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FONDA--In August, the Appellate Division of state Supreme Court reversed the conviction of a former Amsterdam day care operator who had been found guilty in 2003 of child abuse and ordered a new trial, citing egregious misconduct by Montgomery County District Attorney James E. "Jeb" Conboy and improper jury instructions by Montgomery County Court Judge Felix Catena.
The court also found that Catena had violated the rights of Thomas DeVito during the trial by failing to conduct a required hearing, depriving DeVito of his due process right to a fair trial. Catena had sentenced him to 50-years in state prison after DeVito was found guilty in 2003 of molesting two boys who had been left in his care.
Can DeVito get a fair and impartial retrial before Catena?
His attorney, Matthew Mann doesn't think so and has submitted a motion to the Appellate Division asking for a change of venue.
The DeVito case was back before Catena in Montgomery County Court this week when new allegations were presented by Conboy that DeVito abused two other boys not involved in the previous trial. Although a motion is pending in another court for removal of the case from Catena's court, Catena took testimony in the case including DeVito's former wife.
Catena has reserved decision on the question if a statement given by DeVito in 1995 is an admission of allegations from 1997 and 1998. Catena's prior handling of the statement was an issue in the reversal with the appeals court saying that Catena had improperly allowed the jury to decide if DeVito's confession was an admission to the crimes he was charged with or a statement that would lead the jury to believe that he was capable of committing the crimes with which he was charged.
The Appellate Division also attacked Catena's claim that DeVito intended to confess to the charged crimes. In testimony this week, DeVito denied that he had confessed to anything. He said that the statement was not accurate and that he had signed it because he was "under duress" because he was due to drop off his daughter at his wife's residence by a certain time.
DeVito had been convicted of two felony counts of sexual conduct against a child in the first degree and two misdemeanor counts of endangering the welfare of a child following a jury trial held in April, 2003 which had included closed circuit testimony of the two alleged victims, aged 10 and 11.
DeVito had operated a day care center in his home until May, 2002 when one of the children claimed he had been abused by him. Upon being interviewed by authorities, the boy said that a second boy had also been allegedly abused by DeVito.
When interviewed by police, the second boy allegedly confirmed the abuse. Thereafter, two police officers went to DeVito's residence and requested that he accompany them to the police station. While at the police station, he signed a Miranda waiver and confessed to having had "sexual contact" with the two children during 1995 described by him as a "time in my life when there was turmoil with my marriage and I was unhappy with my life". Police said he specifically admitted sexual contact on more than one occasion with both victims.
On September, 2002, he was charged and although the defendant's statement admitted to acts occurring in 1995, the indictment alleged that the sexual abuse took place in 1997 and 1998. Prior to trial, DeVito's attorney moved to suppress his statement to the police by asserting, among other things, that the statement was involuntary and that it could not be used as a confession because of the date discrepancy and it was admissible as evidence of an uncharged prior crime.
Conboy responded by arguing that DeVito's reference to 1995 in his statement represented a conscious deception, presumably to benefit from the expiration of the then-applicable statute of limitations, or a mistake. Allegations constituting a felony crime must be prosecuted within five years of the time they occurred. In either case, the People sought to have the statement deemed admissible as a confession to the crimes charged or that the statement was admissible to prove that DeVito had the opportunity to commit the acts in the manner described by the alleged victims.
Catena first conducted a Huntley hearing and determined that DeVito's statement had been given voluntarily. Catena also conducted a Ventimiglia/Molineux hearing, to determine the admissibility of prior alleged but uncharged bad acts, when no witnesses were called to testify. Catena then ruled that DeVito's statement could be used on the prosecution's direct case because it was a confession to the charged crimes, deeming the date discrepancy "inconsequential".
At trial before Catena, DeVito's statement was read into evidence and Catena instructed the jury that it was for the jury to decide if DeVito's statement constituted a confession to the charged crimes and if so, to consider the statement as direct evidence of DeVito's guilt. Catena further instructed the jury that if it determined that DeVito's statement constituted an admission to uncharged crimes/acts, then it could consider the admission for the sole purpose of "opportunity and/or feasibility" but not as proof that DeVito "possesses any propensity" to commit the crimes alleged in the indictment.
DeVito was ultimately convicted on all counts and sentenced to serve 50 years in state prison.
The appeals found said that while Catena properly found, after conducting a hearing, that DeVito's statement was voluntarily given, he erred in allowing the jury to make the determination of if his voluntary statement constituted either a confession or an admission to uncharged prior crimes. The appellate court said Catena also acted improperly in allowing counsel to present oral argument on whether DeVito's voluntary statement constituted a confession saying that court's determination "that defendant intended to confess to the indicted crimes" was unsupported because DeVito's motion required a hearing at which evidence and testimony would be taken with respect to the dates on which the crimes allegedly occurred. Had the People presented sufficient evidence at the hearing indicating that the crimes occurred only in 1997 and 1998, and not in 1995, the statement could have been found admissible as a matter of law as a confession to the charged crimes.
But because Catena failed to hold an evidentiary hearing, the conviction is required to be reversed and the matter remitted back to county court--and Catena--for a new trial.
If Catena should now decide that DeVito's statement didn't constitute an admission to the crimes but only an admission to prior uncharged prior acts that occurred in 1995, the statement could be admitted to a retrial, if one is held, but only under limited circumstances.
The appellate court ruled that Conboy's remarks during closing statement prejudiced the jury towards him and denied him a fair trial. "The prosecutor's remarks were highly prejudicial, did little to impeach defendant's testimony or credibility, were irrelevant to the crimes charged, appealed to the fears and prejudices of the jury and were designed to sidetrack the issue away from the defendant's guilt or innocence", the ruling says. "They had no place in this trial".
The appeals court acknowledged that while Catena properly sustained objections when raised, his "curative instructions were insufficient to overcome the extreme prejudice that resulted from the prosecutorial misconduct".
The appellate court said that while Catena properly permitted inquiry into defendant's sexual activity allegedly occurring during the children's nap time, since both victims testified that their abuse took place during that period and defendant denied any such opportunity, such inquires should have been limited and brief. Moreover, the prosecutor should not have been permitted to repeatedly imply without any good faith basis that defendant had sexual contact with every man that entered into the day care center.
The court was referring to DeVito's alleged past and current homosexual experiences, saying that Conboy's questioning was a clear attempt to divert the jury's attention away from the evidence.
10-21-05
© 2005 North
Country Gazette
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