Abuse Conviction Falters on Mention of Previous Bad Act

, New York Law Journal


an empty jury box

Mitch Kessler of Cohoes represented Brown on appeal. Kessler said in an interview Friday that "it was clear to me and obviously clear to the court" that the statements from the girl's mother were grounds for reversal.

He said Meyer had expressly warned prosecutors before the trial began that if they intended to introduce Molineux materials, they should let the court know in advance.

Assistant Essex County District Attorney Michael Langey argued for the prosecution.

Brown, now 45, was convicted of five counts of first-degree sexual abuse for touching the girl's vagina and buttocks during two overnight visits she made with her mother to Brown's trailer in Ticonderoga, Essex County, in 2009. He is serving a 12-year sentence.

Statements Admitted

In another decision, a panel unanimously decided that statements Richard Henry made to state police interrogators who were questioning him about possession of child pornography on his home computer should be admitted into evidence.

The ruling in People v. Henry, 106048, reversed a pretrial determination by Albany County Judge Michael Lynch (See Profile) in November 2013 that the statements Henry made to investigators about his Internet service before he was given his Miranda warnings should be suppressed. In addition, Lynch ruled out the prosecution's use of statements Henry subsequently made in the same interrogation in which police said the defendant made "various incriminating" comments.

Henry was charged with 34 counts of possessing a sexual performance by a child.

But the Third Department said Henry's statements before he was given his Miranda warnings were not, as the defendant claimed, the result of a custodial interrogation and subject to suppression.

"During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave," Stein wrote for the court. "Moreover, the two questions that preceded the Miranda warnings—the first asked defendant for his address and the second inquired into defendant's Internet service—were investigatory, as opposed to accusatory."

Albany County prosecutors appealed Lynch's suppression decision.

Presiding Justice Karen Peters (See Profile) and Justices Elizabeth Garry (See Profile) and McCarthy joined in the unanimous ruling by Stein.

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