Judge Faults Queens D.A., Vacates Murder Conviction

Andrew Keshner

New York Law Journal

03-19-2013

A man convicted of murder 13 years ago will get a new trial after a judge faulted Queens prosecutors for not correcting an eyewitness' false testimony that he received no financial benefits from the district attorney's office and failing to turn over all information related to the nearly $20,000 the witness received for living expenses.

"While the defendant has a deplorable criminal history, an honest application of the reasonable possibility standard as defined by appellate courts of this State compels the granting of the motion [to vacate the conviction] for the reasons set forth above based on the Rosario and Brady violations and the failure to correct false testimony," Queens Acting Supreme Court Justice James Griffin (See Profile) wrote in People v. Bedi, 4107/96.

The judge added that the "reasonable possibility" standard was satisfied when a defendant—even in the face of overwhelming evidence of guilt—demonstrated the undisclosed evidence "might have" contributed to the trial result and the error was not "unimportant and insignificant."

Kevin Ryan, a spokesman for Queens District Attorney Richard Brown, said the office is "still studying the decision and we will either appeal it or retry the case or both."

The 59-page March 13 ruling vacates Petros Bedi's second-degree murder conviction in the 1996 shooting death of a man in an Astoria social club, allegedly over a drug debt.

Just before the start of trial, the prosecution turned over a one-page document labeled "Witness Security Program Confidential" that listed a series of payments to Serafim Koumpouras, identified in the document as John Doe. The payments totaled $2,000 and the document also listed $16,640 for a hotel from April 1999 to November 1999.

At trial, Koumpouras maintained under defense questioning that he and a girlfriend had paid for a seven-month hotel stay, and he did not know if the district attorney spent any money on his behalf.

Under questioning from Assistant District Attorney Debra Lynn Pomodore, Koumpouras admitted that two detectives from the district attorney's office helped him relocate outside Astoria. In her closing, she called the witnesses "forthright," "open," "honest" and "accurate."

While in prison, Bedi, represented by Joel Rudin of Manhattan, obtained 38 pages of financial records from the district attorney's office that had not been disclosed to the defense before his conviction. They included 16 cash receipts signed by Koumpouras for meals, travel, rent and other items provided by the prosecution.

Bedi, who maintains his innocence, filed a motion pursuant to Criminal Procedure Law 440.10 to vacate his conviction, arguing that if the records had been produced at the time of trial he could have "made a strong case that this witness had been literally bribed for testimony" (NYLJ, Aug. 15, 2012).

Indeed, Griffin wrote, "If the jury had been presented with this apparent conflict in Mr. Koumpouras's testimony, a juror could have reasonably drawn any number of inferences including, but not limited to, that the witness was attempting to cover up those payments because he believed they were given to him simply to induce him to testify. That could well affect the jurors' impression not only of the testimony of Koumpouras but the jurors' view of all the other prosecution witnesses as well."

As part of the office's opposition to the 440 application, it noted that "as a matter of custom" in the office, witness security program records—which could include things like financial expenses for witnesses—were not included in a trial assistant's litigation file.

According to the judge, that "suggest[ed]" that Pomodore did not have the witness security program documents and did not know about the signed cash receipts.

But that did not correct the misstep, said Griffin.

"The trial assistant need not be personally aware of the falsity of her witness's testimony," he wrote. "If any member of the prosecutor's office, as in the instant case, is aware of information indicating the witness's testimony is false, the information is imputed to the trial assistant along with a duty to correct that testimony. This is a duty shared by the prosecutor's office as a whole."

Denial of Knowledge

The office tried fighting the failure to correct false testimony by citing People v. Washington, 32 NY2d 401, a 1973 Court of Appeals case that stood for the proposition that if a defense attorney is aware of false testimony but stands "silently by," the prosecution is relieved of an obligation to correct false testimony offered by its witnesses.

The office did not concede Koumpouras' testimony was false, but "solely" based its argument on the Washington court, the judge observed. The prosecution said Bedi's trial attorney, Joseph Giannini of Amangansett, waived the obligation when he did not do enough to counter Koumpouras' assertions that Koumpouras, not the office, paid for his personal expenses when he was in the Witness Security Program.

"However, the falsity of Koumpouras' testimony went beyond that; he denied any knowledge of payments made by the prosecutor," Griffin said, disagreeing that Giannini stood "silently by" and noting Giannini "was in no position to correct" the false testimony.

"It is that denial of knowledge which is the crux of the defendant's claim in the instant motion. If, as the People suggest, the trial assistant did not know those cash receipts had been signed by Koumpouras or that the payments had been made directly to him, so too, defense counsel had no way of knowing that the cash receipts reflected money paid directly to the witness and that he had personally signed those receipts," Griffin wrote.

Pointing to the signed cash receipts and Koumpouras' one-time refusal to participate in the witness protection program—information that came to light as the current motion was litigated—Bedi said the office had fallen short of its obligations to produce a testifying witness' prior statements under People v. Rosario, 9 NY2d 286. Furthermore, the office failed to meet its obligations under Brady v. Maryland, 373 U.S. 83, which require disclosure of material exculpatory information.

The prosecution responded the information in question did not qualify as Rosario material because it was not the subject of Koumpouras' direct testimony; it pointed to Criminal Procedure Law 240.45, a statute arising from the Rosario ruling that said prosecutors have to turn over witness' written or recorded statements as they "relate[] to the subject matter of the witness's testimony."

Griffin called the argument "without merit," and added "Evidence which could be viewed as a motive to fabricate is never collateral; it bears directly on the validity of the witness's testimony."

Griffin ruled the same information that qualified as Rosario material also was Brady material. Specifically, the cash receipts and refusal form were Brady material in "two separate and distinct ways."

At the trial's start, they were evidence of a benefit given to Koumpouras by the prosecution. When Koumpouras said on the stand he did not know of the payments and claimed fear for his safety, "this evidence took on an entirely new aspect; it became evidence that the witness was, for some reason, not telling the truth on the stand."

In his motion, Bedi also asserted a claim of "actual innocence," pointing to three pieces of "newly discovered evidence." In one affidavit, for instance, a man said he overheard shots in the club that night and a now-deceased individual admitted to him he had just shot someone.

But Griffin did not reach the merits of the claim, saying a hearing would have been required to determine witness credibility and the motion was already being granted on other grounds. The defense would be free to present its new evidence during the upcoming retrial.

In court papers, Rudin was critical of what he called the Queens District Attorney's office's "don't ask, don't tell" policy. Rudin claimed Pomodore "surely" knew the types of records maintained by the witness security program. But if she did not know, it was the result of a "Chinese Wall" between the trial assistant and the witness security program that ran afoul of the state and U.S. Constitutions.

The prosecution in court papers refuted Rudin's claim that any separation of witness security files and trial files was unconstitutional. "[T]here is no constitutional requirement that the District Attorney's office maintain their files in a particular manner," the district attorney's office said. Moreover, the office said Rudin's claim it engaged in a "don't ask, don't tell" policy so that trial assistants could avoid knowledge of impeachment material was unsupported.

In an interview, Rudin repeated his attack, saying it was "profoundly disturbing that the district attorney's office would defend the individual prosecutor for failing to correct perjury by claiming she was kept in the dark about the truth based upon an office custom that 50 years of U.S. Supreme Court and New York State Court of Appeals case law holds as blatantly unconstitutional."

"We are not going to discuss our Witness Security Program in the context of this case," said Ryan, the Queens spokesman.

Rudin said he plans to defend Bedi in any criminal action. The parties are due back in court before Griffin on April 18.

Assistant District Attorneys Robert Masters, Jennifer Hagan and John Castellano appeared for the Queens District Attorney's Office.

Bedi, 41, is serving a 25-year-to-life sentence on the murder conviction that has been vacated, and a concurrent 17 1/2 year-to-life sentence on two other convictions in the Auburn Correctional Facility.

Prosecution court papers note Bedi already had four felony convictions apart from the murder conviction at question for acts like gun possession and drug sale.

@|Andrew Keshner can be contacted at akeshner@alm.com.