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Despite Errors, Prosecution Gets Second Chance for Trial. (Judge Ozzi).

posted Sep 28, 2012, 9:00 AM by Pete Weinman   [ updated May 13, 2015, 12:44 PM by Lou Bara ]

By Joel Stashenko, New York Law Journal, September 25, 2012 

Matter of NYS v. Morales, 3278-2010

A defendant accused of attempting to murder his parole officer will be retried even though a judge has ruled that the prosecution did not turn over evidence to the defense to which it was entitled.

Brooklyn Supreme Court Justice Wayne Ozzi (See Profile) spelled out in a Sept. 20 decision inPeople v. Morales, 3278-2010, the reasons why he had granted a mistrial without prejudice from the bench last month for Robert Morales.

Ozzi agreed that the prosecution should have turned over photographic fingerprint evidence and the notes of a criminologist. But he denied the request from Morales' attorney that he grant a mistrial with prejudice, which would have precluded a retrial.

Ozzi wrote that where a mistrial is granted on a motion of the defense, there is no double-jeopardy bar to retrial unless the judge determines the prosecution's conduct was motivated by the intent to provoke the mistrial.

No such intent was evident in the Morales' prosecution, Ozzi concluded.

If any such misconduct occurred, the judge said while quoting Matter of Gorghan v. DeAngelis, 25 AD3d 872 (2006), it was "perpetrated by a prosecutor 'bent on securing a conviction, not one seeking to provoke defendant into moving for a mistrial.'"

"Nor can it be said that the case was undoubtedly headed for an acquittal," Ozzi continued. "Defense counsel repeatedly admitted that his client shot his parole officer and his defense of an extreme emotional disturbance had not yet been introduced in evidence. Movant has failed to meet his burden of demonstrating that the judicial process itself has been impaired."

A spokesman for the Brooklyn District Attorney's Office said yesterday it intends to retry Morales for attempted murder in the April 15, 2010, shooting of Parole Officer Samuel Salters.

Morales' defense attorney, Kenneth Perry, initially made a motion for a mistrial "without elaboration" and at the end of the presentation of the prosecution's case, he again asked for a mistrial, this time with prejudice.

Ozzie granted a mistrial without prejudice on Aug. 14, 2012.

On Sept. 10, he heard and denied Perry's request to make the mistrial declaration with prejudice.

"I think it definitely should have been with prejudice," Perry said yesterday in an interview. "I think the mistrial was caused by the People. They consistently denied the existence of this evidence. But what can I do? The decision is made. I am going to have to retry the case."

Ozzi said in his ruling that a possible Rosario violation occurred when the prosecution did not turn over in a timely fashion the notes made by criminologist Stephanie O'Shea of discussions she had with two officers who investigated the shooting, Detective Shimicka Meadows and Officer Rafael Medrano.

The notes, which suggested some confusion about the evidence discovered at the crime scene and how it was handled by police, were not provided to the defense until Aug. 8, 2012, well after the prosecution's opening statements.

Ozzi said not having the notes may have hampered the ability of the defense to properly question Meadows and Medrano at trial.

The judge ruled that a Brady violation also may have occurred with the way authorities gave the defense a copy of thumbnail prints found on the weapon used to shoot Salters. Ozzi said he viewed what appeared to be a "black and white photocopy of an original thumbnail, in poor quality and poor contrast" initially provided to the defense.

Perry, meanwhile, continued to insist that digital images of the thumbnails must exist.

The New York Police Department did not acknowledge that it possessed digital images of the fingerprint until Aug. 2, a day before Morales' jury trial.

Ozzi wrote that "common sense would dictate" that original digital photos would be more useful than small, thumbnail pictures.

"The People's response, in effect that their own experts simply examined the thumbnail prints with a magnifying glass, and that the thumbnail prints in their possession were turned over to the defense, is of no moment," Ozzi wrote. "The defense was entitled to examine the fingerprints in a meaningful way."

 In an interview with authorities after his arrest Morales, 52, acknowledged he shot Salters.

"It's a done deal," Morales told Brooklyn Assistant District Attorney Lewis Lieberman of the need to prove his guilt.

Morales said in a confession that he saw someone throwing a bag toward a trash can as he was on his way to meet Salters. The bag contained a loaded gun.

"The opportunity presented itself and I took it," Morales said. "It was like God said, 'Here, step to the plate. See what you're gonna do.'"

Morales said he was angered because he felt Salters talked down to him. Salters was shot once in the shoulder.

Morales was on seven years parole after serving 25 years for murder when Salters was shot.