Thursday, August 31, 2006

The Court Report
By Richard Blassberg

When Is An Alibi Not An Alibi?
State Supreme Court, White Plains

Judge Lester Adler Presiding

Monday, August 21st Defendant Jesse O’Brien, charged with First and Second Degree Robbery, and Second Degree Assault, as well as lesser felonies, in a seven-count indictment arising from an incident in Yonkers, appeared for a pre-trial hearing before Judge Lester Adler. O’Brien was accompanied by his Attorney, Richard Candee, who announced at the start of the hearing that he possessed T-Mobil cell phone records and Sony Corporation computer usage records that would place his client, at the time of the incident with which he is charged, in a situation that would tend to make it “doubtful that he engaged in the criminal activity he is charged with.”

Responding to Mr. Candee, Assistant District Attorney Calvin Scholar, addressing the Court, declared that any such materials constitute an alibi, and, as such, needed to be turned over to his office. Attorney Candee responded, “Sony records of the use of his computer at, or about, the time of the alleged crime does not constitute an alibi, and thus we are not bound to turn over such records to the DA’s Office.”

Judge Adler, who had met with the attorneys, in chambers, prior to entering the courtroom, now offered, “By denying that you committed the act in this case, under New York State law constitutes an alibi.” Mr. Scholar followed with, “If Mr. Candee presents a witness by way of establishing an alibi, it is our position that we are entitled to that information.” Judge Adler then asked, “Is the person who was on the phone able to state that the Defendant was at some other location at the time of the crime? The Court would submit that the records would serve only one purpose at the trial, to convince the jury that the Defendant was someplace else. The spirit of the legislation is such as to prevent surprise of the Prosecution. It looks like, and should be treated like alibi material.”

Mr. Candee, visibly upset with Adler’s position, now said, “I do have a strategy, and that strategy does not involve turning over my entire case before it is necessary to.” Mr. Scholar now informed the Court and the Defense that he had two witnesses waiting to be examined, Yonkers Detective Chiarello and Police Officer Rodriguez. He suggested that Mr. Candee might have wished to interview them privately before their appearances.

Candee, reluctant at first, then complied with a request by Adler that he, in fact, speak with the officers.
Following a brief adjournment, during which Mr. Candee availed himself of the opportunity to interview each officer, Judge Adler opened the hearing with, “By prior decision of this Court the Court has granted a hearing on the Defense motion to suppress identifications offered by the Prosecution.”

Mr. Candee immediately followed with a statement raising his concerns over a possible Brady material issue as might be involved with what he referred to as “conflicts” posed by the question of whether the perpetrator was described as White or Hispanic. There followed the presentation of Prosecution witnesses Yonkers Detective Sgt. Kevin Scully, and Detective Anthony Chiarello, as well as Police Officer Rodriguez. The purpose of the hearing was essentially to establish the reliability of the identification of the Defendant by police sources.


The issue here was whether Defense materials that are not being offered specifically to establish that an accused was somewhere other than at the crime scene, at the time of the alleged crime, but that might tend to suggest that he was not, must be treated as alibi evidence subject to release upon request by the Prosecution, under the rules of state legislation governing alibi evidence.

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