappeared, which the People established were bought by Richard. The police later
decided that defendant and Richard acted together and indicted defendant, notwithstanding
the alibi provided by defendant’s girlfriend, who stated that they were together at
The People’s narrative as presented at defendant’s trial was that defendant and
Richard kidnapped the victim between 7:41 a.m. and 7:45 a.m. on Sunday, April 3, 1994
outside a convenience store where she worked, and put her in Richard’s van, which
defendant then drove away from the scene. The People presented no physical, forensic, or
connecting defendant to the crime was testimony about the general appearance of one of
two inmates concerning comments defendant allegedly made about the victim while the
three were briefly incarcerated together, though none of those comments constituted
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One witness, John Swenszkowski, who made a purchase at the store at 7:41 a.m.,
testified that he saw a “pretty beat up van” with “a lot of rust” parked outside the store. He
could not recall the color of the van. Upon leaving the store, Swenszkowski testified that
he saw a man enter, whom he described as between 5’6” and 5’7”, 145 pounds with a
mustache. It is undisputed that this description fit Richard’s appearance at the time.
Swenszkowski further testified that, after over a minute had passed (during which he was
settling into his car), he saw the van move forward several feet and stop. The People argued
this established defendant was in the van while Richard was in the store.1 Swenszkowski
did not claim to have witnessed the kidnapping. He did not testify to seeing Richard
interact with the victim, nor to seeing anyone place the victim into the van outside. Indeed,
he never stated that he saw defendant at, or anywhere near, the store.
Another witness, John Stinson, testified that he arrived at the store at about 7:41
a.m. He did not see the victim or any other vehicle in the store parking lot. He flagged
down an officer who sent a notice at 7:55 a.m. about the victim’s disappearance. The
The only witness who claimed to see anyone interacting with the victim in the
convenience store parking lot on the day of her disappearance was Christopher Bivens.
Five days after the disappearance, Bivens told the police that as he drove by the store
1
As pointed out by the dissent below, Richard could have returned to the van and been the
driver, given that at least one minute elapsed between when the man Swenszkowski
described as Richard entered the store and when Swenszkowski eventually saw the van
move.
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between 8:00 a.m. and 8:30 a.m. on the day of the abduction, he saw two men and a woman
arguing outside the store, near a vehicle, although he could not give a description of either
the people or the vehicle. Ten days later—not long after a reward was posted—Bivens
again spoke to the police. This time, he said that the van was light blue with dark trim.
Richard’s van was white, with black doors and a black stripe, and was rusted in certain
places. Two days later, the police drove Bivens past Richard’s van and Bivens told them
the van’s style matched, but that the color was wrong. The next day the police showed
Bivens a photograph showing the side and back doors of Richard’s van, and again Bivens
stated that Richard’s van was not the one he saw at the store. When the police then showed
him a photograph of the van’s black side doors, Bivens said he was still uncertain. The
following day, for a third time, the police showed Bivens pictures of Richard’s van. At
that point, Bivens identified the van as the one he saw the day the victim was abducted.
At trial, Bivens testified that the woman he saw was the victim, one of the two men
he saw was holding her in a bear hug, and the other man was walking towards the van. He
described both men as 30 to 40 years old, 5’11”, with husky builds, and the van as having
a painted-on stripe and spots of rust. Other testimony established that defendant was
Nancy Fabian testified that at approximately 7:45 a.m., a van came up fast behind
her, swerving back and forth. She saw a white male with dark hair and what appeared to
be a beard and mustache driving while using his right arm to control something in the back
of the van. Even though the abduction occurred in April, she reported this in June. Nancy
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had only been able to see the front of the van through her rearview mirror, and first
described it as light blue with something in the middle, possibly a stripe. She then
identified Richard’s van from a photograph as the vehicle she saw that morning.
Prior to his arrest for the victim’s kidnapping, defendant was arrested on an
unrelated offense. At trial, two inmates who had been at the same out-of-state facility as
defendant testified to statements he made regarding the victim’s abduction, including that
he knew the victim was dead and would not be found, that her head was bashed in with a
shovel, and that, because there was no struggle at the store, she must have known the
abductors. Defendant also allegedly stated that he and Richard spoke to the victim
regarding a disagreement over a drug deal and drove her to the woods near his house to
talk, after which Richard drove her back to the store. When Richard later went to the store,
she was gone. According to these inmates, defendant would hear about the progression of
the investigation from his brother and would pass details on to them. The two inmates
never testified that defendant admitted to the victim’s abduction, or to causing her any
harm. On the contrary, their testimony amounted to defendant having last seen her alive
Richard testified on behalf of defendant that he saw the news about the abduction
the same day and called the police. Within a week, Richard had consented to a search of
2
Defendant argued at trial and on this appeal that the inmates were not credible because
they received favorable deals in exchange for speaking with prosecutors, who sentenced
them to probation on their respective pending charges, and because of inaccuracies in their
accounts.
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his van, which the police examined comprehensively. Carpeting from the van was
analyzed by an FBI lab, but no blood was found, and the hairs and fibers collected did not
match the victim, nor did the fingerprints found in the van. A forensic scientist testified at
trial that if there had been a struggle—as had been suggested by the People’s evidence—it
was likely that there would have been some transfer of microscopic material from the
victim to the van. No such material, however, was found. Finally, impressions of the van’s
tires did not match the impressions of tire marks found directly in front of the store, where
multiple witnesses testified they had seen a van and where Bivens testified he had seen the
victim abducted.
As with the testing of Richard’s van, there was extensive analysis of defendant’s
home, and no evidence of the crime was found there either. The police and FBI’s search
and analysis of items from the house turned up no evidence linking defendant to the victim.
This was not for lack of trying: material from defendant’s furnace was tested and found to
contain no evidence; bone fragments in a pile of soot were examined but proved not to be
of human origin; and knives, saws, and a shovel were tested and found to contain no trace
of the victim.
Defendant took the stand in his defense and testified that he was at his home with
his girlfriend from late Saturday night through Sunday evening. Shortly after 10 a.m. on
Sunday he received a call from Richard. His girlfriend, with whom he lived, testified to
the same. Although three witnesses testified that Richard’s van, or a van that matched its
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defendant testified that he had no contact with his brother that day, and two of defendant’s
neighbors stated that they did not see or hear Richard’s van at defendant’s home that
receive updates from his brother about the investigation while in jail and would relay
The jury returned a guilty verdict, and defendant’s conviction was affirmed on
appeal (People v Thibodeau, 267 AD2d 952 [4th Dept 1999], lv denied 95 NY2d 805
[2000]). Defendant’s federal habeas corpus petition, which challenged the constitutionality
of New York’s first degree kidnapping statute on vagueness grounds, was denied
(Thibodeau v Portuondo, 486 F3d 61 [2d Cir 2007]). Following defendant’s conviction, a
separate jury acquitted Richard, despite his admission to making the last purchase at the
Years later, defendant learned of new evidence that supported his claim of
innocence. Defendant moved to vacate the judgment pursuant to CPL 440.10 (1) (b) and
(h) on the ground that the People suppressed Brady material, specifically evidence of the
victim’s status as a police confidential informant, and under CPL 440.10 (1) (g) on the
ground of newly discovered third-party culpability evidence that would have resulted in a
more favorable verdict to the defendant. Defendant presented evidence that three men,
Michael Bohrer, James Steen, and Roger Breckenridge, abducted the victim from the store
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in Bohrer’s van, killed her, and disposed of her body by cutting it up and sending it to
Defendant presented an affidavit that Tonya Priest provided to the police in 2013
claiming that in 2006, Steen vividly described to her and her friend how he, Bohrer, and
Breckenridge abducted and murdered the victim. The police subsequently recorded a
conversation between Priest and Jennifer Wescott, who was Breckenridge’s girlfriend for
years after the abduction, and the call was presented at the hearing. Unaware that the call
was being monitored, Wescott stated that Bohrer, Steen, and Breckenridge brought the
victim to Breckenridge’s house in a van, against the victim’s will, but Wescott did not
implicate herself in the crime. Wescott claimed to have had an argument with Steen over
the fact that there was an “innocent man in prison,” and said that she could not talk to Priest
confessions by these three to the victim’s abduction and murder. Regarding Bohrer, one
person testified that, having just met Bohrer in a bar one night, Bohrer confided, “the
Thibodeaus . . . they’re not the ones that did it,” “I know who did it,” and “I know the
whereabouts of [the victim’s] body.” According to the witness, Bohrer was sobbing and
continued that he had “been dealing with this too long” and “didn’t want to deal with it any
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more (sic).” Another witness, a former co-worker of Bohrer’s, testified that he had told
her and her sister that “he would do [them] like he did [the victim].”
Another four people testified to having heard Steen make similar incriminating
comments. According to Amanda Braley, she was at a party with Steen and heard him say
“I will never see a day in prison for what we did to [the victim].” The other three witnesses
testified that they had heard Steen make various inculpatory statements, including: “the
actual van that was used in her kidnapping, [mine’s] the one that hauled it to Canada and
had it scrapped,” that “[the victim] was a rat,” that “I showed you what I did with [the
victim],” “[l]ook at what happened to [the victim],” “[s]he’s long gone now,” “[s]he’s gone
to Canada,” “I know more about this . . . case than the Oswego County Sheriff’s [sic], they
got the wrong guys,” and that “[t]hey got the Thibodeaus in there, and the Thibodeau boys
didn’t do it.”
Braley and four other people testified that Breckenridge had either discussed
murdering the victim outright or made other inculpatory remarks in their presence. Braley
disclosed that at a different social gathering, Breckenridge said “he took that bitch to the
scrap yard in the van, they had it crushed, and that she was shipped to Canada,” and
“nobody’s ever going to find her.” Christopher Combes described how, when he worked
with Breckenridge in the early 2000s, Breckenridge told him, “[w]e chopped her up, we
put her in a wood stove and put her in a vehicle and sent her to Canada.” Another three
witnesses related similar statements by Breckenridge, including “the bitch ain’t going to
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be found,” “[s]he’s a rat,” “[i]t’s a waste of [the] government’s time to be finding her,”
“she was going to break him on selling drugs,” and “that bitch is long gone.”
At the hearing, Wescott testified that Breckenridge told her he knew the victim was
burned in a stove and “taken care of” in a van. Defendant also presented evidence from
the renewed police investigation—including from the location where the men had
reportedly killed the victim—which tended to confirm many of the key details of these
confessions.
testified at the hearing. All three men generally denied making the incriminating
statements. Nevertheless, Steen acknowledged that he hauled scrap materials in 1994 for
Wescott. Steen testified that he did not know what happened to the victim’s remains, but
that if he did know, he would not tell. He started discussing that he may have
“unknowingly” destroyed the victim’s body in the white van when the court cut him off
for reasons unknown. Breckenridge testified that he started dating Wescott on her
eighteenth birthday in 1995, was friends with Steen, worked for Murtaugh in 1994, and
worked with Bohrer once but did not know him in 1994. He also said neither he nor
Wescott ever lived on Rice Road. Bohrer testified he had just started working at
Murtaugh’s junkyard at the time of the victim’s disappearance, did not know Steen, and
then, rather incoherently, claimed that he was “looking into” the victim’s death. The court
gave him a break to compose himself because he became upset during his testimony.
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After the hearing, the court denied defendant’s motion for a new trial. As to the
third-party culpability evidence, the court concluded that Pierce’s identification of Steen
was not credible, Wescott’s admissions to Priest during the recorded phone call were not
reliable and therefore inadmissible, and that the hearsay confessions by Steen,
Breckenridge, and Bohrer were not sufficiently corroborated for admission as statements
against penal interest. The Appellate Division affirmed the denial of the motion, with one
Justice dissenting (Thibodeau, 151 AD3d 1548). The dissenting justice granted defendant
leave to appeal.
II.
Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of conviction on the
grounds that “[n]ew evidence has been discovered . . . [that] could not have been produced
by the defendant at the trial . . . and which is of such character as to create a probability
that . . . the trial . . . verdict would have been more favorable to the defendant.” The
defendant has the burden of establishing “by a preponderance of the evidence every fact
essential to support the [440] motion” (CPL 440.30 [6]; see also People v Jones, 24 NY3d
We have stated that denials of CPL 440.10 (1) (g) motions without a hearing are
reviewed for abuse of discretion (see People v Wright, 27 NY3d 516 [2016]; People v
Gross, 26 NY3d 689 [2016]; Jones, 24 NY3d at 630). While this Court has not explicitly
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said so, it follows that a denial after a hearing should also be reviewed under that same
standard, “which involves a legal, rather than factual, review” (Jones, 24 NY3d at 629
[drawing upon the history of CPL 440.10 to determine that this Court should review for
abuse of discretion]). As such, this Court may not find facts or make credibility
determinations, and so to the extent the lower court based its decision on a factual or
credibility finding, we are foreclosed from review, unless there is no record support for the
determination (see People v Lee, 29 NY3d 1119, 1119 [2017]). Nevertheless, as stated in
Jones:
I agree with the majority that there is no error attributable to the hearing court’s
determinations that one witness, William Pierce, was not credible and the evidence of
Bohrer’s past crimes was inadmissible.3 That is where my agreement ends, as I disagree
with the entirety of the majority’s analysis regarding the admissibility of Bohrer, Steen,
3
William Pierce, an eyewitness who did not come forward until after the trial, testified at
the hearing that he saw Steen hit the victim in the back of the neck and drag her into a white
van. Pierce had first told the police that the defendant was the perpetrator, but upon seeing
a photo of Steen in the newspaper realized it was Steen who he had seen that morning.
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statements were adequately corroborated and “of such character as to create a probability
that had such evidence been received at the trial the verdict would have been more
constitutes hearsay, though it may be admissible if it falls within a hearsay exception and
the proponent demonstrates its reliability (see People v Brensic, 70 NY2d 9, 14 [1987];
statement against the declarant’s penal interest (see Brensic, 70 NY2d at 14), because “a
person ordinarily does not reveal facts that are contrary to [such person’s] interest” (People
v Maerling, 46 NY2d 289, 295 [1978]). “Declarations against interest are not admitted on
the credit of their makers, but on their highly disserving nature,” and when it comes to
statements against penal interest, “[o]ne thing is clear[:] the severe sanctions potentially
attendant upon a conviction for crime, whether by way of imprisonment or fine or both,
make admissions of guilt among the most disserving of declarations” (id. at 297-299).
This Court has developed four criteria to guide a judge “in reaching a conclusion
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penal interest; third, the declarant must have competent knowledge of the
facts underlying the statement; and, fourth, and most important, supporting
circumstances independent of the statement itself must be present to attest to
its trustworthiness and reliability” (People v Settles, 46 NY2d 154, 167
[1978] [internal citations omitted]).
The last criterion requires “some evidence, independent of the declaration itself, which
fairly tends to support the facts asserted therein” (id. at 168). “Supportive evidence is
sufficient if it establishes a reasonable possibility that the statement might be true” (id. at
When assessing the sufficiency of the supportive evidence, courts must consider the
critical rule that “declarations that exculpate the defendant . . . are subject to a more lenient
standard” (People v Soto, 26 NY3d 455, 462 [2015], citing Brensic, 70 NY2d at 15). In
such cases, the independent evidence is subject to a less demanding threshold such that “a
defendant need not show that the penal consequences to the declarant were of such
magnitude that they ‘all but rule out any motive to falsify’” (id., quoting Brensic, 70 NY2d
at 15, citing Maerling, 46 NY2d at 298). The reason for this relaxed standard is best
understood in contrast to the heightened burden for statements that inculpate a defendant:
“In a criminal case reconciliation of the search for truth with concern for
fairness to the defendant must proceed with great care. And, where the
declaration is inculpatory in character, scrutiny of its reliability should, if
possible, be even more circumspect because of the due process protections
afforded those charged with crime, including, of course, the requirement that
guilt be proved beyond a reasonable doubt” (Maerling, 46 NY2d at 298).
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that exculpate a defendant, and therefore the reliability of the statement need only meet a
statement, the court must not weigh in the balance either its own opinion of the
declaration’s truth or the People’s ability to persuade the jury of defendant’s guilt.
“Whether a court believes the statement to be true is irrelevant, and the question of
People’s case” (Settles, 46 NY2d at 170). Once a proponent establishes the “possibility of
trustworthiness, it is the function of the jury alone to determine whether the declaration is
The majority here assumes without deciding that the first criterion, which requires
against penal interest when the declarant takes the stand and denies having made the
statement (maj op at 6). I would adopt this position as a matter of law, because, where the
other three criteria are met, admission of the statement protects defendant’s constitutional
rights, furthers our legal system’s truth-seeking function, and comports with the underlying
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Rules excluding evidence from criminal trials “do not abridge an accused’s right to
present a defense so long as they are not arbitrary or disproportionate to the purposes they
are designed to serve” (United States v Scheffer, 523 US 303, 308 [1998]). “[T]he
“infringe[s] upon a weighty interest of the accused” (id.). Accordingly, application of this
hearsay rule so stringently as to deny a defendant’s right to present a defense would violate
the Constitution (see Chambers, 410 US at 294 [discussing exclusion of hearsay that served
accused in a criminal trial to due process[, which] is, in essence, the right to a fair
Another rationale for admitting statements against penal interest despite declarants’
541 US 36, 61 [2004]). Indeed, as the Third Department recognized in People v Oxley,
“the ability to challenge [out-of-court statements against penal interest] through cross-
examination when the witness testifies provides a better opportunity to test or assure their
credibility” than if the declarant did not testify (64 AD3d 1078, 1084 [3d Dept 2009]).
Since Bohrer, Steen, and Breckenridge would be subject to cross examination about their
statements, the reliability of the alleged, inculpatory remarks would be put to the test.
Other jurisdictions also admit third-party statements against penal interest where the
declarants have testified and denied the statements. In Hines v Commonwealth, for
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example, the Supreme Court of Virginia stated, “if [a declarant] were present and
testifying, but denying that [they] made any such confession, then [their] own original
testimony would not be available, and it would be competent and proper to introduce proof
of the alleged confession by others who heard it, and let the jury determine as to the
credibility of the testimony” (136 Va 728 [1923]). The Supreme Court of California has
similarly noted that the search for the truth is best served by confronting the declarant with
the statements (see People v Spriggs, 60 Cal2d 868, 875 [1964] [“If (the declarant) was
available . . . the credibility of (their) extrajudicial statements would not be lessened by that
fact. Furthermore, the opportunity for cross-examination would eliminate the basic
objection to the hearsay character of the evidence”]). The Supreme Court of Oregon has
finding the truth and incentivize fabricated statements, which the hearsay rule is intended
to weed out.
The United States Supreme Court’s analysis in Chambers is instructive. There, the Court
held a third-party confession admissible, notwithstanding the hearsay rule. The Court
noted that “if there was any question about the truthfulness of the extrajudicial statements,
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[the other suspect] was present in the courtroom and was under oath. [That third party]
could have been cross-examined by the State, and his demeanor and responses weighed by
implicated, the hearsay rule may not be applied mechanistically to defeat the ends of
justice” (id. at 302). Just so here, where excluding statements made by Bohrer, Steen, and
Breckenridge would deprive defendant of his right to a fair trial by keeping evidence of
defendant’s possible innocence and third parties’ guilt from the jury. Thus, if defendant
satisfies the other criteria for admission of a statement against penal interest, the declarants’
willingness to testify and deny making inculpatory statements does not bar the admission
of those statements.
2. Declarant’s awareness of the disserving nature of the statements and knowledge of the
underlying facts
As to the second criterion, all the statements evince the respective declarant’s
awareness that the statements were against their penal interest when made, because all the
statements admitted the declarant’s participation in the disappearance of the victim, baldly
pronouncing that they abducted and murdered her. Braley testified that “[Breckenridge]
laughed . . . and he said that he took that bitch to the scrap yard in the van, they had it
crushed, and that she was shipped to Canada . . . nobody’s ever going to find her.” She
also testified to hearing Steen brag, “I can . . . tell you I will never see a day in prison for
what we did to [the victim].” The man who had encountered Bohrer in a bar testified that
Bohrer explained, “[the Thibodeaus are] not the ones that did it. He says I know who did
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it and I know the whereabouts of [the victim’s] body.” The declarants could not have
misunderstood or been uncertain that “criminal liability would attach” based on their role
in the victim’s kidnapping and killing (Settles, 46 NY2d at 168). Moreover, all three had
knowledge of the particulars of their conduct in furtherance of the crime, satisfying the
With respect to the last criterion that “there must be some evidence, independent of
the declaration itself, which fairly tends to support the facts asserted therein” (Settles, 46
NY2d at 168), this assessment depends on the nature of the statement. As we explained in
People v DiPippo, “[w]hen considering the reliability of a declaration, courts should also
consider the circumstances of the statement . . . . Where . . . the statement is offered by the
possibility that the statement might be true’” (27 NY3d 127, 137 [2016], quoting Settles,
46 NY2d at 169-170).
lacking any independent support (maj op at 8), defendant presented an exhaustive amount
of corroborating evidence for the confessions.4 First, while the hearing court said that the
4
Defendant also relied on evidence from his trial. For example, Fabian and Bivens testified
that a light-colored van was involved in the abduction, which Bivens first told police was
the style of Richard’s van but a different color. Defendant now argues that indeed there
was a light-colored van used in the victim’s abduction, but it was other than his brother’s:
Breckenridge and Steen both stated that that they used a van to kidnap and then dispose of
the victim’s body, and Steen specified that it was Bohrer’s white van. The fact that the
trial witnesses’ accounts either barely or not at all conflict with Steen and Breckenridge’s
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three declarants did not know each other, evidence demonstrated that they all worked for
or did business with Richard Murtaugh, for whom Steen hauled scraps to Canada. 5 This
evidence linked the three declarants to each other and to the abduction, and supports the
from Priest, which described how Steen had told her in 2006 that he, Bohrer, and
Breckenridge brought the victim to Breckenridge’s house on Rice Road, at which Wescott
was present, and that the three men took turns beating the victim to death, cut up her body,
hid her under floorboards in a cabin in the woods, and burned her clothes in a wood stove
in the same cabin. Defendant’s evidence established that there was a dilapidated cabin at
the location described. In July 2014, investigators responded to a report by the current
resident of the house—who stated that she had seen two people emerge from the woods
where the cabin is located the previous night—and noted the “collapsed” cabin appeared
to have been “sifted through.” Three cadaver dogs subsequently indicated the cabin had
retelling lends credence to their statements. Bivens also testified to seeing one of her
abductors hold the victim in a “bear hug” in front of the van, which matches Steen’s
description of the abduction:
“[Steen] went in some side door, Roger went in the front doors to keep her
distracted while [Steen] came in and grabbed her from behind the counter,
Michael stayed in the van. [Steen] said once he grabbed her, Roger helped
grab her and they went back out the side door, when they got outside the
doors of the van were open, [Steen] described bear hugging her and
slamming her into the van.”
5
As further evidence of Murtaugh’s involvement, Wescott texted him soon before her
interview with the police. She told the police she had done so “[b]ecause supposedly Tonya
said the van was junked there.” In fact, Priest revealed no such detail on the call, and never
mentioned Murtaugh’s name.
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the scent of human remains.6 Moreover, a witness at the hearing testified that Wescott
lived on Rice Road at the time of the crime; there was, however, conflicting testimony on
this point. Steen had also told Priest that Wescott moved to Florida after the police began
searching behind Breckenridge’s house. In her recorded phone call with Priest, Wescott
stated she and Breckenridge moved to Florida after the victim’s death, consistent with
Steen’s narrative. Wescott also wrote the following messages to friends during the recent
investigation: “If anyone ask[s] you I never went to [F]lorida when [the victim] went
missing and I never lived on [R]ice [R]oad—don’t tell them anything!” and “I will not be
the next one dead in a box in the woods.” A post office report from that time noted that
Bohrer also left town for a few weeks starting on Easter of 1994. The police would later
The majority writes that “there was no independent credible evidence at the hearing
that any of the declarants were at or near the scene of the kidnapping that morning” (maj
6
According to the majority, “the structure was already partially or totally collapsed at the
time of the crime in 1994, which was inconsistent with [Steen’s] alleged admissions” (maj
op at 8). Conflicting evidence does not render such statements inadmissible (see e.g.
DiPippo, 27 NY3d at 133 [reversible error to exclude third-party hearsay confession,
notwithstanding testimony of eyewitness that the man she saw with the victim was not the
declarant]). Thus, the majority’s quarrel seems to be with our precedent, which sets a low
burden of proof: whether sufficient corroboration exists to “establish[] a reasonable
possibility that the statement might be true” (id. at 137, quoting Settles, 46 NY2d at 169-
170). In any event, the only testimony on this point presented at the hearing was by a
neighbor who stated, “I believe it was half caved in, maybe fully caved in, I can’t really
remember. I know it was caved in a little bit.” That the cabin was “caved in a little bit” is
not necessarily inconsistent with the use of the cabin to hide a body, and County Court
never made such a determination. Also, contrary to the majority’s representation of the
record, there was no testimony that the structure was in this dilapidated condition “at the
time of the crime,” but only at some point in 1994.
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op at 6). Yet, “we have never held that there must, in every case, be proof directly linking
the third party to the crime scene; indeed, we have recently held that, in certain
Defendant also provided corroborative motive evidence: police files showing the
victim was a confidential informant helping with drug investigations, evidence that Steen
and Breckenridge were involved in drug use or sales, and testimony by four people who
heard Breckenridge or Steen make related comments, such as that the victim “was going
to break [them] on selling drugs.” In addition, a police deputy had accidentally left the
victim’s confidential informant index card and photograph in a parking lot in front of the
D&W store from which she was later abducted. Bohrer’s notes indicated he knew the
victim’s card had been found in the lot, despite the card’s disappearance never having been
made public. The foregoing evidence is, in accordance with Settles, “some evidence that
fairly tends to support the facts asserted therein,” and thus “establishes a reasonable
possibility that the statement[s against penal interest] might be true” (Settles, 46 NY2d at
That conclusion is strengthened when the evidence is considered in its totality and
in context. “When considering the reliability of a declaration, courts should also consider
the circumstances of the statement, such as, among other things, the declarant’s motive in
making the statement—i.e., whether the declarant exculpated a loved one or inculpated
someone else, the declarant’s personality and mental state, and the internal consistency and
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coherence of the declaration” (DiPippo, 27 NY3d at 137 [quotation marks and citation
omitted]). Notably, several witnesses have testified to statements by these three declarants
that not only implicate them in the victim’s disappearance, but constitute admissions of
guilt of kidnapping and murder. Some of the statements supported the others, such as the
descriptions of the van, the destruction of the victim’s body in a cabin, and statements
regarding the victim’s body being taken to Canada. Those statements should be assessed
by a jury “to determine whether the declaration[s are] sufficient to create reasonable doubt
of guilt” (Soto, 26 NY3d at 462, quoting Settles, 46 NY2d at 170). To the extent some of
introduced through Braley, Combes, and Priest (see DiPippo, 27 NY3d at 138 [including
some hearsay among the evidence that satisfied the Settles test]).
Moreover, the singular driving concern of the hearsay rule—to avoid admission of
fabricated evidence—is not present here. There is no evidence that the witnesses concocted
these powerful third-party statements of guilt for defendant’s benefit, nor of a motive for
(compare with People v Shortridge, 65 NY2d 309 [1985]). The witnesses are a variety of
ages, occupations, and levels of closeness to the three declarants. The incriminating
statements themselves are also varied. At times, the declarants explained what had
occurred. For example, an old friend of Steen’s testified that Steen mentioned his van was
“the one that hauled [the actual van that was used in (the victim’s) kidnapping] to Canada
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and had it scrapped,” and Braley testified that Breckenridge declared “he took that bitch to
the scrap yard in the van, they had it crushed, and that she was shipped to Canada.” Other
times, the statements were made as a blatant commentary that the declarant was immune
to prosecution because the victim would never be found and the wrong persons—the
Thibodeau brothers—were blamed for the crime. Among such comments, someone for
whom Steen used to work testified that Steen said, “I know more about this . . . case than
the Oswego County Sheriff’s (sic), they got the wrong guys,” and that “[t]hey got the
Thibodeaus in there, and the Thibodeau boys didn’t do it,” while one of Breckenridge’s
relatives testified Breckenridge added, “the bitch ain’t going to be found,” “[i]t’s a waste
of government’s time to be finding her.” Bohrer, Steen, and Breckenridge each “stood to
benefit nothing by disclosing his role in the” crime (see Chambers, 410 US at 301).
that the various statements connected these declarants and pronounced their guilt of
abducting the victim, her murder, and the subsequent cover up. Far from suggesting
overlapping statements also lends further support for their admission, and the majority’s
assertion that the aggregate of statements is irrelevant is contrary to United States Supreme
Court precedent (see maj op at 9). In Chambers, the Court recognized that quantity matters:
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each” (410 US at 300). The corroboration is even stronger in defendant’s case. The
(id. at 490), whereas here defendant presented evidence of over ten independent
confessions.7
The hearing court also improperly factored into its admissibility determination its
own conclusion that the statements were false. This was error, as this Court has held that
a court’s belief regarding a statement’s veracity is irrelevant (see DiPippo, 27 NY3d at 137,
quoting Settles, 46 NY2d at 170). Instead, the court is tasked solely with deciding whether
defendant has met the minimum threshold of establishing a reasonable possibility of the
statement’s truth. Once that burden is met, the veracity of the statement is a question for
the jury. As we reaffirmed in Soto, “it is the function of the jury alone to determine whether
the declaration is sufficient to create a reasonable doubt of guilt” (26 NY3d at 462; cf
People v Shabazz, 22 NY3d 896, 898 [2013] [“(w)e conclude that the courts below erred
by focusing on the inconsistency between the (declarant’s) trial testimony and her pretrial
7
Chambers presented a similar case to this one. At his murder trial, defendant Leon
Chambers introduced Gable McDonald’s sworn statement confessing to shooting the
victim, along with two eyewitnesses to McDonald’s involvement. On cross examination
by the State, McDonald repudiated his confession and testified that he did not shoot the
victim. Chambers endeavored to introduce testimony of three of McDonald’s friends, who
each stated that McDonald had confessed the crime to them. The trial court excluded the
testimony on hearsay grounds. The Supreme Court held that “[t]he testimony rejected by
the trial court here bore persuasive assurances of trustworthiness and thus was well within
the basic rationale of the exception for declarations against interest,” and “[t]hat testimony
also was critical to Chambers’ defense” (Chambers, 410 US at 301). Therefore, in
excluding the confessions, the trial court had “denied [Chambers] a trial in accord with
traditional and fundamental standards of due process” (id.).
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statement . . . . later recantations generally affect the weight and credibility that a factfinder
According to the majority, record support exists for the conclusion that “certain
witnesses . . . were simply not credible” (maj op at 9). As noted above, however, the only
question properly before the hearing court was whether the admissible evidence was “of
such a character as to create a probability” that a jury would render a more favorable verdict
(see CPL 440.10 [1] [g]). To the extent County Court determined that these statements
were in fact false, it went beyond the scope of the hearing; to the extent it determined that
a trier of fact could not reasonably find these witnesses credible as a matter of law, its
reasoning was unsound and constituted an abuse of discretion. The majority’s singular
focus on County Court’s “factual” credibility findings misses the point and harkens back
to People v Crimmins (38 NY 407 [1975]). This Court roundly repudiated Crimmins’
“‘hands-off’ approach” only a few years ago, as it “needlessly restricted this Court’s power
of review concerning CPL 440.10 (1) (g) motions” (Jones, 24 NY3d at 627-631).
Careful examination of the testimony establishes that the court often had no rational
basis for its conclusion that the witnesses were rendered incredible as a matter of law by
defendant sought to introduce Priest’s description of how Steen had told her in 2006 that
he, Bohrer, and Breckenridge brought the victim to Breckenridge’s house on Rice Road,
beat her to death, cut up her body and hid it in a cabin, and burned her clothing in the
cabin’s wood stove. Steen described the cabin as being deep in the woods, at the edge of
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a clearing, and past railroad tracks. The court dismissed this testimony because, the court
noted, the only cabin on Rice Road found by investigators was not near any railroad tracks
and did not contain a wood stove. Nevertheless, there was a “collapsed” cabin at the
address, which, according Wescott’s directions to the police, is located down the road from
railroad tracks. Further, investigators reported the cabin appeared to have been “sifted
through,” and three cadaver dogs indicated there for the scent of human remains.8
testimony—that Breckenridge told him, “[w]e chopped her up, we put her in a wood stove
and put her in a vehicle and sent her to Canada”—on the basis that Combes did not believe
statement itself, not the witness’ personal beliefs about that statement. As this Court has
made clear, it is for the jury to decide what weight, if any to accord, the statement and to
what extent the evidence informs the jury’s determination of defendant’s guilt (see e.g.
8
The majority adopts the hearing court’s credibility analysis of Priest, in part because Priest
was not called by the defense to testify at the hearing (maj op at 9). The majority ignores
that, during the proceedings regarding admission of the affidavit, defense counsel
explained that they believed Priest’s testimony was unnecessary given her sworn statement
and wanted to avoid subjecting Priest to additional harassment. This concern was not
unfounded. According to Wescott, Priest moved with her children to Michigan because
she was afraid of her ex-husband. The hearing court considered the issue and admitted
Priest’s affidavit into evidence. Of course, defendant would have to present Priest at trial
(see DiPippo, 27 NY3d at 138 [discussing that an affidavit containing third-party
culpability evidence is sufficient in an admissibility hearing on the understanding that the
witness will be made available at trial]).
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Settles, 46 NY2d at 170 [“it is the function of the jury alone to determine whether the
III.
Defendant met his burden of showing by the preponderance of the evidence that
probability” of a verdict “more favorable to the defendant” (see CPL 440.10 [1] [g]). It is
also noteworthy that the People’s trial evidence was not overwhelming. No physical or
testimonial evidence at trial placed defendant at the store at the time the victim disappeared,
and no forensic evidence was found at defendant’s home or in Richard’s van linking
defendant to the victim.10 It is difficult to imagine these statements would not have “added
a little more doubt to the jury’s view of the evidence” (People v Negron, 26 NY3d 262,
270 [2015]), such that there would have been enough uncertainty as to defendant’s guilt to
9
The majority quotes Judge Cardozo’s concurrence in People v Shilitano (see maj op at
10), to suggest that a hearing court judge is at liberty to deny a motion based solely on the
judge’s credibility decisions, regardless of the evidence presented, and an appellate court
is without authority to consider the correctness of the judge’s decision. That is not the law
(see e.g. Soto, 26 NY3d at 462; Settles, 46 NY2d at 170). Curiously, while acknowledging
our power of appellate review, the majority has chosen as support a case with no relevance
here as it involves standards only applicable in capital cases.
10
The majority complains that I have engaged in a de novo and skewed analysis of the
weight of the evidence at both the trial and the hearing in favor of defendant (maj op at 9).
Putting aside the majority’s hyperbole, I have done exactly what we are authorized and
required to do: “exercising our power to determine whether in a particular judgmental and
factual setting there has been an abuse of discretion as a matter of law” (Jones, 24 NY3d
at 631 [quotation marks and citation omitted]). “[W]e are not passing on facts as such, but
rather considering them to the extent that they are a foundation for the application of law”
(id.). In short, I have subjected this evidence to our well-established legal standards.
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tip the scales in his favor. Thus, the hearing court’s denial of defendant’s CPL 440.10 (1)
(g) motion “constituted an abuse of discretion as a matter of law” (see Jones, 24 NY3d at
630). Defendant is entitled to present this newly discovered evidence to a jury. I dissent.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges Stein, Fahey and
Garcia concur. Judge Rivera dissents in an opinion in which Judges Wilson and Feinman
concur.
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