COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU THE PEOPLE OF THE STATE OF NEW YORK

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- againstWILLIAM FLANAGAN, JOHN HUNTER, and ALAN SHARPE, Defendants.

NOTICE OF MOTION Indictment No.: 338N12

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PLEASE TAKE NOTICE, that upon the annexed affirmation of Bruce A. Barket, an attorney duly admitted to practice law in the State of New York, the attached memorandum of law, the annexed exhibits and the prior proceedings herein, the undersigned will move this Court at a date and time set by this court for counsel to be heard, for an order: 1. Dismissing the indictment as facially insufficient pursuant to N. Y. Criminal Procedure Law §§ 210.20(l)(a), 210.25(1), and 200.50(7)(a);

2. Granting a full inspection of the grand jury minutes by the Court and defense counsel, pursuant to N. Y. Criminal Procedure Law §§ 210.30 (1) and (2). U.S. Const., Amends. VI, )(IV; N.Y. Const., Art. I, Sec. VI; C.P.L. §210.30; 3. Dismissing the indictment, pursuant to N. Y. Criminal Procedure Law §§ 210.20 (1)(b) and 210.30(1) and (2), on the ground that the evidence presented to the grand jury was legally insufficient to support the charges contained in the indictment, or, in the alternative, reducing, pursuant to N. Y. Criminal Procedure Law § 210.20 (I-a), the charges contained in the indictment to lesser included

offenses, in the event that the evidence presented to the grand jury was not legally sufficient to establish the greater charges but sufficed to establish those lesser included offenses; 4. Dismissing the indictment, pursuant to N. Y. Criminal Procedure Law §§ 210.20 (l)(c) and 210.35 (5), on the ground that the prosecution failed adequately to fulfill its role as legal adviser to the 1

grand jury, and the rules of evidence were incorrectly applied, and that material exculpatory evidence was withheld from the grand jury such that the proceeding failed to conform to the requirements of article 190 to such an extent that its integrity was impaired and prejudice was caused to the defendant, whose state and federal due process rights were thereby also violated. U.S. Const., Amends. V, VI,

XN; N.Y. Const., Art. I, Sec. VI;
5. Severing his case from that of his codefendants, pursuant to Bruton v. United States. 391 U.S. 123, 88 S.Ct. 1620,20 L.Ed.2d 476) and People v. Wheeler, 62 N.Y.2d 867, 869,466 N.E.2d 846, 847 (1984). U.S. Const., Amend. VI. 6. Reserving to defendant the right to make additional motions as necessary; 7. Granting such other and further relief as this court deems just and proper. Dated: Garden City, New York May, 15,2012 Respectfully submitted, BARKET, MARION, EPSTEIN & KEARON, LLP

By:

B~

Counsel for the Defendant 666 Old Country Road, 7th Floor Garden City, NY 11530 (516) 745-1500

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COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU

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THE PEOPLE OF THE STATE OF NEW YORK

- againstWILLIAM FLANAGAN, JOHN HUNTER, and ALAN SHARPE, Defendants.

AFFIRMATION Indictment No.: 338N12

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BRUCE A. BARKET, an attorney duly admitted to practice law in the State of New York, affirms under penalty of perjury that: 1. I am the attorney of record for the defendant, WILLIAM FLANAGAN. I am familiar with the facts of this case and make this affirmation in support of defendant's motion and for such other relief as may be appropriate. 2. Unless otherwise specified, all allegations of fact are made on information and belief and are based upon inspection of the record of this case, conversations with Assistant District Attorneys and the defendant, and counsel's own investigation. 3. The defendant is charged in four counts of a ten-count indictment with one felony and three misdemeanors, specifically, in descending order of gravity, Count Two, Receiving Reward for Official Misconduct in the Second Degree, in violation of PL 200.25, an E felony; Misconduct, Misconduct, in violation of NY PL §195.00(2), an A misdemeanor; Count Five, Official Count Eight, Official

in violation of NY PL §195.00(1), an A misdemeanor; and, Count One, Conspiracy in the

Sixth degree, in violation ofPL 105.00, a B misdemeanor 4. The defendant was arrested on March 1,2012, and was arraigned on the same day. 5. The indictment suffers from a variety of fatal defects, including facial insufficiency of the allegations, multiplicity and duplicity. Further, evidence submitted to the grand jury was legally

1

insufficient to establish the charged offenses. Moreover, material exculpatory evidence was withheld from the grand jury, evidence that directly and conclusively negated facts that are indispensable to this prosecution, thus grossly impairing the integrity of the grand jury process. Further, under the false testimony was offered to the grand jury. These latter two circumstances violation under both the New York and the United States constitutions. dismissed in its entirety. 6. It is important to note that Counts Five and Eight - official misconduct under two different statutory theories contain the legal and factual predicates for Counts One and Two, conspiracy and If the conduct alleged in Counts Five and Eight was amount to a due process The indictment should be

receiving a reward for misconduct, respectively.

not criminal conduct, then, necessarily, it was not criminal to "conspire" to engage in that conduct, and it was not criminal under the charged section to receive a reward for engaging in that conduct, even if all alleged facts are true. Thus, if Counts Five and Eight are stricken, Counts One and Two must fall. I. MOTION TO DISMISS FOR FACIAL INSUFFICIENCY 7. The defendant respectfully moves this Court for dismissal of the indictment for facial insufficiency pursuant to C.P.L. §§ 210.20(1)(a), 8. Pursuant to C.P.L. §§ 210.25(1), 210.25(1), and 200.50(7)(a). an indictment or count is defective if it does not

substantially conform to the requirements set forth in C.P.L. Article 200. Such a defective accusatory instrument must be dismissed pursuant to C.P.L. § 210.20(1)(a). 9. Facial sufficiency and validity of an accusatory instrument is a non-waivable, jurisdictional prerequisite to a valid prosecution. See, People v. Harper, 37 N.Y2d 96, 99, 332 N.E.2d 336, 337 (1975). 10. An indictment serves three purposes: First, [it] provides the defendant with fair notice of the accusations made against him to enable him to prepare a defense. Second, it insures that the crime for which defendant is tried is the same as intended by the Grand 2

Jury, and thus prevents the court or prosecutor from usurping the Grand Jury's powers. Finally, the indictment protects against double jeopardy by specifying the particular crime for which a defendant has been tried. People v. Charles, 61 N.Y.2d 321,326-27,462 N.E.2d 118, 120 (1984)

11. In order to be facially sufficient, an indictment must contain, among else: A plain and concise factual statement in each count which, without allegations of an evidentiary nature, ...asserts facts supporting every element of the offense charged and the defendant's ....commission thereof with sufficient precision to clearly apprise the defendant ...of the conduct which is the subject of the accusation. N.Y. Crim. Proc. Law § 200.50(7)(a) 12. In this case, the instrument before the Court should be dismissed in its entirety because each count is facially insufficient and, hence, jurisdictionally defective. 13. As explained in the attached memorandum of law, Counts One, Two, Five and Eight - that
IS,

all the Counts against this defendant - "do[] not effectively charge the defendant with the

commission of a crime", because the conduct [they] alleges, even if true, do[] not subject him to criminal liability under the statute. People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (N.Y., 1977; People v. Iannone 45 N.Y.2d 589,600,384 118 (N.Y., 1978). 14. Further, as explained in the attached memorandum of law, Counts One and Five are N.E.2d 656,664,412 N.Y.S.2d 110, 117 -

duplicitous, as each charges more than one offense, and must be dismissed pursuant to New York Criminal Procedure Law §§ 210.20(a), 210.25(1), and 200.30. 15. Finally, as explained in the attached memorandum oflaw, Count Five is bad for multiplicity with Count Eight, and should be dismissed pursuant to New York Criminal Procedure Law §§ 210.20(a), 210.25(1), and 200.20(1) in that it does not charge an "other offense" than Count Eight. II. MOTION TO INSPECT THE GRAND JURY MINUTES 16. The Court of Appeals has stated: 3

The Grand Jury acts as the shield of innocence and as the guard of the liberties of the people against the encroachments of unfounded accusations from any source. The statutory remedy of dismissal ... not only protects the defendant but also safeguards the liberty of all citizens by ensuring that improper prosecutorial influence during secret Grand Jury proceedings will not lead to unfounded prosecutions. People v. Huston, 88 N.Y.2d 400 quoting, People v. Minet, 296 N.Y. 315). 17. The defendant respectfully moves this Court for an inspection of the grand jury minutes To the extent that this Court is unwilling to grant in full defendant's

pursuant to C.P.L. §210.30.

pending applications to dismiss the counts of the indictment based upon the Court's own inspection of the minutes, the defense requests that the Court release the minutes, in their entirety, to defense counsel, so that counsel may effectively analyze whether colorable dismissal issues exist and, to the extent that they do, effectively present written and oral argument in support thereof. In the alternative defense counsel requests a partial inspection of relevant portions, including all applicable legal instructions, absent a particularized showing by the prosecution of a reason to deny inspection (U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, Sec. VL). 18. It is respectfully submitted that this case presents features which compellingly militate for release of the minutes to the defense. The inspection and analysis required here goes beyond merely a routine ascertaining of whether evidence sufficient to support the charges was adduced. The charges, particularly the conspiracy charge, involve a quite complex array of factual allegations spanning quite a few months, and multiple persons. More importantly, they also implicate complex evidentiary

questions, especially regarding the propriety of hearsay evidence presented to the grand jury in support of the conspiracy charge. This case involves allegations that are facially dubious, to say the least,

against trusted public servants over conduct that was seemingly no more nefarious than that a handful of police officials acted with discretionary prudence, forbearance and mercy toward a high school student. Specifically, as to Mr. Flanagan, the sole overt act he is even accused of is arranging the return
4

of stolen property to its owner. This is a quintessentially non-criminal act. Finally, as will be seen below, information uncovered within the past several days by the attorney for Alan Sharpe reveals that material exculpatory evidence was withheld from the grand jury, evidence which compellingly

establishes the exact opposite of specific allegations in the indictment. The grand jury heard false
testimony on a material issue. The defense respectfully submits that this Court should conclude that it "needs informed adversarial submissions from both sides," Attorney Gen. of State of N.Y. v. Firetog, 94 N.Y.2d 477, 482, 727 N.E.2d 1220, 1222 (2000), to assist the Court in making its determination as to the legal sufficiency of the grand jury evidence. 19. To the extent that concerns for the privacy or safety of witnesses are presented, the defense is willing to accede to an inspection of the minutes by counsel alone, subject to any appropriate orders restricting disclosure of the minutes to the defendant personally. 20. In the alternative, and to the extent that this Court does not order full disclosure of the grand jury minutes, defendant requests an order directing that a sealed copy of the minutes, or undisclosed portions thereof, be retained as a court exhibit for inclusion in the record on appeal from any prospective judgment of conviction. The defense is entitled as a matter of law to such an order,

since it is necessary to fully effectuate defendant's right to appeal, as guaranteed by State statutory law; the Due Process Clause of N.Y. Const., Art., I, Sec. VI; and the Equal Protection Clauses of the State and Federal Constitutions. III. MOTION TO DISMISS OR REDUCE COUNTS OF THE INDICTMENT BECAUSE THE COUNTS ARE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE 21. The defendant moves this Court, upon the Court's inspection of the grand jury minutes, as requested above, for an order dismissing the indictment, or in the alternative, dismissing or reducing counts therein, pursuant to C.P.L. §210.20(1)(b), on the grounds that the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense.

5

22. As the Court is aware, this inquiry "is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of each element of the charged crimes and whether the grand jury could rationally have drawn the inference of guilty" (emphasis added) (See, People v. Boampong, 57 A.D.3d 794, 795, 869 N.YS.2d 586, 587 (2008); People v. Bello. 92 N.Y.2d 523,526,683 N.Y.S.2d 168, 705 N.E.2d 1209). 23. As explained further in the attached memorandum of law, even without the benefit of

having reviewed the grand jury minutes, the defense has strong reason to believe that insufficient competent evidence was adduced to establish a prima facie case against this defendant as to any of the charged offenses. Minimally, the entire body of the accusations against Mr. Flanagan, in order to be valid, presuppose that he had an affirmative duty to either see to the arrest of the high school boy suspected of stealing the computer equipment, or, at the least, an affirmative duty to refrain from acting in any way to attempt or encourage the resolution of the matter other than by arrest. Since it is readily ascertainable that no such duties devolved upon him as Deputy Police Commissioner, or indeed, in his capacity as any member of the Nassau County Police Department, it is therefore impossible that competent evidence could have been adduced to support this essential factual and legal predicate. 24. Further, as will be seen below in the motion alleging an impaired grand jury process, highly exculpatory emails, never seen by the grand jury, have been uncovered by the defense investigation, which directly negate the claim that the defendant was acting in opposition to the will of the victims of the burglary. (Attached as Exhibit A) Abstracting from the significance of the failure to present the emails to the grand jury, the defense asserts that the existence of these emails fatally weakens any inculpatory evidence that might have come before the grand jury, since the emails, standing alone, would have given rise to a reasonable belief on the part of anyone aware of them that the school had asked the police NOT to arrest Zachary Parker. 25. As is also further explained in the attached memorandum of law, in the event the Court
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finds insufficient legal evidence to support the charged offenses, the entire indictment will have to be dismissed, as there exists no lesser included offenses to any of the charged crimes.
IV. MOTION TO DISMISS OR REDUCE COUNTS OF THE INDICTMENT BECAUSE THE GRAND JURY PROCEEDING WAS PROCEDURALLY DEFECTIVE

26. The defendant moves this Court, upon the court's inspection of the grand jury minutes, as is requested, for an order dismissing the indictment, or in the alternative, dismissing or reducing counts therein, pursuant to C.P.L. §210.20(1)(c), on the ground that the grand jury proceeding was defective within the meaning of C.P.L. §210.35 (C.P.L. §210.20(1)( c ) on one or more of the following grounds: a. b. §210.35(1)); c. §210.35(3)); d. the proceeding otherwise failed to conform to the requirements of Criminal fewer than twelve grand jurors concurred in the finding of the indictment; (C.P.L. the grand jury was illegally constituted (C.P.L. §210.35(1)); the proceeding was conducted before fewer than sixteen grand jurors (C.P.L.

Procedure Law, Section 190, other applicable State law, and the State and federal constitutions to such degree that the integrity thereof was impaired, and prejudice to defendant might have resulted (C.P.L. §210.35(5)); defaults in the conformity of the proceedings include but are not limited to:
1.

the violation by the prosecutor of the applicable constitutional, statutory,

and common-law rules of evidence, including the applicable rules against hearsay (see (C.P.L. §190.30);
11.

the presentation of deficient or erroneous instructions on the law and the

weight of the evidence to the grand jury, including but not limited to the incorporating by reference of instructions given to this grand jury regarding the same crime in the course of an earlier presentation

7

(People v. Brown, 81 N.Y.2d 798 (1993); C.P.L.§190.25(6)).
111.

the failure of the prosecutor to present exculpatory evidence that the

People knew or should have known existed;
IV.

the presentation of improper and extraneous material to the grand jury; the utilization by the prosecutor of the grand jury as a discovery device to

v. prepare for trial; and;
VI.

the improper cross-examination of the defendant andlor other defense

witnesses by the prosecutor. 27. "No person shall be held to answer for a capital or otherwise infamous crime unless on

indictment of a grand jury" (N.Y. Const., art. I, § 6; see also, CPL art. 190). The Grand Jury shields against prosecutorial excesses and protects individuals from unfounded prosecutions. Historically, the Grand Jury has performed the essential function of investigating criminal activity to determine whether sufficient evidence exists to accuse a citizen of a crime. The Criminal Procedure Law designates both the District Attorney and the court as legal advisors to the Grand Jury. Because Grand Jury proceedings are conducted by the prosecutor alone, this function confers upon the prosecutor broad powers and duties, as well as wide discretion in presenting the People's case. In addition to providing legal instruction to the Grand Jury, the District Attorney determines what evidence to present to that body and what evidence should be excluded. The prosecutor's discretion during Grand Jury proceedings, however, is not absolute. As legal advisor to the Grand jury, the prosecutor performs dual functions: that of public officer and that of advocate. The prosecutor is thus charged with the duty not only to secure indictments but also to see that justice is done. With this potent authority, moreover, comes responsibility, including the prosecutor's duty of fair dealing. As this Court has explained, these duties and powers, bestowed upon the District Attorney by law, vest that official with substantial control over the Grand Jury proceedings, requiring the exercise of completely impartial judgment and discretion.
(People v. Huston, 88 N.Y.2d 400 (citations and internal quotations omitted)).

28. A Grand Jury proceeding is defective when "prejudice to the defendant may result" (CPL 210.35(5)).
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29.

A prosecutor shall not engage in conduct which usurps the function of the Grand Jury.

Thus, a prosecutor shall not engage in tactics to influence a witness' Grand Jury testimony (Id., citing People v. Sayavong, 83 N.Y.2d 702), shall not engage in "practice that might incline a witness to give an inaccurate account of her knowledge of a crime" (Id., citing People v. Minet, 296 N.Y. 315), shall not vouch for the reliability of a witness and shall not become an unsworn witness against the defendant "creating the danger that the Grand Jury, 'impressed by the prestige of the office of the District attorney, [would] accord great weight to [his] beliefs and opinions' " (Id. quoting People v. Paperno, 54 N.Y.2d 294). 30. It is with these principles in mind that the defendant requests this Court's inspections of the Grand Jury minutes. 31. Although the defense requests that the Court examine the minutes for any and all of these potential defects, the defense respectfully asks that the Court scrutinize with special care those parts of the minutes encompassing testimony which purported to establish the allegations contained in

Paragraph 2 of the "overt acts" section of Count One in the Indictment. Paragraph 2 reads as follows: On or about May 21, 2009, an unindicted co-conspirator met with the administrator from JFK High School who had reported the theft to the police to discuss the theft of the electronic equipment and explored the school administrator's willingness to withdraw the criminal complaint. During the interview, the school administrator told the unindicted coconspirator that she would not consider the withdrawal of criminal charges against the target. Indictment, pp. 2-3, ~2. 32. This allegation is absolutely essential to the viability of the indictment. If the school

administrator had been willing to withdraw, or fail to pursue, criminal charges against Zachary Parker, or had been willing to engage in discussions or negotiations about the matter, then clearly no police officials engaged in anything remotely like misconduct. 33. While this motion was being prepared, counsel for Detective Sharpe, a co-defendant in this 9

case, subpoenaed from the school district the three emails attached hereto as EXHIBIT A, which were not provided by the prosecution to the defense in discovery. Counsel for Detective Sharpe, a co-

defendant in this case, subpoenaed them from the school district. The emails directly contradict the allegations in ~2 of the indictment, and reveal no intransigence about withdrawing the complaint, but rather that the interested parties were weighing their options, and strongly imply that they were at least evenly inclined toward leniency. 34. The first email was written on Friday, May 22, 2009 at 5:52 pm from Lorraine Poppe, principal of JFK High School, to Henry Kiernan, the school superintendent. In it, Ms. Poppe tells the superintendent that she has met with the police and that she has "asked them to put everything on hold" while Zachary's father determined whether more of the equipment was still in his son's possession. She indicates that she is hopeful that more can be recovered, and goes on to tell her colleague that they "need to discuss possible arrest, suspension, whether we want Zach back in school for the remainder of the year, etc. The police are not going to do anything until we talk." (emphasis added throughout) 35. Several minutes later, at 6:04 pm on May 22,2009, Ms. Poppe emailed Detective Coffey at his police department email address. Coffey is the unindicted co-conspirator referenced in ~2 of the indictment, whom she had allegedly told, on or about the previous day, that she "would not consider withdrawal of the criminal charges". But her email to Detective Coffey reveals no such thing, nor does it imply that she is writing to tell him she has changed her mind and is now relenting. Speaking with evident sympathy for the boy and his father, she merely tells Detective Coffey that she has "to speak with the Superintendent about whether we want Zach arrested or whether we are going to give him a long-term suspension (etc.) if everything is returned. We are also going to mandate counseling. The father is devastated - as we knew ..." 36. Henry Kiernan replied to Ms. Poppe's email somethreeandahalfhoursafteritwassent.at 9:36 p.m. on May 22. He also speaks with evident sympathy even for the perpetrator ("fortunately, 10

Zach told the truth ...") and indicates that they will have to discuss the consequences to Zach further on the following Tuesday, but that, for the moment, minimally Zach will be given a five-day suspension and a Superintendent's Hearing will be called "to go for a more fitting punishment". 37. Clearly, the police were told by school officials that they were unsure about whether or not they wanted to press charges. This compelling documentary evidence is squarely in contradiction to the contents of ~2, and reveals the police "non-arrest" of Zach Parker to have been - at least at that time at the behest of the school officials, negating an essential factual predicate for any of the charged offenses. 38. These emails strike at the very heart of the prosecution's case and reveal that the integrity of the grand jury was impaired in two extremely serious ways, both of which mandate dismissal of the indictment as in violation of CPL 210.35(5), and both of which rise to the level of violations of Mr. Flanagan's rights to due process under both the state and federal constitutions. A. THE PROSECUTION WAS OBLIGED TO PRESENT THE EMAILS TO THE GRAND JURY 39. Firstly, the emails constitute critical exculpatory evidence of exactly the sort which New York Courts uniformly agree must be revealed to grand juries, if the indictment is to stand. 40. "Exculpatory evidence is such that, if it is believed, will result in a finding of no criminal liability." People v. Ramos, 35 Misc. 3d 1206(A) (N.Y. Sup. Ct. 2012) While it is almost axiomatic

that the prosecutor need not present the grand jury with every piece of evidence that may be consistent with the innocence of the suspect, the "inherently one-sided nature of grand jury proceedings and ...their potential for abuse", People v. Lincoln, 159 Misc. 2d 242, 245-46, 603 N.Y.S.2d 974, 976 (Sup. Ct. 1993), impose on the prosecutor a serious "duty of fair dealing to the accused and candor to the courts."

People v. Lancaster, 69 N.Y.2d 20,26, 511 N.Y.S.2d 559, 503 N.E.2d 990, quoting, People v. Pelchat,
62 N.Y.2d 97, 105,476 N.Y.S.2d 79, 464 N.E.2d 447). "It goes without saying that this duty also rests

11

upon the prosecutor during pretrial proceedings." People v. Pelchat, 62 N.Y.2d 97, 105-07,464 N.E.2d 447,451-52 (1984). Thus, [W]here there exists exculpatory evidence that might obviate a prosecution altogether, as to "materially influence" the Grand Jury investigation and/or cause the Grand Jury to change its findings (see, People v. Holmes, 118 AD.2d 869,500 N.Y.S.2d 355 [2d Dept. 1986] and People v. Thompson, 108 AD.2d 942, 485 N.Y.S.2d 835 [2d Dept.1985]), is it the duty of the prosecutor to present such evidence to the Grand Jury or make it available to the defense for use in the Grand Jury. See, People v. Mitchell, supra, at 514, 605 N.Y.S.2d 655, 626 N.E.2d 630 (1993) citing People v. Lancaster, supra, at 27, 511 N.Y.S.2d 559, 503 N.E.2d 990 and People v. Valles, 62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d 418 (1984); see also, People v. Bower, 222 AD.2d 516,635 N.Y.S.2d 79 (2d Dept. 1995). People v. Sawyer, 8949/01,2002 WL 655273 (N.Y. Sup. Ct. Mar. 21, 2002) 41. The standard for evaluating a Brady-type claim in the context of a grand jury presentment is straightforward: In determining whether exculpatory material should be presented to the grand jury, one should ask whether the exculpatory matter is so important as to materially influence the grand jury investigation. Would the introduction of the Brady material " ... possibly cause the Grand Jury to change its findings?" People v. Filis, supra at 1069, 386 N.Y.S.2d 988. If the answer is yes, then such evidence should be brought before the Grand Jury, in order that a fair assessment of the prosecutor's case occur. People v. Monroe, 125 Misc. 2d 550, 558-59, 480 N.Y.S.2d 259,266 (Sup. Ct. 1984)(emphasis in original) 42. Notably, "[i]t is not a question of whether the result 'would' be different but whether such evidence could 'possibly cause the Grand Jury to change its findings" People v. Scott, 150 Misc. 2d

297,298, 568 N.Y.S.2d 857, 858 (Sup. Ct. 1991), quoting, People v. Filis, 87 Misc.2d 1067, 1069,386 N.Y.S.2d 988. (letter signed by victim stating that she had made a mistake in identifying defendant in the lineup should have been presented to the grand jury.) 43. Federal courts say it even more clearly: "A prosecutor has a duty to present to a grand jury

12

evidence which clearly negates guilt." United States v. Olin Corp., 465 F. Supp. 1120, 1127-28 (W.D.N.Y. 1979), citing, United States v. Phillips Petroleum Co., 435 F.Supp. 610 (N.D.Okl.1977); United States v. Mandel, 415 F.Supp. 1033 (D.Md.1976). 44. Here, the emails among Lorraine Poppe, Henry Kiernan and Detective Coffey are of the highest possible materiality, in that they directly address an indispensable factual predicate for any criminal liability on the part of the accused. The entire case turns on the People's ability to prove that the police conduct or lack of conduct was against the will of the victims of Zach Parker's burglary. These emails, to say the least, imply that the opposite was true: the police were acting or not acting pursuant to the will of the school officials. They minimally suggest that the entire question was, by mutual agreement, up for negotiation involving school officials, the police and the Zach Parker's father. There is not merely the possibility that the grand jury would have changed its findings had it seen these emails, but a virtual certainty. 45. The withholding of this information from the grand jury not only reveals a defective grand jury process under the CPL, but prejudiced the defendant deeply in that he could not have been indicted had this evidence been presented to the grand jury, and as such, amounts to a due process violation under both the state and federal constitutions. See, People v. Pelchat, 62 N.Y.2d 97, 105-07 for due process implications of defective evidence in the grand jury. B. THE EMAILS REVEAL THAT FALSE MATERIAL TESTIMONY UNDERLIES THIS INDICTMENT 46. As a corollary to the withholding of exculpatory evidence, the fact that ~2 in the indictment was found by the grand jury necessarily implies that false material evidence was presented to them on the critical question of what happened in the meeting between school officials and Detective Coffey on May 21, 2009, and what was the school's stance regarding the arrest - or not - of young Zach Parker. To find that on May 21, 2009, Ms. Poppe told Detective Coffey "that she would not consider the 13

withdrawal of criminal charges", the jury must have heard testimony to that effect, testimony which was false. 47. Because the school's stance regarding arrest is of foundational importance to the

indictment, the false testimony was extremely prejudicial to the defendant, in that he could not have been indicted without it, and as such is not only a violation of the CPL, but also rises to the level of a state and federal due process violation. See, People v. Pelchat, 62 N.Y.2d 97, 105-07; United States v. Basurto, 497 F.2d 781, 785-786 (9th Cir., 1974)
C. KNOWLEDGE OF THE EMAILS AND THE COROLLARY IMPUTABLE TO THE PROSECUTION FALSE TESTIMONY IS

48. The attached emails, as noted above, were not provided in discovery. The prosecution has represented to the undersigned that their office was unaware of the existence of the emails until Detective Sharpe's lawyer subpoenaed them. 49. The investigation into the charged offenses appears to have been vast, generating

thousands of pages of documents and emails just in the discovery received by the defense so far. Clearly, the prosecution left no stone unturned in seeking evidence against Mr. Flanagan, delving into a myriad of obscure and irrelevant peripheral details of the driving history of Zach Parker, and the relationship between the defendants and Mr. Parker predating and postdating the events under discussion. Yet apparently no one in the District Attorney's office ever thought to ask the putative victim - the school - or even their star witness, Detective Coffey, to tum over their email correspondence on the very heart and core of the allegations. Notably, the emails were not discovered by the defense pursuant to any unique or subtle investigative technique but by the simple expedient of a routine subpoena to the school district. 50. While the defense appreciates the District Attorney's representation to counsel that they were unaware of the existence of the emails prior to the indictment, that is not a sufficient basis on

14

which this Court can make a finding to that effect, particularly in light of the astonishing volume of discovery generated by this investigation into allegations of - mostly - misdemeanors. The defense believes that the Court should oblige the People to document to the Court how it is that they were able to gather such vast quantities of documentary evidence, yet significant exculpatory evidence generated by central actors eluded them, despite being there for the asking. 51. Further, in its scrutiny of the grand jury process, the Court should carefully explore not only the minutes of the proceeding, but also the discovery process attendant on it, particularly in two areas. 52. First, the Court should examine all subpoenas and requests for subpoenas for documentary evidence, including emails, generated by the grand jury proceeding, and the returns thereon. 53. Secondly, the Court should examine the voluntary production of emails by the Nassau County Police Department, which required no subpoenas. The Police Department turned over a large volume of emails relating to the defendants, many of which only remotely relate to the case at bar. It would be an odd circumstance if the Department withheld just the email received by the "unindicted co-conspirator" which happened to go right to the very heart of the case, and which was exculpatory to the defendants. 54. Ignorance of the existence of this evidence, in any event, does not absolve the District Attorney's office from responsibility for its absence from the grand jury room, nor the presence of the corollary false evidence underlying ~2 of the indictment. 55. In the first place, after an exhaustive and very thoughtful analysis of the extant case law across the federal and state spectrum nationwide, People v. Llewelyn, 136 Misc. 2d 525, 518 N.YS.2d 881 (Sup. Ct. 1987) dismissed an indictment on due process grounds where the exact question at bar was, "whether to dismiss an indictment based partially on false evidence, the falsity of which was unbeknownst to the district attorney at the time of its presentation, Id., at 533. 56. Secondly, knowledge of the exculpatory evidence and false testimony is in any case all 15

imputable to the prosecution, which therefore had at least constructive knowledge of these matters. 57. Detective Coffey was necessarily aware of the school's position on May 22,2009, because he received the email, on his official work email address, from Ms. Poppe clearly articulating that position, which was that the school was not then demanding an arrest. This was not presented as any sort of change from what the position had been when they met in person the previous day, the day discussed in ~2 of the indictment. 58. It is well settled that, when it comes to "material which has some bearing on the case against the defendant", People v. Vasquez, 214 A.D.2d 93, 100, 631 N.Y.S.2d 322, 326 (1995)

nondisclosure by police officials is imputable to the prosecution: The concept of the prosecution as an entity has been extended to include the law enforcement personnel who participate with the attorneys for the state in the prosecution. Thus in Barbee v. Warden, 331 F.2d 842, 846 [4th Cir.] it was stated: The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nondisclosure ... The duty to disclose is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused (citations omitted). The law in this State is no different (see, People v. Russo, 109 A.D.2d 855, 856,486 N.Y.S.2d 769 and People v. Clausell, 182 A.D.2d 132,587 N.Y.S.2d 672 lv. denied 81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396). Vasquez, at 99-100. 59. Detective Coffey was the prosecution's star witness, and a police official. He knew

firsthand that the school had indicated on May 21, 2009, and the following day, that it was not militating for an arrest of Zach Parker, but rather beginning discussions on the matter. He should have revealed this to the grand jury, and, evidently he did not, since the District Attorney's office has represented that it was unaware of the emails at the time of the grand jury presentment, and since the grand jury could never have come up with ~2 if it he had revealed it to them. "The fact that the prosecution may not have been aware of the information known by the police does not neutralize the 16

constitutional aspects of suppression." People v. Maynard, 80 Misc. 2d 279, 285, 363 N.Y.S.2d 384, 392-93 (Sup. Ct. 1974)(reversing conviction here neither prosecutor nor witness mentioned prior and ongoing mental condition of witness whose uncontradicted testimony was damning to defendant and prosecutor repeatedly failed to honor defense counsel's requests for criminal records of witness) 60. The defense reserves the right to make additional motions in the event evidence
IS

developed indicating that the prosecution did have actual knowledge of the exculpatory evidence and the corollary false testimony heard by the grand jury.
D. CONCLUSION

61. Many years ago, the judge in People v. Rosen, 74 N.Y.S.2d 624, (Co. Ct. 1947) expressed sentiments that are perfectly apropos here, as he indignantly dismissed an indictment for unauthorized possession of a weapon that had been brought against a citizen of blameless history: We often tend to forget that the primary purpose of a grand jury was to protect the innocent from unfounded accusations. Furthermore, under our law, it is the duty of the district attorney to present to the grand jury all of the evidence in his possession relating to a crime, even though it may tend to show that the particular individual did not commit the crime. It is his duty as a public officer to do that. A person's reputation can be ruined forever by the mere handing up of an indictment, even though subsequently the indictment is dismissed, or the person tried and later acquitted. The defendant in this case is a citizen of unblemished character, who has established for himself a reputation in the community for honesty and integrity. His actions in this matter were unquestionably made in good faith. People v. Rosen, at 626-627 62. Much the same thing has happened here to a man who has spent his entire adult life in faithful service to the protection of the citizens of Nassau County. This Court should not countenance it.
V. MOTION TO SEVER CASES

63. The defendant respectfully moves to have his case severed from that of his codefendants 17

under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,20 L.Ed.2d 476). 64. The prosecution has indicated that Defendant Sharpe made statements to them which they intend to introduce into evidence against Mr. Flanagan. "When an extrajudicial statement by one

defendant contains incriminating references to another defendant, admission of that statement upon their joint trial deprives the non-confessing defendant of his right to confront the witness against him unless that witness also testifies at the joint trial." People v. Wheeler, 62 N.Y.2d 867, 869, 466 N.E.2d 846, 847 (1984), citing Bruton. 65. In order, therefore, to preserve his rights under the Confrontation Clause of the 6th

Amendment, Mr. Flanagan requests severance of his case. WHEREFORE, the defendant requests an order consistent with this motion. Dated: May 15,2012 Garden City, New York

BARKET MARION EPSTEIN & KEARON, LLP

BY:B~ Attorney for William Flanagan

18

EXHIBIT A

Page 1 ofl
Lorraine Poppe
From: Sent: Lorraine Poppe Friday, May 22, 2009 6:04 PM 'bcoffey@PDCN.org'

To:

Subject: Zach Parker Hi, Detectivel Zach Parker confessed to his parents yesterday; they have turned some of the stolen property over to the police. I have spoken with Mr. Parker and Detective Sharpe. Right now the police have three computers and the projector. I gave Mr. Parker a list of other equipment we think Zach stole. I have to speak with the Superintendent about whether we want Zach arrested or whether we are going to give him a long-term suspension (etc) if everything is returned. We are also going to mandate counseling. The father is devastated - as we knew. In fact, I was just going to e-mail you his phone number when M~. Parker appeared at school. I just happened to be here for a volleyball game. Detective Sharpe is now involved. Lorraine Poppe

7/812011

Lorraine Poppe From: To:
Sent: Subject: Lorraine, After reading your two emails, I wondered how your day off was like? Your hunch that you told me on Wednesday night was "right on" and fortunately, Zach told the truth. I suppose we will wait until we return on Tuesday, but certainly Zach needs a five-day suspension and we will have to conduct a Superintendent's Hearing in order to go for a more fitting punishment. I am assuming that Zach is not classified and is a senior. Henry From: Lorraine Poppe Sent: Friday, May 22, 2009 5:52 PM To: Henry ~ernan Subject: Thefts Hi, Henry I know you are in New Orleans, but I wanted to let you know that I have been working with the police and the Parker family. Zach Parker confessed to his parents on Thursday night that he has taken equipment from Kennedy; they turned in some of the stolen property. I met with Mr. Parker today, and I have .met with the police. Right now, I have asked them to put everything on hold until Mr. Parker determines if Zach has more of the equipment or if he got rid of it. The police have three computers and the projector. I am hoping we can recover more. We need to discuss possible arrest, suspension, whether we want Zach back in school for the remainder of the year, etc. The police are not going to do anything until we talk. So, how is your day off???? Lorraine
Henry Kiernan Friday, May 22, 2009 9:36 PM Lorraine Poppe

RE: Thefts

1

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