SUPREME COURT OF THE STATE OF NEW YORK

::.T:_::*_o: __.....__x

THE PEOPLE OF THE STATE OF NEW YORK, Ind. No. l589l20ll

-against-

NECHEMYA WEBERMAN,

Defendant.

DEFENDAI\T'S MEMORANDUM OF LAW IN

suPPoRT OF CpL S 440.10 MOTTON TO VACATE
HIS JUDGMENT OF CONVICTION

JOEL B. RUDIN
Law Offices of Joel B. Rudin, P.C.
Carnegie Hall Tower
152 West 57th Street, 8th Floor
New York, New York 10019
(212) 7s2-7600
jbrudin@rudinlaw.com

SUSAN NECHELES
Hafetz & Necheles LLP
l0 E. 40th Street, 48th Floor
New York, New York 10016
(2t2) ee7-7400
sm@haf etzneche Ie s. com

Att o r ney s for D efe ndant N e c he my a

Weberman
 TABLE OF CONTENTS

PRELIMINARY STATEMENT......... .........1

ARGUMENT 3

a
POINT I J

COUNSEL DEPRIVED WEBERMAN OF EFFECTIVE

ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO-
AND AT TIMES PILING ON-EVIDENCE THAT PREruDICED
HIM BY IMPUGNING THE SATMAR COMMUNITY AND BY
PAINTING HIS RELIGIOUS FAILINGS AS EVIDENCE OF HIS
a
GUILT J

A. This Is the Appropriate Forum for Mr. Weberman's 440

Motion J

B. The Right to Effective Assistance of Counsel Under State and

Federal Law.......... 5

C. The Law Governing Religious Prejudice 7

D. The Pervasive Impugning of the Satmar Community Violated

Mr. Weberman's Right to a Fair Trial, and Counsel Failed to
Sufficiently Challenge these Remarks by Witnesses and the
Prosecution ........ 11

E. Counsel's Failure to Sufficiently Challenge the Prosecution's

Efforts to Tie Mr. Weberman's Religious Failings to His
Alleged Criminal Conduct Deprived Him of Effective
Assistance..... 15

POINT II..... l8
TRIAL COI.INSEL DEPRIVED WEBERMAN OF EFFECTIVE
ASSISTANCE BY FAILING TO MOVE FOR DISMISSAL OF
THE DUPLICITOUS INDICTMENT. 18

A The Unlawfulness of Duplicitous Indictments and the Duty to

Preserve a Duplicity Issue........ 18

B Trial Counsel in this Case Were Ineffective for Failing to

Challenge the Indictment on Duplicity Grounds 20
C The Prejudice Caused by Counsel's Failure to Raise a
Duplicity Challenge Spilled Over to the Non-Duplicitous
Counts............ 22

ll
POINT III .25

TRIAL COUNSEL DEPRIVED WEBERMAN OF EFFECTIVE

ASSISTANCE BY FAILING TO OBJECT TO THE
PROSECUTION'S HIGHLY PREruDICIAL CROSS-
EXAMINATION AND ITS SUMMATION ARGUMENTS IN
VIOLATION OF THE COURT'S SANDOVAL AND MOLINEUX
RULINGS 25

A The Law Regarding Sandoval and Molineux............. 25

B Counsel's Failure to Object to the Prosecutor's Repeated
SandovaliMolineux Violations Were Ineffective 26
C The Belated Instruction Given by the Court Was Insufficient
to Cure the Prejudice Concerning the Alleged Not-for-Profit
Fraud........ 28
POINT IV 31

WEBERMAN WAS DEPRIVED OF EFFECTIVE ASSISTANCE

OF COIINSEL DUE TO COUNSEL'S FAILURE TO REQUEST
DISCLOSURE OF THE COMPLETE JBFCS THERAPY
RECORDS AS ROSARIO OR CpL $ 240.20 MATERIAL, OR AS
EVIDENCE USED BY A WITNESS TO REFRESH HER
RECOLLECTION, AND TO OBJECT TO THE PROSECUTION'S
SUPPRESSION OF THE MATERIAL... 31

A The Law Governing Rosario and CPL 5 240.20 Disclosure............31

B Counsel's Failure to Request the Complainant's JBFCS
Therapy Records as Rosario or CPL 5 240.20 Material, or as
Evidence Used by a Witness to Refresh Her Recollection 33
POINT V 38

TRIAL COLINSEL DEPRIVED WEBERMAN OF EFFECTIVE

ASSISTANCE OF COLINSEL BY IMPROPERLY SHIFTING THE
BIIRDEN OF PROOF TO THE D8FENSE............. 38

POINT VI 4I
THE PEOPLE'S FAILURE TO DISCLOSE THE COMPLETE
THERAPY RECORDS VIOLATED THEIR STATUTORY
DISCOVERY OBLIGATIONS, ROSAzuO, AND BRADY... 4I

A. The Prosecution's Discovery Obligations Under Brady,

Rosario, and CPL S 240.20 41

lll
 B The Prosecution Failed to Meet Its Discovery Obligations
Under Brady, Rosario, and CPL S 240.20 45
POINT VII 50

PROSECUTORIAL MISCONDUCT DENIED WEBERMAN A

FAIR TRIAL ..........50

A. The Prohibition Against Prosecutorial Misrepresentations and

the Use of False and Misleading Testimony........... 51

B. The Prosecution Here Used False or Misleading Grand Jury

Testimony 55

C. The Prosecution's Misrepresentations Concerning the

Controlled Calls and the Complainant's Motives for
Testifying s6
D. The Prosecution's Misrepresentations andBradylRosario
Violation Concerning the Complainant's Statements in the
Solomon Case......... 58
POINT VIII ........ 59

NEWLY DISCOVERED EVIDENCE DIRECTLY

CONTRADICTS THE COMPLAINANT'S TESTIMONY AND
THE PROSECUTION'S THEORY OF THE CASE, AND AS
SUCH WOULD LIKELY CIIANGE THE RESULT AT A NEW
TRIAL 59

A. The Law Governing New Evidence........... 59

B Had the Newly Discovered Records from the Complainant's
Therapy Sessions Been Available at Trial, the Verdict Would
Likely Have Been More Favorable to the Defense.... .....61
1. The Records Directly Contradict the Complainant's and Her
Mother's Testimony that the Complainant Did Not Know
Basic Details About Sex........... ...........62
2. The Records Contradict Fried's Testimony that Sexual
Assault at the Hands of Mr. Weberman Could Have Been the
Only Source of the Complainant's Trauma and Impeach
Fried's Credibility More Generally....... ....64
3. The Therapy Records Show that the Complainant Had a
History of Taking Extreme Measures to Get Revenge on
Those Who Angered Her and Thus Provide Strong Support
for the Defense Theory of the Case 65

lv
 C Detective Bruno's Sworn Statement that Everything the
Complainant Said in the Controlled Phone Calls Came from
Her Own Statements to Him Makes It Very Likely that the
Complainant's Exculpatory Statements in the Calls Would Be
Admitted at aNew Trial 67
D The Complainant's Post-Trial Lawsuit Against Mr.
Weberman Contradicts Her Claim at Trial that She Had No
Financial Interest in the Case ............... 68
E. Other New Evidence Casts Further Doubt on the
Complainant's Credibility .......... 69
POINT IX............ 70

SUFFICIENT EVIDENCE EXISTS TO MAKE A PRIMA FACIE

SHOWING THAT WEBERMAN IS ACTUALLY INNOCENT .............70

A. The Law Regarding Actual Innocence Claims... 70

B. Clear and Convincing Evidence Establishes that Mr.
Weberman Is Innocent 7I
1. The Complainant's Motivation and Capacity to Fabricate the
Accusations ....... ]I
2. The Complainant's and Other Prosecution Witnesses' Lack of
Credibility 73

3. The Prosecution's Failure to Prove the Age Element Under

Counts I and 2............... .....74
4. Inherent Weaknesses in the Prosecution's Case 75

CONCLUSION 76

V
 TABLE OF AUTHORITIES

Cases

Aliwoli v. Carter,225 F.3d 826 (7th Cir. 2000) .......9

Aparicio v. Artuz,269 F.3d78 (2d Cir. 2001) 7

Baker v. United States, 401F.2d 958 (D.C. Cir. 1968) 22

Banks v. Dretke, 540 U.S. 668 (2004). 42

Brutonv. United States,391 U.S. 123 (1968)........ 29

Buck v. Davis, 137 S. Ct.759 (2017) 11

Carey v. Duclo,vorth,738 F.2d 875 (7th Cir. 1984)........... 43

Chabica v. Schneider,2l3 A.D.2d 579 (2d Dep't 1995) 37

Crawfordv. Lahiri,250 A.D.2d722 (2d Dep't 1998) 38

Dillon v. Weber, 737 N.W.2d 420 (S.D. 2007) 39

Doxtator v. Swarthout,3S A.D.2d782 (4th Dep't 1972) 37

Drew v. United States,33l F.2d 85 (D.C. Cir. 1964) ....... 23

Ex parte D.L.H., 806 So. 2d ll90 (Ala. 2001).................. 64

Flores v. Demskie, 215 F.3d 293 (2d Cir. 2000)

Giglio v. United States,405 U.S. 150 (1972) 48,53

Grady v. Artuz,931 F. Supp. 1048 (S.D.N.Y. 1996) ........ 20

Hollman v. Wilson, 158 F.3d 177 (3d Cir. 1998) 43

Howardv. Bouchard,405 F.3d 459 (6th Cir. 2005) .......7

Jenkins v. Artuz,294 F.3d284 (2d, Cir.2002). 53

VI
Krulewitch v. United States, 336 U.S. 440 (1949) 29

Kyles v. Whitley,514 U.S. 419 (1995) ........ 42,43

LaJoie v. Thompson,2lT F.3d 663 (9th Cir. 2000)........ .................64

Massaro v. United States,538 U.S. 500 (2003) 3

Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994) 6,32

McCleskey v. Kemp,481 U.S. 279 (1987).... ...9

McFarland v. Smith, 6II F.2d 414 (2d Cir. 1979) .10

Murray v. Carrier,477 U.5.478 (1986) 7

Napue v. Illinois,360 U.S. 264 (1959) 53,60, 61,69

People v. Anders,192 A.D.2d 392 (1st Dep't 1993)........ t9

People v. Anderson,256 A.D.2d4l3 (2d Dep't 1998).... 53

People v. Andrew S., 108 A.D.2d935 (2dDep't 1985) 39

People v. Badillo,2IS A.D.2d 811 (2d Dep't 1995) 26

P eopl e v. B aier, 7 3 A.D.2d 649 (2d Dep't 197 9) .............. 65

People v. Beasley,l84 A.D.2d 1003 (4th Dep't 1992)..... 26

People v. Beasley, S0 N.Y.2d 981 (1992) 26

People v. Beauchamp,T4 N.Y.2d 639 (1989) 18

People v. Bellamy, 84 A.D.3 d 1260 (2d Dep't 20II) 59

People v. Benevento,9l N.Y.2d 708 (1998) 6

People v. Bennett,29 N.Y.2d 462 (1972).... 6

People v. Bennett,52 A.D.3d 1185 (4th Dep't 2008) ........ t9

People v. Berkley,l5l AD.2d 463 (1st Dep't 1990)........ 34

vii
People v. Bermudez, 25 Misc 3d 1226(A) (Sup. Ct. New York Co. 2009) 52

People v. Black,65 A.D.3d 811 (3d Dep't 2009).......... t9

People v. Boxill,111 A.D.2d 399 (2dDep't 1985) ..........9

People v. Bracewell,34 A.D.3d ll97 (4th Dep't 2006) t9

People v. Brown,26 A.D.2d 614 (4th Dep't 1966)............ 9

People v. Brown,45 N.Y.2d 852 (1978)

People v. Bugayong,IS2 A.D.zd 450 (lst Dep't 1992) 35

People v. Caba,66 A.D.3d ll2l (3dDep't 2009) ..8

People v. Caban,I29 A.D.2d72l (2d Dep't 1987) t9

People v. Caban,5 N.Y.3d 143 (2005) 5,6

People v. Carborano,30l N.Y. 39 (1950) 29

People v. Caswell, 56 A.D.3d 1300 (4th Dep't 2008) l9

People v. Cavallerio,TI A.D.2d 338 (1st Dep't 1979). 29

People v. Chapman,54 A.D.3d 507 (3d Dep't 2008) 25,26

People v. Cianciola, 86 Misc. 2d976 (Sup. Ct. Queens Co.1976) 23

People v. Colon,13 N.Y.3d 343 (2009) 52

People v. Connally, 105 A.D.2d797 (2d Dep't 1984) 8

People v. Consolazio,40 N.Y.2d 446 (1976)....... .31

People v. Copicotto,50 N.Y.2d 222 (1980) 44

People v. Corrado,16I A.D.2d 658 (2d Dep't 1990) t9

People v. Cubero, 181 Misc. 2d 431 (Sup. Ct. Kings Co. 1999) 37

People v. DaGata, 86 N.Y.2d 40 (1995) 32,44,49

vlll
People v. Davis,52 A.D.3d 1205 (4th Dep't 2008) ..45

People v. Deacon,96 A.D.3d 965 (2dDep't 2012) ..59

People v. Dombrowski, 163 A.D.2d 873 (4th Dep't 1990) 39

People v. Dudley,268 A.D.zd442 (2d Dep't 2000) 45

People v. Ellis,183 A.D.2d 534 (1st Dep't 1992) 6

People v. Fiacco,172 A.D.2d994 (3d Dep't 1991)

People v. Fields,258 A.D.2d 809 (3d Dep't 1999) 45

People v. Fleegle,295 A.D.2d760 (3d Dep't 2002) 26

People v. Forchalle, 88 A.D.2d 645 (2d Dep't 1982) 8, 18

People v. Garcia,46 A.D.3d 461 (1st Dep't 2007) 42

People v. Garrett,23 N.Y.3d 878 (2014) 43

People v. Gezzo,307 N.Y. 385 (1954) 37

People v. Gonzalez,187 A.D.2d607 (2d Dep't 1992)...

People v. Grey,257 A.D.2d 685 (3d Dep't 1999).,

People v. Grffin,242 A.D.2d 70 (1st Dep't 1998) 29

People v. Hambrick,l22 A.D.2d 163 (2d Dep't 1986)........ .............8

Peoplev. Hamilton,ll5 A.D.3d 12(2dDep't 2014) ..59,60,70,71

People v. Harris,109 A.D.2d 351 (2d Dep't 1985) 5

People v. Hess,234 A.D.2d925 (4th Dep't 1996) 30

People v. Hetenyi,304 N.Y. 80 (1952) . 9

People v. Hill,5 N.Y.3d 772 (2005) 51

People v. Hobot,84 N.Y.2d l02l (1995) 7

IX
People v. Hffier, 7 4 A.D.3d 1632 (3dDep't 2010) 5

People v. Huston,88 N.Y.2d 400 (1996) 55

People v. Irwin,180 A.D.2d 753 (2dDep't 1992) 53

People v. Isaacs,94 A.D.3d l0ll (2dDep't 2012) 4

People v. Jelinek,224 A.D.2d7I7 (2d Dep't 1996) t9

People v. Jian Long Shi,43 Misc. 3d91,987 N.Y.S .2d791(2d Dep't 2014) 25,26

People v. Jones,24 N.Y.3d 623 (2014) 59

People v. Jovanovic,263 A.D.2d 182 (1st Dep't 1999)........ 63

People v. Karamanites,104 A.D.2d899 (2d Dep't 1984) 32

People v. Keindl,68 N.Y.2d 410 (1986) 18, 19

People v. Kelly,62 N.Y.2d 516 (1984) 45

People v. Kelly,88 N.Y.2d 248 (1996)

People v. King,85 A.D.3d 820 (2dDep't 20ll) t9

People v. Lancaster, 69 N.Y.2d 20 (1986) 54

People v. Lane,56 N.Y.2d 1 (1982) 22

People v. Lebovits,94 A.D.3d 1146 (2d Dep't 2012) . ......31

People v. Lee,l29 A.D.2d 587 (2d Dep't 1987)........ ......6

People v. Lemma,273 A.D.2d 180 (1st Dep't 2000) J

People v. Levandowski, S A.D.3d 898 (3d Dep't 2004) t9

People v. Lowe,96 Misc.2d 33 (Crim. Ct., Bronx Co. 1978) ......35

People v. Marrow, 301 A.D.2d673 (3d Dep't 2003) ....... 26

People v. McCray,102 A.D.3d 1000 (3d Dep't 2013) ......35

X
People v. McGee,20 N.Y.3d 513 (2013)... 7

People v. Molineux, 168 N.Y. 264 (1901). ..25

People v. Nuness,266 A.D.2d934 (4th Dep't 1999) 20

People v. Ocampo, 28 A.D.3d 684 (zdDep't 2006) ..66

aa
People v. Oliveras, 21 N.Y.3d 339 (2013) ... JJ

aa
People v. Oliveras, 90 A.D.3d 563 (1st Dep't 20ll) JJ

Peoplev. Pagan,190 Misc.2d474 (Sup.Ct. Kings Co.2002) 35

People v. Pagan,2 A.D.3d879 (zdDep't 2003) 38

People v. Pelchat,62 N.Y.2d 97 (1984)..... 51,54,55

People v. Peque,22 N.Y.3d 168 (2013) 4

People v. Perez,65 N.Y.2d 154 (1985) 31

People v. Peterson,42 A.D.2d937 (1st Dep't 1973) 23

People v. Pinto,133 A.D.3d 787 (2d Dep't 2015)

People v. Poole,48 N.Y.2d 144 (1979) 31

People v. Pressley, 91 N.Y.2d 825 (1997). 53

People v. Ramos,132 Misc. 2d609 (Sup. Ct. Kings Co. 1985) 60

People v. Ramos,20l A.D.2d 78 (lst Dep't 1994) 42

People v. Reddick,43 A.D.3d 1334 (4th Dep't 2007)....... ...34,35

People v. Reynolds, 309 A.D.zd976 (3d Dep't 2003) 4

People v. Riback,13 N.Y.3d 416 (2009).... 54

People v. Rivera, Tl N.Y.2d 705 (1988) ............6

People v. Robertson, 12 N.Y.2d355 (1963) 52

X1
People v. Ross, 113 A.D.3d 877 (2dDep't 2014)....... ..4

People v. Ruiz,TI A.D.2d 569 (1st Dep't 1979) 63

People v. Rutter,z02 A.D.2d 123 (lst Dep't 1994) ......36

People v. Rutter,2ll A.D.2d 605 (1st Dep't 1995) 36

People v. Saintilus,T4 A.D.3d996 (2dDep't 2010).... t9

People v. Sandoval, 34 N.Y .2d 37 | (197 4) ... 25,29

People v. Santos,306 A.D.2d 197 (1st Dep't 2003) 6I

People v. Santos,40 Misc. 3d 400 (Sup. Ct. Bronx Co. 2013) J

People v. Sawides, I N.Y.2d 554 (1956). 52

People v. Scott,88 N.Y.2d 888 (1996) 42

People v. Seeber,94 A.D.3d 1335 (3d Dep't 2012) ..........52

People v. Shapiro, 50 N.Y.2d747 (1980) 22

People v. Spann,82 A.D.3d 1013 (2d Dep't 2011) 38

People v. Stamen,163 A.D.2d,499 (2d Dep't 1990) 19

People v. Steadman, 82 N.Y.2d I (1993)............ 51

People v. Stern,226 A.D.zd238 (lst Dep't 1996) 53

People v. Streitferdt, 169 A.D.2d 171 (lst Dep't l99l) 23

People v. Thurston,209 A.D.2d976 (4th Dep't 1994) 36

People v. Tiger,149 A.D.3d 86 (2d Dep't 2017)., 70,71

People v. Tissois, T2 N.Y.2d 75 (1988). 34

People v. Torues,72 A.D.2d754 (zdDep't 1979) 8,9,14

People v. Ventimiglia,52 N.Y.2d 350 (1981) ................29

xii
People v. Vielman, 31 A.D.3d 674 (2d Dep't 2006) 53,54

People v. Vilardi, T6 N.Y.2d 67 (1990) 42

People v. Vogt,l72 A.D.2d864 (2d Dep't 1991) ..t9

People v. Wallert,93 A.D.2d 47 (lst Dep't 1983) ..68

People v. Walters,25I A.D.2d433 (2d Dep't 1998) 38, 53

People v. Weberman,l34 A.D.3d 862 (2dDep't 2015) 15

People v. Itr/iggins,2I3 A.D.2d965 (4th Dep't 1995)... 25,26

People v. Wikowski, l9 N.Y.2d 839 (1967) 52

People v. Wiley,l20 A.D.2d66 (4th Dep't 1986) 7

People v. Wood,66 N.Y.2d 374 (1985) 7

People v. Woodrow, 18 A.D.2d 1050 (4th Dep't 1963). ..37

People v. Wright,25 N.Y.3d 769 (2015) ............51

Sabol v. People,203 A.D.2d369 (2d Dep't 1994)......... 34,35

Shi l4rei Su v. Filion, 335 F.3d 1 19 (2d Cir. 2003) 42

Smithv. Cain, 132 S. Ct.627 (2012) 42

State v. Budis,593 A.2d 784 (N.J. 1991) ...64

State v. Davis,872 So. 2d250 (Fla. 200a) ...11

State v. Pulizzano,456 N.W.2d325 (Wis. 1990)........... 64

State v. Wanen,Tll A.2d 851 (Me. 1998) 64

Strickland v. Washington, 466 U.S. 668 (1984) 516

Strickler v. Greene, 521 U.S. 263 (1999) 4r,42

Su v. Filion,335 F.3d I 19 (2d Cir. 2003) 53

xlll
Tague v. Richards, 3 F.3d ll33 (7th Cir. 1993)......... ...........64

United States v. Agurs,427 U.5.97 (1976) 53

United States v. Bear Stops,997 F.2d 451 (8th Cir. 1993) 64

United States v. Brooks,966 F.2d 1500 (D.C. Cir.1992) 43

United States v. Halper, 590 F.2d 422 (2d Cir. 1978) 23

United States v. Quinn,537 F. Supp. 2d99 (D.D.C. 2008) 43

United States v. Rahman,lS9 F.3d 88 (2dCir. 1999) 10

United States v. Seijo, 514 F.2d 1357 (zdCir. 1975). 48, 60

united states v. smith, II2F.2d 83 (2d cir. 1940) ............23

united states v. stofslv, 527 F.2d,237 (2d cir. 1975) 60

United States v. Wallach,935 F.2d 445 (2d Cir. 1991) 53, 60

United States v. Weiss,930 F.2d 185 (2d Cir. 1991) ..10

Zapatav. Vasquez, 788 F.3d 1106 (9th Cir. 2015)..... ..10

Statutes

Criminal Procedure Law $ 190.65 54

Criminal Procedure Law $ 240.20 .....32,37, 44, 49

Criminal Procedure Law $ 240.43.

Criminal Procedure Law $ 240.45. ........3 1

Criminal Procedure Law $ 240.70. ........45

Criminal Procedure Law $ 240.75 32

Criminal Procedure Law $ 440.10 51, 59, 60

xlv
Criminal Procedure Law $ 440.30............. ........4,59

Criminal Procedure Law $ 60.42 63

Criminal Procedure Law $ 70. I 0................ 54

Penal Law $ 130.75 ..24

Penal Law $ 130.80 ..24

Rules

New York Rules of Professional Conduct,22 NYCRR 1200.0, Rule 8.4(c) 51

Constitutional Provisions

New York Constitution, Article I, $ 6.... 5

U.S. Constitution, Amendment VI 5

U.S. Constitution, Amendment XIV ....... 5

Other

Affirmation of Joel B. Rudin passlm

Therapy Records of Rivky Krausz, prepared by Sarah Fried 62,66,74

Trial Transcript

United States Attorneys' Criminal Resource Manual 24

XV
 PRELIMINARY STATEMENT
In 21st-Century America, if anything is clear in our criminal justice system, it is

that a man may not be tried or convicted based upon his religious beliefs, ethnicity, racial

background, or legitimate associations. But this is what the Brooklyn District Attorney's

Office under former D.A. Charles J. Hynes did to Nechemya Weberman.

Pilloried in the news media and by other politicians for a policy of not prosecuting

members of the ultra-Orthodox Satmar Jewish sect for sex crimes but instead deferring to

rabbinical tribunals, Mr. Hynes' office was determined to convict Mr. Weberman, a

religious counselor accused of molesting a teenage girl, at any cost. His prosecutors

castigated and demonized the Satmars, condemned Mr. Weberman for associating with

them, condemned him for following, and for not following, their religious beliefs,

obtained an invalid indictment by misleading the grand jury and the court, defied pretrial

rulings limiting bad-character evidence, misled the judge into precluding legitimate

defense evidence, and violated their basic disclosure obligations under Brady and

Rosario. They got their 59-count conviction and unconscionable 1 O3-year sentence, but

this judgment may not stand.

In this motion, we attack the misconduct of the D.A.'s Office head-on, but we also

show that the blame for what happened to Nechemya Weberman, an innocent man, also

must be shared by his defense attorneys. Rather than protest a modern-day Dreyfus Affair

playing out in a Brooklyn courtroom, they joined in the condemnation of the Satmars and

sat passively while the prosecutors convicted their client for his religious beliefs and

1
associations, uncharged "bad acts," and purportedly poor character. They failed the most

basic task of moving against 85 counts of an 88-count indictment that werc obviously

flawed for duplicity. And they failed to make the most minimally necessary discovery

request for counseling records of the complainant which we show in this motion were

exculpatory of the defendant and devastating to the credibility of the People's main three

witnesses.

The newly-discovered evidence we present in this motion, including the

exculpatory counseling records of the complainant and the evidence of prosecutorial

misconduct revealed by the case detective himself, also warrant vacating the conviction

based upon that provision of Criminal Procedure Law $ 440.10, as well as actual

innocence. The inherently weak and incredible case that the D.A.'s Office propped up

with its assault on Mr. Weberman's First Amendment and Fair Trial rights cannot

withstand the renewed scrutiny that, five years after passions have cooled down, we give

it in this motion.

The facts of what occurred during the trial proceedings, as well as what we've

discovered since, are set forth in the Affirmation of new counsel, Joel B. Rudin ("Rudin

Afhrmation"), and adopted herein by reference.

2
 ARGUMENT

POINT I
COUNSEL DEPRIVED WEBERMAN OF EFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO-AI{D
AT TIMES PILING ON-EVIDENCE THAT PREJUDICED HIM
BY IMPUGNING THE SATMAR COMMUNITY AND BY
PAINTING HIS RELIGIOUS FAILINGS AS EVIDENCE OF HIS
GUILT

A. This Is the Appropriate Forum for Mr. Weberman's 440 Motion

Defendant, Nechemya Weberman, brings this ineffectiveness challenge under CPL

$ 440.10, in accordance with the view of the Court of Appeals that "in the typical case it

would be better, and in some cases essential, that an appellate attack on the effectiveness

of counsel be bottomed on an evidentiary exploration by collateral or post-conviction

proceeding brought under CPL 440.1 0." People v. Brown,45 N.Y.2d 852, 853-5 a Q978);

see also People v. Santos,40 Misc. 3d 400, 406 (Sup. Ct. Bronx Co. 2013) (citing Brown

and quoting U.S. Supreme Court guidance that "[t]he trial court is 'the forum best suited

to developing the facts necessary to determining the adequacy of representation during an

entire trial"'(quoting Massarov. United States,538 U.S. 500, 505 (2003)).

Much of Mr. Weberman's ineffectiveness claim rests on "matters of trial strategy"

and thus "requirefs] a CPL 440.10 motion so that the record c[an] be expanded with

respect to the reasons for trial counsel's strategic choices." People v. Lemma,213 A.D.2d

180, 180-81 (lst Dep't 2000). For instance, as detailed below, Mr. Weberman's claim

involves questions about trial counsel's reasons for failing to raise a challenge to the

duplicity of the indictment, to request obviously relevant therapy records of the

complainant, and to object to highly prejudicial Molineux and Sandoval testimony. See
5
People v. Peque,22 N.Y.3d 168,202 (2013) ("Where a defendant's complaint about

counsel is predicated on factors such as counsel's strategy, advice or preparation that do

not appear on the face of the record, the defendant must raise his or her claim via a CPL

440.10 motion."). Even where an ineffectiveness claim "is based, in part, on matter

ooaCPL
appearing on the record and, in part, on matter outside the record," 440.10

proceeding is the appropriate forum for reviewing the claim," which must be assessed "in

its entirety." People v. Ross, 1 13 A.D.3d 877 , 878 (2d Dep't 2014); see People v. Isaacs,

94 A.D.3d 1017, 1018-19 (2d Dep't 2012) (440.10 proceeding is the appropriate forum"

for mixed ineffectiveness claim, "which must be viewed as a whole"). Further,the 440

motion may be based on "sworn allegations" of fact, which, in turn, "may be based upon

personal knowledge of the affiant or upon information and belief, provided that in the

latter event the affiant must state the sources of such information and the grounds of such

belief." CPL $ 440.30(1)(a); see also People v. Pinto, 133 A.D.3d 787,790 (2d Dep't

2015) (a defendant bringing an ineffectiveness claim "need not submit an affidavit or

affirmation from his or her former attorney attesting to counsel's ineffectiveness."). The

Rudin Affirmation fully complies with these requirements

A 440.10 proceeding is especially appropriate where, as here, the defendant's

counsel attrial also represented him on direct appeal, as a lawyer cannot be expected to

argue his own ineffectiveness. See People v. Reynolds,309 A.D.2d976,977 (3dDep't

2003) ("We reject the People's assertion that defendant should have raised this

[ineffectiveness] issue at sentencing since defendant was still being represented by the

very same counsel now claimed to be ineffective."); see also People v. Hffier,74

4
A.D.3d 1632,1634 (3d Dep't 2010) (where "defendant was represented on direct appeal

by the same attorney he retained to represent him during his trial . . . , the court should

not have denied defendant's motion pursuant to CPL 440.10(2)(c) because counsel's

failure to raise his own ineffectiveness on direct appeal was not'unjustifiable"'); People

v. Harcis,109 A.D.2d 351, 360 (2d Dep't 1985) ("It hardly seems that trial counsel

would have argued his alleged ineffectiveness before this court. . . ."). Since Mr.

Weberman's appellate counsel, Richard Mischel, was on the team representing Mr.

Weberman attrial, see Rudin Aff. tT l72,Mr. Weberman could not have been expected to

claim on direct appeal that his trial counsel were ineffective.

B. The Right to Effective Assistance of Counsel Under State and Federal Law

The federal and New York state constitutions guarantee criminal defendants the

right to effective assistance of counsel. See U.S. Const., amends. VI, XIV; N.Y. Const.,

art. I, $ 6; see also Stricklandv. IVashington,466 U.S. 668,669 (198a); People v. Caban,

5 N.Y.3d 143, 155-156 (2005). To prevail on a claim of ineffective assistance of counsel

under federal constitutional standards, a defendant must show both that counsel's

performance was deficient, and that the deficient performance prejudiced him. See

Strickland,466 U.S. at 694. The "prejudice" required under the federal standard is a

"reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id.

New York's standard for ineffectiveness, however, o'offers greater protection" to

defendants than the federal standard under Strickland. Caban,5 N.Y.3d al156. Under the

state standard, the court assesses whether counsel provided "meaningful representation,"

5
of which prejudice is only one element, id New York's standard "is ultimately concerned

with the fairness of the process as a whole rather than its particular impact on the

outcome of the case." People v. Benevento,9I N.Y.2d 708,714 (1998). "Thus, under our

State Constitution, even in the absence of a reasonable probability of a dffirent outcome,

inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a

fairtrial." Caban,5 N.Y.3d at156. (emphasis added).

A reviewing court may not find ineffective assistance if there were "strategic or

other legitimate explanations" for counsel's deficient performance. People v. Rivera,Tl

N.Y.2d 705,709 (1988); see also Stricklandv. Washington,466 U.S. at 689. On the other

hand, ootactics" that are irrational, reflect egregious lapses ofjudgment, or are founded on

faulty understanding of the law or the facts applicable to the case, inadequate

investigation or preparation, defective logic, or lack of responsible reflection, are not

'oreasonable," and therefore do not meet constitutional standards of effective assistance.

See, e.g.,Stricklandv. Washington,466 U.S. at 691;Peoplev. Bennett,29N.Y.2d462,

466 (1972); People v. Ellis,183 A.D.2d 534 (lst Dep't 1992); People v. Lee,I29 A.D.2d

587, 588 (2d Dep't Igi|).One way a defendant might demonstrate that counsel provided

ineffective representation that cannot be explained as reasonable trial strategy, is to

"show[] that counsel omitted significant and obvious issues. .." Mayo v. Henderson, 13

F.3d 528, 533 (2dCir. 1994); see also People v. Grey,251 A.D.2d 685, 686 (3d Dep't

1999) (counsel's failure to move for dismissal based on "meritorious and dispositive

objection" "constituted a serious omission" that denied defendant effective

representation).

6
 Absent some countervailing strategic reason, counsel has an absolute obligation to

at least preserve meritorious issues for appeal, and his failure to do so may give rise to a

constitutional claim. Aparicio v. Artuz,269 F .3d 78,91 (2d Cir. 2001); People v. Wiley,

I20 4.D.2d66,68 (4th Dep't 1986) (finding defense counsel ineffective for failing to

preserve issue of alibi charge where alibi was part of defense theory). "To preserve issues

on the record is one of the most basic duties of a trial lawyer, not to mention a criminal

defense attorney." Howard v. Bouchard,405 F.3d 459, 480 (6th Cir. 2005).

While the courts generally look to the totality of counsel's representation in

determining whether counsel was ineffective, a single, o'isolated" error may be

"sufficiently egregious and prejudicial" as to amount to ineffective assistance of counsel,

notwithstanding counsel's otherwise-competent representation. Murray v. Carrier,477

U.S. 478, 496 (1986) (citations omitted); see also People v. Hobot,84 N.Y.2d 1021,1022

(1995). To rise to that level, the Court of Appeals has stated that the single "omission

must typically involve an issue that is so clear-cut and dispositive that no reasonable

defense counsel would have failed to assert it, and it must be evident that the decision to

forgo the contention could not have been grounded in legitimate trial strategy." People v.

McGee,2O N.Y.3d 513, 518 (2013).

C. The Law Governing Religious Prejudice

In New York, with few exceptions,"any attempt to discredit or otherwise penalize

a witness because of his religious beliefs . . . is improper, because those factors are

irrelevant to the issue of credibility." People v. Wood,66 N.Y.2d 374,378 (1985). Even

when some inquiry into religious matters may be acceptable, such evidence can quickly

7
"veer[] too far into an impermissible discussion in front of the jury of various aspects of

the witness's religious beliefs," especially in a case that "turned on the issue of

credibility." People v. Caba,66 A.D.3d ll2l, ll23-24 (3d Dep't 2009). An accused is
deprived of a fair trial when the prosecutor attempts "to discredit the defendant by

showing his affiliation with a group which, because of its unorthodox behavior, would be

held in general disfavor." People v. Forchalle, 88 A.D.2 d 645, 646 (2d Dep't 1982).

The prosecutor in Forchalle "delv[ed] into the defendant's religious background

and the practices of his church in a manner that was both highly prejudicial and

inflammatory"; "[t]hrough his questioning of several witnesses and through his closing

argument, the prosecutor sought to portray the defendant's church as less than

legitimate . . . suggest[ing] that money raised on behalf of the church was somehow

misused and that the defendant and his colleagues established church by-laws to comport,

not with traditional religious teachings, but with their own sexual appetites." Id. at 646.

The court held that "[s]uch prosecutorial conduct is not only unfair but also tends to

sidetrack the jury from the issue of innocence or guilt." Id.

More broadly, New York's courts have made clear that prosecutors may not

"show that a defendant is a member of an organization and then impeach him with the

alleged illegal, immoral or vicious acts of that organization." People v. Connally,l05

A.D.2d197,798 (2d Dep't 1984) (quoting People v. Torres,72 A.D.2d154,755 (2d

Dep't 1979)); People v. Hambrick,122 A.D.2d 163,164 (2d Dep't 1986) ("attempt to

discredit the defendant, whether by reason of his religious beliefs or because of his

affiliation with a group held in general disfavor, was improper"); People v. Brown,26

8
A.D.2d 614, 614 (4th Dep't 1966) ('oreferences to defendant's religion on cross-

examination . . . [was] irrelevant, unnecessary to the establishment of any essential

element of the crimes charged and so prejudicial as to deprive defendant of a fair and

impartial trial"); cf. People v. Boxill,111 A.D.2d 399,401(2d Dep't 1985) ("[I]n the

absence of a connection between gang membership and the crime or crimes for which a

defendant is being tried, the prosecutor's questions as to gang membership are

improper."); Torres,72 A.D.2d aI755 (2d Dep't 1979) ("attempt to impeach the

defendants through the alleged acts of an organization with which they associated

oothe
constitute[d] reversible error," particularly as credibility of the witnesses was

critical").

Inserting into a trial remarks about religion may also constitute improper

introduction of character evidence. Where a prosecutor was "allowed to show the

defendant to have been a clergyman who had given up one religion for another at

frequent intervals," and then argued in summation that the accused was "a renegads," "&

man to whom religion is a fraud" and to whom "faith . . . means nothing," the Court

vacated the conviction, concluding that "the prosecution breached a firmly established

rule of our law" prohibiting the use of prejudicial character evidence . People v. Hetenyi,

304 N.Y. 80, 87-88 (1952).

Under federal law, too, "[t]he Constitution prohibits racially for religiously] biased

prosecutorial arguments." McCleskey v. Kemp,481 U.S. 279,309 n.30 (1987); see also,

e.g.,Aliwoliv. Carter,225F.3d826,83I (7thCir.2000) ("There is no place in a criminal

prosecution for gratuitous references to race . . . . Elementary concepts of equal

9
protection and due process alike forbid" such conduct, "since it draws the jury's attention

to a characteristic that the Constitution generally demands that the jury ignore." (internal

quotation marks omitted)). Drawing on these principles, the Second Circuit has noted that

"[e]ven a reference fto race or religion] that is not derogatory may carry impermissible

connotations, or may trigger prejudiced responses in the listeners that the speaker might

neither have predicted nor intended." United States v. I(eiss,930 F.2d 185, 196 (2d Cir.

1991) (quoting McFarland v. Smith, 6ll F.2d 414, 417 (2d Cir. 1919)).

Further, expert testimony on religious practices is properly excluded where the

testimony is "of marginal relevance and [i]s likely to cause confusion among jurors."

United States v. Rahman,IS9 F.3d 88, 136 (2d Cir. 1999). In Rahman, the issue was

whether the accused, a Muslim man, had "conspired to wage war on the United States

through acts of terrorism"; the court held that "[t]he question whether such acts on his

part would have been condoned or forbidden by Islamic law . . . would have little

likelihood of illuminating whether he committed the forbidden acts of terrorism." Id.

Given the unfairness and severe prejudice that result when atrial is so infected,

failing to object to this kind of inquiry and argument is grounds for finding ineffective

assistance of counsel. See, e.g., Zapata v. Vasquez, 788 F.3d 1 106, lll4, Il23-24 (9th

Cir. 2015) (defense counsel ineffective for failing to object or request an adequate

curative instruction where prosecutor's reference to "slurs . . . directed at a specific ethnic

group . . . risked sparking visceral outrage among members of the jury and encouraged

them to convict based on emotion rather than evidence").

l0
 Courts-including, recently, the Supreme Court-have also found ineffectiveness

where biased evidence or improper remarks came from defense counsel herself. See Buck

v. Davis,137 S. Ct.759,175 (2017) (finding ineffective assistance where defense counsel

introduced in evidence "report [that] reflected the view that [the accused's] race

disproportionately predisposed him to violent conduct"); see State v. Davis,872 So.2d

250,256 (Fla. 2004) (defense counsel's acknowledgement of his own racial bias during

jury voir dire and summation, in purported attempt to bring jury's 'olatent bias out into the

open," ineffective under Strickland).

D. The Pervasive Impugning of the Satmar Community Violated Mr.

Weberman's Right to a Fair Trial, and Counsel Failed to Sufficiently
Challenge these Remarks by Witnesses and the Prosecution

Throughout the trial, the prosecution repeatedly made remarks-and attempted to

elicit remarks from witnesses-that impugned the religious beliefs of the Satmars and, in

turn, Mr. Weberman for his association with the sect. One particular theme that the

People hit on again and again-despite a court ruling explicitly precluding such an

approach-was the alleged indecent conduct of the YadHatznius, and Mr. Weberman's

supposed membership in or association with the group. See Rudin Aff. 'lTfl 20,37-39,62-

63, 92, 102-07 , 132-36. The defense itself periodically elicited prejudicial testimony on

this topic and made additional prejudicial arguments, see, e.9., id. atll39, 106, ll4, 146

Before trial, the prosecution telegraphed its intention to paint Mr. Weberman as

guilty by virtue of his association with the Satmars. First, it moved to admit under

Molineux supposed evidence that Mr. Weberman was a lecherous conspirator in a

shadowy Vad Hatzinus plot to sexually abuse young girls. See Rudin Aff. 1T1T 19-20.

1l
Defense counsel objected to this evidence, and the court precluded it. Id. atl20. Second,

the People requested the court's permission to call an expert witness concerning "Hasidic

culture," particularly as it related to "'immodest' behavior by a female such as the

complainant and generally how a modesty committee [Vad Hatznius] would operate and

enforce its modesty rules." Id. at fl 21. The defense did not object to the expert testifying,

or seek in any way to exclude or limit testimony about YadHatznius or Satmar modesty

rules, and the court agreed to permit it. 1d.

As it turned out, the People embarked on exactly the course that they

foreshadowed in their pretrial motions. Setting the stage for the trial in his opening

statements, the prosecutor compared the Satmars to the zealots carrying out the 'oSalem

witch trials." Rudin Aff. 1T30. The defense did not object. Instead, they joined in

impugning the Satmars. Defense counsel said that he and the prosecutor "ha[d] no

disagreements about the community." Id. at fl 31. He agreed that the Satmars held their

beliefs "rigidly'' and that "some of these rigidities can seem cruel and oppressive." 1d

There was no reasonable strategic purpose for letting this inflammatory rhetoric into the

courtroom let alone agreeing with it. Counsel could have expressed sympathy for the

complainant's desire to free herself from rigidity without condemning an entire religious

group. Broadcasting a shared disdain for the Satmars was akin to inveighing against a

caricature of Sharia law with a Muslim defendant-remarks that would be patently

prejudicial and improper.

The prosecution continued its smear campaign as it examined its expert witness,

Professor Allan Nadler. See id. atl35-36. When Nadler began answering the
12
prosecutor's questions about the oppressive ways of Vad Hatznius, defense counsel

inexplicably made no objection for several transcript pages' worth of testimony, despite

the court's pretrial ruling on that topic; they did finally object on "relevancy'' grounds but

were oveffuled.Id. atl37. As detailed in the Rudin Affirmation, the People continued to

elicit more of this irrelevant and prejudicial evidence-about the Satmars generally and

the Vad Hatznius specifically-throughout the trial, usually without objection by the

defense. See, e.g., id. atfl\ 62,92, 102-03 (defense witness Feder grilled on cross,

without objection, about whether she knew the "fact" of Mr. Weberman's "reputation in

the community" as a member of the YadHatznius); id. at tl 107 (defense witness Gluck

asked on cross, without objection, about YadHatznius breaking into her room wearing

black masks); see also id. atl67 (gratuitous, non-probative questions about the

complainant's family members being called o'mosers," or snitches). When it came time

for Mr. Weberman's cross-examination, the prosecution aggressively questioned him

about his dealings with YadHatznius, at times sketching out with thick lines of innuendo

a picture of the conspiracy that the court had expressly ordered the prosecution not to go

into before trial. Id. atll132-36.

The defense objected periodically, usually after several minutes' worth of

irrelevant and prejudicial testimony had already come out, often to the form of the

question rather than its substance. See, e.g., Rudin Aff. lT63 (tardy motion for mistrial

based on complainant's Yad,Hatznius testimony, but only on hearsay grounds); fl 136

(objection to eliciting of innuendo about Vad Hatznius conspiracy on ground that

question called for speculation as to "what other people want"). But a great deal of the

l3
testimony went completely unchallenged, and the prejudice surely came through to the

jury. See Tones,72 A.D.2d a'-755 ("Although objections to" some of prosecutors

oowere
improper and prejudicial questions about the conduct of defendants' gang

sustained, the damage had already been done.").

Further, at times, it was the defense that elicited the same irrelevant testimony

itself, thus exacerbating the prejudice. See, e.9., Rudin Aff. tT 39 (eliciting on cross Nadler

testimony that Vad Hatznius does in fact exist in Brooklyn); id. at fl 114 (Gluck

testimony that Mr. Weberman was part of Vad Hatznius); id. atll I2l,I37 (asking Mr.

Weberman about YadHatznius). Indeed, as to Ms. Gluck, the defense lawyer, evidently

surprised by answers from a defense witness who hadn't been properly prepared, tried

unsuccessfully to get the witness to change her damaging answers, only to be shot down

by the court. Id. attl'll 113-14. As explained above, the people then exploited these

openings by the defense on cross-examination to make the damage even worse.

After a short charge conference in which the defense failed even to request a

limiting instruction to stanch some of the bleeding from the prosecution's hacking away

at the Satmars, the defense gave a summation in which it bookended the prosecutor's

improper remarks from his opening regarding the Salem witch trials with its own

statements comparing the Satmars to the Salem witch hunters. Rudin Aff. fl 146. The

People then gave a summation pervaded with more irrelevant and improper references to

religious matters. Id. atfl 161 (inflaming jury with vision of Vad Hatzinus as "[a] group

of men . . . who wear black masks" and ooterrorize[] those that d[o] not submit to the

Satmar rules"). At one point, the prosecutor took the patently improper step of declaring

t4
Mr. Weberman guilty by association, telling the jury, "when you evaluate the defendant's

testimony and his credibility, keep in mind that a person is often judged by the company

that they keep." Id. atn rc2. Defense counsel made a general objection to the remark, but

without providing any guidance to the court as to the basis for the objection, and the court

ovemrled it.1d.

Significantly, when appellate counsel argued that the prosecution's summation had

denied Mr. Weberman a fair trial, the People argued, and the Appellate Division agreed,

that Mr. Weberman's trial counsel had failed to preserve the issue, and it declined to

reach it. People v. Weberman, 134 A.D.3d 862,863 (2d Dep't 2015). Failing to preserve

such a fundamentally significant issue was plainly negligent, prejudiced Mr. Weberman,

and thus constitutes ineffective assistance under State and Federal law.

E. Counsel's Failure to Sufficiently Challenge the Prosecutionos Efforts to Tie

Mr. Weberman's Religious Failings to His Alleged Criminal Conduct
Deprived Him of Effective Assistance

Related but distinct from the People's general strategy of painting the Satmars-

and, by association, Mr. Weberman-in an unflattering light was their attempt to make

Mr. Weberman look guilty in the eyes of the jury by eliciting testimony, and arguing,that

he was guilty in the eyes of God. Specifically, the People repeatedly elicited testimony

that Mr. Weberman had violatedyichud, the Hasidic rules that govem how men and

women should interact. ,See Rudin Aff. fl 210.

At the start of the trial, Prof. Nadler testified about "the prohibition that forbids a

man and a woman to be together in an enclosed space." Id. atfl 35. Improperly tailoring

his testimony-which was supposedly aimed at giving the jury a general background in

t5
Satmar culture-to later witnesses' testimony that both sides knew would be coming, he

was asked to opine on whether yichud prohibited a man and a woman who are not

married from being in an elevator, in a closed room, or in a car, and then whether yichud

applied to'oa 12 hour trip with an adult male and female teenager," to which Nadler

stated, "Absolutely, yes. That[] would be unacceptable." Id. The defense raised no

objections to this improper testimony. The prosecutor asked whether, under the "strict

separation between men and women" in the Hasidic community, it would be "unusual for

a woman to see a male spiritual advisor or counselor"; Nadler replied that he had "never

heard of it" but "would say it could very easily lead to violation of Jewish law" and

would place the participants "on a slippery slope." Id. attf 36. If the door was locked

during such a counseling session, he continued, it would be "not only unusual" but "a

clear and flagrant violation of Jewish law," "a cardinal violation of law." 1d. Defense

counsel did not object to any of these questions or answers, even though it was plain that

Mr. Weberman's adherence, or lack thereof, to strict Jewish laws had little to do with

whether he had committed the alleged offenses and was very likely to prejudice the jury.

The prosecution continued in this same vein with later witnesses, defense counsel

failing to make the obvious relevance and prejudice objections all the while. See id. at

$ 47 (prosecution eliciting from the complainant, without objection, irrelevant testimony

that her car ride with Mr. Weberman violatedyichud); id. atl77 (complainant's therapist

testifying, without objection, irrelevant testimony that her social worker agency, in

contrast to counselor Mr. Weberman, followedy ichud); id. atl 107-09 (prosecution

grilling defense witness Gluck on Mr. Weberman's alleged violations of yichud); id. at

t6
n I25 (prosecution grilling Mr. Weberman himself during cross-examination about his

failure to followyichud); id. atl140 (prosecution asking Mr. Weberman, "Would it

violate the [T]orah for an adult to have sex with a child?").

In summation, the prosecutor-aiming her character assassin's weapon straight at

Mr. Weberman's heart-argued that Mr. Weberman's supposed failures to adhere to

Jewish law "do[]n't go over too well in a Satmar community," that "defendant is

anything but a pious man," and that "[t]his pious Hasidic man violated so many rules of

Jewish law." Id. at 'l|1l 159, 162. These allegations were entirely irrelevant to whether Mr.

Weberman violated secular law.

The court actually acknowledged at one point that such matters were irrelevant,

oothe
asking the prosecutor: fact that he violates Yichud, what does that have to do with

this case?" Id. atfl 101. And the defense made a similar comment in passing. Tr. 1390-91.

But throughout most of the trial, the prosecution was free to conduct a trial within a trial

on Weberman's alleged religious failings. Instead of objecting, the defense often joined

in, making feeble and mostly unsuccessful attempts to show that Mr. Weberman had not,

in fact, violatedyichud, see, e.g., Rudin Aff. lT 120-even though, again, such evidence

was no more relevant to the question of guilt than would be, say, evidence that a Catholic

had failed to use contraception. Such evidence could, and should, have been kept out of

the trial from the outset. Having failed to move to preclude or limit it, the defense should

at least have requested a limiting instruction at the end of the trial telling the jurors that

they could not convict Mr. Weberman based on his perceived religious or moral failings.

t7
But just as it had done with the Vad Hatznius, the defense never took these crucial steps

to protect Mr. Weberman's ability to obtain afair trial.

In sum, Mr. Weberman's lawyers inexcusably exposed him to the grave effects of

the prosecution "delving into the defendant's religious background and the practices of

his freligious community] in a manner that was both highly prejudicial and

inflammatory" and thereby "sidetrack[ing] the jury from the issue of innocence or guilt."

Forchalle, SS A.D.2d at646. These failures deprived Mr. Weberman of meaningful

representation and require that he be granted a new trial.

POINT II
TRIAL COUNSEL DEPRIVED WEBERMAN OF EFFECTIVE
ASSISTANCE BY FAILING TO MOVE FOR DISMISSAL OF THE
DUPLICITOUS INDICTMENT

A. The Unlawfulness of Duplicitous Indictments and the Duty to Preserve a

Duplicity Issue

The Court of Appeals has held that a count of an indictment that alleges more than

one criminal act, or a continuing series of criminal acts, is void for duplicity. See People

v. Keindl,68 N.Y.2d 410 (1986); People v. Beauchamp,T4 N.Y.2d 639 (1989). The

Court reasoned that the rule against duplicity had to be strictly enforced to provide the

accused notice of and fair opportunity to defend against discrete criminal charges, ensure

he would not be convicted for an actthat was not the subject of a specific count voted by

the grand jury, ensure the right to a unanimous verdict, and safeguard the right under the

Double Jeopardy Clause not to be again prosecuted for the same offense.

l8
 Significantly,in Keindl, eventhough the indictment on its face did not allege more

than one act, the Court held that where there was testimony that more than one act had

occurred within a count's specified time interval, the count would have to be dismissed as

duplicitous . See Keindl, 68 N.Y.2 d at 417-18. After Keindl, and prior to the trial in this

case, numerous courts applied this rule where a complainant's grand jury or trial

testimony revealed afacially valid indictment to be duplicitous. See, e.g., People v.

Jelinek,224 A.D.2d7Il,7I8 (2d Dep't 1996); People v. Vogt,172 A.D.2d 864,865 (2d

Dep't I99I); People v. Corrado,16l A.D.2d 658, 659 (2dDep't 1990); People v. Black,

65 A.D.3d 81 1, 8 13- 15 (3d Dep't 2009); People v. Levandowski, 8 A.D.3d 898, 899-900

(3d Dep't 2004); People v. Bennett, 52 A.D.3d 1185, 1886 (4th Dep't 2008); People v.

Bracewell,34 A.D.3d 1197,1198-99 (4th Dep't 2006).

At the same time, by 2012 when this trial occurred, many reported decisions had

declined to review duplicity claims on appeal that had not been adequately preserved by a

timely motion to dismiss. See, e.g., People v. Anders, 192 A.D.2d 392,393 (1st Dep't

1993); People v. King,85 A.D.3d 820,821 (2d Dep't 20ll); People v. Saintilus,T4

A.D.3d 996,997 (2dDep't2010); Peoplev. Gonzalez,IST A.D.2d607,607 (2dDep't

1992); People v. Stamen, 163 A.D.2d 499, 499-500 (2d Dep't 1990); People v. Caban,

129 A.D.2d72l (zdDep't 1987); People v. Fiacco,172 A.D.2d994,996 (3d Dep't

l99l); People v. Caswell, 56 A.D.3d 1300, 1302-03 (4th Dep't 2008). These cases

provided trial counsel with notice of their obligation to make a timely motion to dismiss.

Unsurprisingly, the unexcused failure of an attorney to move to dismiss a

duplicitous indictment or count constitutes ineffectiveness. See, e.g., People v. Nuness,

19
266 A.D.2d934,934 (4thDep't 1999); Grady v. Artuz,931 F. Supp. 1048, 1063, 1070

(S.D.N.Y. 1996) (granting habeas relief for ineffective assistance of appellate counsel for

not complaining on appeal about trial counsel's failure to move to dismiss a duplicitous

indictment when "[t]here was clear [New York appellate] authority at the time").

B. Trial Counsel in this Case Were Ineffective for Failing to Challenge the
Indictment on Duplicity Grounds

Counts 3 through 87 of the indictment alleged that Mr. Weberman committed

discrete acts of sexual abuse against the complainant during a total period spanning from

December 5 , 2007 , to March 3l , 2010, with each count split into a one- or two-month

time frame. While neither the indictment nor the grand jury testimony was facially

duplicitous, the complainant's trial testimony quickly revealed that, save for two specific

instances, one allegedly occurring during her very first meeting with the defendant, and

the other allegedly occurring sometime in April or May of 2009, she did not recall any

specific incidents that could be correlated with specific counts. Rudin Aff. fll| 192-94

Meanwhile, the complainant testified that she saw defendant two to four times per week

over a continuous period ofthree years, and that the defendant sexually abused her every

time she saw him. Rudin Aff. tl 192. As such, her testimony made clear that multiple

instances of sexual contact had allegedly occurred during each time frame set forth in the

85 counts. This rendered Counts 3-87 duplicitous.

Trial counsel were ineffective for failing to move to dismiss these 85 counts.

Based upon the case law, the judge would have had no choice but to dismiss them. This

would have drastically reduced Mr. Weberman's sentencing exposure while simplifying

20
the trial and allowing him to concentrate on defending against three, instead of 88,

charges. At the very least, counsel had the obligation to preserve such a case-dispositive

issue for appeal.

Counsel had no strategic reason not to make such a motion. Present counsel asked

trial counsel, and the latter had no explanation for not moving to dismiss; to the contrary,

they mistakenly thought they had done so. Rudin Aff. fl 196. However, as the defense

admitted on appeal, the prosecution argued, and the Appellate Division held, the issue

was unpreserved. While trial counsel did "object," at the close of trial, to the verdict sheet

as "duplicitous, or multiplicitous," counsel then "clarified" that his objection was to

vagueness or lack of notice. Rudin Aff. lT 177. At no time did counsel move to dismiss

any count for duplicity.Id.

Counsel's omission clearly prejudiced the defense. It resulted in Mr. Weberman

receiving atotal sentence of 103 years rather than the maximum of 25 years he otherwise

would have faced. Moreover, as discussed in the next section, Mr. Weberman's trial on

88 counts, rather than 3, also had a strong spillover prejudicial effect on his ability to

defend against the non-duplicitous counts.

Regardless of whether Mr. Weberman's counsel otherwise provided competent

representation, a proposition this motion challenges, they were ineffective by failing to

make such a case-dispositive application. As we have shown, a single error of this

magnitude, in the absence of reasonable strategic explanation, constitutes ineffectiveness.

2l
c The Prejudice Caused by Counselns Failure to Raise a Duplicity Challenge
Spilled Over to the Non-Duplicitous Counts

The prejudice from trial counsel's failure to obtain dismissal of the 85 duplicitous

counts affected the fairness of the trial on the remaining three counts and requires a new

trial. The difficulty of defending against such a massive indictment is well known. For

instance, in People v. Shapiro,sO N.Y.2d 747 (1980), the accused was tried on three

indictments consolidated into one. The first indictment contained64 counts of criminal

sexual act (then called "sodomy" in the statute) based on conduct allegedly committed

over 17 months; the other two indictments, based on a single incident, contained far

fewer counts but included the more heavily penalized crime of promoting prostitution.

See id. at752-53; id. at767 (Gabrielli, J., dissenting). The Court noted that the first

indictment, with its "64 counts, carried an almost inesistible potential for prejudicing his

defense of the charges arising out of the [promotion-of-prostitution] inciderx." Id. at754;

see also id. at756 (describing as the "chief cause for concern" the "massive impact of the

[64 charges] on the solitary promoting count"); id. at755 ("Since prosecutions for sex

crimes, particularly ones regarded as deviate, tend . . . to invoke prejudicial

preconceptions among jurors, the joinder of the indictments created an impermissible

risk.").

Other New York courts have highlighted the danger of prejudice arising from a

colossal indictment. See People v. Lane,56 N.Y.2d 1, 8 (1982), citing with approval

Baker v. United States,40l F.2d958,974 (D.C. Cir. 1968) (warning of the accused being

"prejudice[d]" by the jury'soolatent feeling of hostility engendered by the charging of

22
several crimes as distinct from only one") (quoting Drew v. United States,33l F.2d 85,

88 (D.C. Cir. 1964)); see also United States v. Halper, 590 F.2d 422, 430 (2d Cir. 1978)

(quoting Drew for same proposition).

The Appellate Division has acknowledged the danger that the counts in an

indictment could be "so numerous as to tempt the jury to view the evidence cumulatively

and to convict defendant based on a perception that he was prone to commit the sort of

offenses charged." People v. Streitferdt,169 A.D.2d l7L,176 (1st Dep't I99I); see also

People v. Peterson, 42 A.D.zd 937,938 (lst Dep't 1973) (Murphy, J., dissenting) ("It is

inconceivable that the jury was not influenced by the sheer volume of the charges against

the defendffit."); People v. Cianciola, 86 Misc. 2d976,985 (Sup. Ct. Queens Co.1976)

(dismissing eighth count of eight-count indictment due to "potential prejudice to the

defendant that could flow from the sheer number of counts presented to a trial jury, even

though that danger is somewhat minimal here").

Federal courts, likewise, have noted that o'even when cautioned, juries are apt to

regard with a more jaundiced eye a person charged with two crimes than a person

charged with one." United States v. Halper,590F.2d422,43l (2d Cir. 1978) (quoting

united states v. smith, ll2 F .2d 83, 85 (2d Cir. 1940)). So clear is this danger that the

Department of Justice instructs its prosecutors that, "[i]n order to promote the fair

administration ofjustice, as well as the perception ofjustice, all United States Attorneys

should charge in indictments and informations as few separate counts as are reasonably

necessary . . . . To the extent reasonable, indictments and informations should be limited

to fifteen counts or less . . . ." United States Attorneys' Criminal Resource Manual,

23
http://wwwjustice.gov/usam/criminal-resource-manual-215-number-counts-indictments

(accessed Sept. 19, 2017).

In this case, the dozens of duplicitous counts not only potentially prejudiced the

jury about the extent of Mr. Weberman's alleged criminality, but also prejudiced him by

distracting both the defense and the jury from the weaknesses in the proof under the most

serious charge in the indictment, Count 1, as well as the lesser-included charge in Count

2. An element of both course-of-conduct counts is that the alleged victim must have been

ooless
than 13 years old" at the time of the conduct. Penal Law $$ 130.75(1)(b),

130.80(lXb)). Yet here, several witnesses testified that the complainant began her

counseling sessions in 2008, when she was already 13, and Mr. Weberman's business

records corroborated this. See Rudin Aff. l|fl 73,91,94, 122. Had Mr. Weberman gone to

trial only on Counts 1,2, and 88, the defense would have been able to focus the jury on

the weakness of the People's proof of the age element, which was an absolute

requirement for conviction. Instead, counsel, during a summation that addressed all 60

submitted counts, never articulated this defense. See Rudin Aff. fl 149. This perhaps was

understandable considering the defendant was facing so much time on the additional

counts, but this would not have been the case had counsel obtained the dismissal of these

defective charges

24
 POINT III
TRIAL COUNSEL DEPRIVED WEBERMAII OF EFFECTIVE
ASSISTAJ\CE BY FAILING TO OBJECT TO THE
PROSECUTION'S HIGHLY PREJUDICIAL CROSS.
EXAMINATION AND ITS SUMMATION ARGUMENTS IN
VIOLATION OF THE COURT'S SANDOVAZ AND MOLINEAX
RULINGS

A. The Law Regarding Sandoval and Molineux

Under New York law, a criminal defendant is entitled, on motion, to a pretrial

hearing on whether the probative value of prior uncharged criminal, vicious or immoral

conduct which the prosecution has knowledge of and intends to use attrial outweighs the

likely prejudicial effect. See People v. Sandoval, 34 N.Y.2d37l 0970; CPL $ 240.43.

Such notification by the prosecutor shall be made immediately prior to the

commencement ofjury selection..." (emphases added). Similarly, under People v.

Molineux,168 N.Y. 264 (1901), the court, prior to trial, must exercise its discretion

whether to permit uncharged crime or bad act evidence because the probative value of the

evidence outweighs the likely undue prejudicial effect.

A defense lawyer's failure to object pretrial to Sandoval or Molinea* evidence and

to request the requisite hearing has resulted in reversal for ineffectiveness. See, e.g.,

People v. Chapman,54 A.D.3d507,511 (3d Dep't 2008); Peoplev. l4/iggins,2l3 A.D.2d

965,965 (4th Dep't 1995). It is precisely the type of "single, egregious error that

deprive[s] defendant of the effective assistance of counsel." People v. Jian Long Shi, 43

Misc. 3d 91, 93,987 N.Y.S.2d 791,793 (2d Dep't 2014) (internal citations omitted). This

25
is particularly true when the case hinges on the credibility of the defendant's testimony.

See id.

Similarly, a defense attorney's failure to object to improper testimony regarding

prior uncharged crimes and bad acts that have not been allowed by a pretrial ruling is

ineffective. See, e.g., Chapman,54 A.D.3d at 511 (3d Dep't 2008); People v. Fleegle,

295 A.D.2d760,762-63 (3d Dep't 2002); People v. Case,150 A.D.3d 1634,1638 (4th

Dep't 2017); Wiggins,2l3 A.D.2dat965. This is because aprosecutor's violations of

Molineux or Sandoval can deprive the defendant of a fair trial. See, e.g., People v.

Badillo,2lS A.D.2d 811, 813 (2d Dep't 1995); People v. Marrow, 301 A.D.2d 673,675

(3d Dep't 2003); People v. Beasley,l84 A.D.2d 1003, 1003-04 (4th Dep't 1992), aff'd,

80 N.Y.2d e&r (ree2).

B. Counsel's Failure to Object to the Prosecutor's Repeated SandovallMolineux

Violations Were Ineffective

Defense counsel here were ineffective for failing to object to the prosecutor's

extraordinarily prejudicial and glaringly improper cross-examination and summation

oobad
about Mr. Weberman's charitable fraud and other alleged acts," which was not

permissible under the trial court's pretrial Sandoval and Molinezx rulings.

Regarding the not-for-profit fraud, Mr. Weberman was questioned for 10

transcript pages, during cross and re-cross, about his misuse of not-for-profit charitable

funds he had raised intended to help poor children, in order to pay for his own children's

school tuition and personal credit card bills totaling thousands of dollars, including,

apparently, the purchase of lingerie. Rudin Aff. flfl 126-30,204-05,208. This was

26
especially prejudicial in light of the prosecution's similarly improper suggestion that Mr.

Weberman had purchased underwear for several teenage girls whom the People

insinuated he had been molesting. See id. at flfl 109, 126,131, 160, 208,2l2.This

examination was devastating. Surprised, Mr. Weberman either denied or claimed he did

not recall various of the transactions, until he was shown documents which proved them,

and then had to admit what he had denied. See id. al{.n n6-29. This evisceration of Mr.

Weberman's credibility and character immeasurably enhanced the People's argument that

the jury should believe the complainant's accusations of sexual abuse over Mr.

Weberman's denials.

This was not the only highly-prejudicial, bad-act or negative character evidence

that the prosecution elicited in violation of the court's pretrial Sandoval and Molineux

rulings. The People also insinuated, during cross-examination of Baila Gluck and of Mr.

Weberman, that he had engaged in sexually inappropriate conduct with Gluck, as well as

with other girls whom he had allowed to sleep in his office from time to time. Id. atll
109-12,159,159 212-13. This directly violated the court's pretrial ruling precluding any

such propensity evidence.

The prosecutor also repeatedly elicited that Mr. Weberman lacked a counseling

license, implying that he was in violation of New York law, id. atflfl7s,136,159,211,

that he had failed to comply with Satmar modesty and other religious rules, id. atll35-
36, 163-64,216-17, and that he was linked in a criminal-type conspiracy with the Vad

Hatznius to cover up child sexual abuse and even to perpetrate it, id. at'lffl 104, 136, 162,

214,220-24. Counsel inexplicably and unjustifiably failed to object to each of these lines

27
of inquiry and argument, which plainly violated the court's pretrial ruling and should

have been precluded or sharply limited on that basis. While defense counsel did seek a

belated jury charge that practicing without a license is not a crime, and an instruction to

preclude jury consideration of the prosecution's cross-examination and summation

conceming Mr. Weberman's alleged charitable fraud, this failed to adequately protect

their client. Had the highly damaging evidence been kept out or limited in the first place,

there would have been no need for any limiting instructions. Meanwhile, the court

refused any such instruction regarding Mr. Weberman's non-licensure, while the

instruction he did give on the charitable fraud was woefully inadequate to undo the harm

that already had been done (see below) owing to defense counsel's inaction.

There was no strategic purpose for defense counsel's passivity. Nothing in Mr.

Weberman's non-licensure benefited him in the jurors' eyes, and there was nothing to be

gained in having the jury think he abused other girls. As for the not-for-profit evidence,

counsel admitted to the court they simply didn't think through that the testimony violated

the court's pretrial ruling, while admitting to each other that the explanation was that they

"froze." Rudin Aff. lTtl 172,207 . Freezing is not an excuse when the result is a 103-year

sentence for the ftozen lawyers' client.

C The Belated Instruction Given by the Court Was Insufficient to Cure the
Prejudice Concerning the Alleged Not-for-Profit Fraud

Although Mr. Weberman's counsel did eventually realize the severity of their

enor concerning the not-for-profit evidence and requested a limiting instruction, the

belated instruction the court agreed to was insufficient to cure the enormously prejudicial

28
effect it had on the trial. Rudin Aff. flfl 170-76.Indeed, the court, in refusing to actually

strike the testimony, acknowledged that the remedy it was granting was limited and

surely unsatisfactory to the defense.Id. atn 176.

It is an "unmitigated fiction" that "prejudicial effects can be overcome by

instructions to the jury.. ." Bruton v. United States,39I U.S. 123, 129 (1968) (quoting

Krulewitchv. United States,336 U.S. 440, 453 (1949) (Jackson, J., concurring)). The

inadequacy of limiting instructions to protect against harm from unduly prejudicial bad-

act evidence was the principal rationale for requiring Sandoval and Molineuxhearingsto

be held pretrial. See Sandoval,34 N.Y.2d at377 ("cross-examination with respect to

crimes or conduct similar to that of which the defendant is presently charged may be

highly prejudicial...despite the most clear and forceful limiting instructions..."); People

v. Ventimiglia,52 N.Y.2d 350,361-62 (1981) (noting the "questionable effectiveness of

cautionary instructions").

If limiting instructions always eliminated undue prejudice, "then the prosecution

would be in a position to violate the rules of fair conduct with impunity, secure in the

thought that the verdict, if one of guilt, would not be upset as long as the judge simply

directed the jury to disregard what had occurred." People v. Carborano,30l N.Y. 39,42-

43 (1950) (internal citations omitted). Limiting instructions may not "unring the bell" and

cure the "poisonous impact of the prosecutor's intentional misconduct." People v. Grffin,

242 A.D.zd70,73 (lst Dep't 1998) (intemal quotation marks omitted); see also, e.g.,

People v. Cavallerio,Tl A.D.2d338,342 (1st Dep't 1919) (noting the "devastating"

effect of presenting unproven allegations of sexual misconduct, and that "no amount of

29
curative instruction could sufficiently erase from the jurors' minds the damaging

statements presented"); People v. Hess,234 A.D.2d925,926-27 (4th Dep't 1996)

(reversing for prosecutor's cross-examination questions relating to uncharged incidents in

violation of the court' s Sandoval/Ventimiglia hearings).

In this case, no limiting instruction could erase from the jury's mind the

destruction of Mr. Weberman's credibility: the depiction of him as a man who would

steal from the poor, defraud the government out of taxes, serially abuse vulnerable young

Hasidic womeq and conspire with other leaders of his community to cover up such

abuses, all accomplished through his operation of an unlicensed counseling business.

Having allowed the impermissible impeachment, the court did not strike the testimony,

but merely instructed the jury to disregard the People's cross-examination and argument.

Still permissibly before the jury was Mr. Weberman's weak denials on redirect and re-

redirect and his attorney's equally weak argument in summation that it was nothing more

than an accounting eror. The prosecution's ambush prevented the defense lawyers from

preparing Mr. Weberman to explain his behavior, assuming the court, in a pretrial ruling,

permitted any of this examination at all. Mr. Weberman could not possibly get a fair trial

under these circumstances. Because his own attorneys inexcusably allowed all this to

occur on their "watch," his right to counsel was violated and he should receive a new

trial.

30
 POINT IV

WEBERMAN WAS DEPRIVED OF EFFECTIVE ASSISTAIICE OF

COUNSEL DUE TO COUNSEL'S FAILURE TO REQUEST
DISCLOSURE OF THE COMPLETE JBFCS THERAPY RECORDS
AS ROSARTO OR CPL $ 240.20 MATERTAL, OR AS EVTDENCE
USED BY A WITNESS TO REF'RESH HER RECOLLECTION, AND
TO OBJECT TO THE PROSECUTION'S SUPPRESSION OF THE
MATERIAL

A. The Law Governing Rosario and CPL $ 240.20 Disclosure

The Rosario rulq see People v. Rosario,g N.Y.2d 286 (1961), codified in CPL

S 240.45, provides that "[a]fter the jury has been swom and before the prosecutor's

opening address...the prosecutor shall...make available to the defendant...[a]ny written

or recorded statement...made by a person whom the prosecutor intends to call as a

witness attrial, and which relates to the subject matter of the witness's testimony." These

statements must be provided before the prosecutor's opening remarks. CPL 2a0.a5Q);

People v. Lebovits, 94 A.D.3d 1146,Il49 (2dDep't 2012). The statement does not have

to have been made to a law enforcement official or prosecutor. See People v. Perez,65

N.Y.2d 154, 158-59 (1985). Nor does the statement have to be impeaching or exculpatory

in nature in order for the disclosure obligation to be triggered. People v. Consolazio,40

N.Y.2d 446,454 (t976)

The Rosario rule exists so that a criminal defendant has a fair opportunity to

o'a
review prosecution witness' prior statements ... for impeachment purposes before

commencing his cross-examination." People v. Poole,48 N.Y.2d 144,148 (1979).

"The principal consideration for determining whether prosecutors have a

fairness obligation under Rosario to tum over various materials focuses on whether these

31
items actually are in or subject to the possession or control of the particular prosecution

office." People v. Kelly,88 N.Y.2d 248,252 (1996).

If the prosecution fails to disclose Rosario material, the defendant's conviction

must be reversed if "there is a reasonable possibility that the non-disclosure materially

contributed to the result of the trial." CPL $ 240.75.

Although the prosecution has the duty to disclose Rosario material regardless of

whether the defense requests it, a defense attomey nevertheless has an independent duty

to request Rosario material that he knows hasn't been provided in order to ensure

production or to preserve the issue for appeal, and the failure to do so, if sufficiently

prejudicial, will invalidate any conviction due to ineffectiveness.,See, e.g., People v.

Karamanites, 104 A.D.2d 899 (2d Dep't 198a); Flores v. Demskie, 215 F.3d 293,304 (2d

Cir. 2000); Mayo v. Henderson,13 F.3d 528, 536 (2dCir.1994).

Apart from the Rosario obligation, CPL $ 240.20 mandates that, "upon a demand

to produce by a defendant...the prosecutor shall disclose to the defendant," inter alia,

"[a]ny written report or document, or portion thereof, concerning a physical or mental

examination...relating to the criminal action or proceeding...which was made by a

person whom the prosecutor intends to call as a witness at trial, or which the people

intend to introduce attrial;'CPL $ 2a0.20(l); CPL $ 240.20(l)(c). CPL $ 240.20(1Xh)

also requires disclosure of "[a]nything required to be disclosed, prior to trial, to the

defendant by the prosecutor, pursuant to the constitution of this state or of the United

States." Like Rosario,the materials must be disclosed whether or not they are

exculpatoryorimpeaching. SeePeoplev.DaGata,86N.Y.2d40,45 (1995). Inthiscase,

32
no request was necessary because the D.A.'s Office promised "open file" or voluntary

disclosure of all discoverable material

B Counsel's Failure to Request the Complainantos JBFCS Therapy Records as

Rosario or CPL $ 240.20 Materialo or as Evidence Used by a Witness to
Refresh Her Recollection

Mr. Weberman's counsel were ineffective for failing to request full disclosure of

the complainant's therapy records maintained by the Jewish Board of Family &

Children's Services ("JBFCS"). The defense arguably was entitled to these records as

Rosario material, as expert or opinion discovery under CPL $ 240.20(I)(c), or on the

basis that the witness had reviewed such records to refresh her recollection. Upon such a

request, the People might well have voluntarily produced them, having previously

obtained a portion of the records pursuant to a HIPAA release from the complainant and,

hopefully, mindful of their obligation to afford the defendant afair trial. Or if not, the

defense would have been able to seek a favorable ruling from the court. Failing both, the

defense could have issued a subpoena. To not even request the disclosure was

inexcusable, and ensured the defense would not receive them and would have to examine

the witnesses in question largely in the blind. See, e.g., People v. Oliveras, 90 A.D.3d 563

(1st Dep't 20ll), aff'd, 2I N.Y.3d 339 (2013) (counsel ineffective for not obtaining

defendant's psychiatric records where case hinged on the voluntariness of his

confession).

Prior to trial, the prosecution disclosed the therapy records from December 2,

2010, when the complainant allegedly first claimed to Fried that she had been molested,

through February 16,2011, when she named Mr. Weberman as her abuser, Rudin Aff. lT

JJ
230, but this was apartial and plainly insufficient disclosure under Rosario and the

discovery provisions of the CPL. At trial, Fried testified extensively about the

complainant's statements, and mental and emotional condition, during the entire course

of therapy. See id. at flfl 76-86. She also gave opinion-type testimony, as a mental health

expert, about the complainant's apparent stress disorder and its likely cause. See id. atll
78-79,82-85. Meanwhile, the complainant, in her testimony, testified about the subject

matter of her therapy, as well as various events in the case that she certainly would have

discussed in her therapy sessions. A likely additional topic in therapy was the

complainant's mother, another important People's witness. The defense had every reason

to request disclosure of the additional records that they knew existed, and no reason not

to make the request.

While there are several cases in New York that have declined to find that

counseling or social services records we Rosario material on the grounds that they are not

in the possession or control of the People, see People v. Tissois, T2 N.Y.2d 75 (1988);

People v. Berkley,157 AD.zd 463 (lst Dep't 1990); Sabol v. People,203 A.D.2d369 (2d

Dep't 199$; People v. Reddick,43 A.D.3d 1334 (4th Dep't 2007), in these cases, unlike

here, the patienVcomplainant had not consented to disclosure through a HIPAA release,

there hadn't akeady been partial disclosure, and the patient's therapist didn't testify about

the content ofthe records and her professional opinions and conduct based upon them

Even if the Brooklyn D.A.'s office refused a defense request, even if the court

declined to ovemrle that refusal, the defense also had the ability to subpoena them. In

Sabol and Reddick,the court denied the defendant's subpoena duces tecum for the

34
records because they were arguably privileged and the defendant had not shown they

likely contained material relevant to the prosecution. See Sabol, 203 A.D.2d at 369-70;

Reddick,43 A.D.3d at 1335. But here, in contrast, the prosecution had a HIPAA release

for the complainant's therapy records, and had already disclosed a portion of the records

to the defense. Fried's and the complainant's testimony also made it clear that the pre-

December therapy records were relevant, where Fried and the complainant testified to the

contents of their pre-December therapy sessions, and complainant's mental state during

those sessions.

Even if counsel were concerned that the complainant would object to the release

of the full therapy records to the defense, this was no reason not to make the attempt to

obtain them. Counsel could have made the argument that the complainant had waived any

privilege as to the records. See, e.g., People v. Pagan, 190 Misc. 2d 474,475-76 (Sup. Ct.

Kings Co.2002) (complainant waived privilege as to her medical records in domestic

violence case because she had freely spoken about her medical condition to law

enforcement, the D.A.'s Office, and the grand jury, and had waited over a year to assert

the privilege at trial); People v. Lowe,96 Misc.2d 33,37-38 (Crim. Ct., Bronx Co. 1978)

(directing disclosure of complainant's medical records, where complainant had testified

about his mental condition).

At the very least, the defense should have asked the court to conduct an in camera

review and disclose those therapy records it deemed relevant to the case, as the court did

in People v. McCray, 102 A.D.3d 1000 (3d Dep't 2013), or should have done in People v.

Bugayong,IS2 A.D.2d450,451 (lstDep't 1992),and Peoplev. Thurston,2}g A.D.2d

35
916 (4th Dep't 1994). The so-ordered subpoena the People used to obtain the post-

December records, which contains a judicial finding that the interests ofjustice

outweighed the complainant's interest in privacy (which she had waived in any event),

indicates that, had defense counsel requested the therapy records, the court would have

granted its request. Rudin Aff.n266.

A case from the First Department is particularly instructive.ln People v. Rutter,

202 A.D.2d 123 (1st Dep't 1994), opinion adhered to on reargument, 2l1 A.D.2d 605

(lst Dep't 1995), the court imputed possession of Rosario/Brady material to the Bronx

prosecutor, where the material was in the actual possession of the Philadelphia police

department. The court relied on the access to the records that the Philadelphia police had

given the Bronx D.A. Under this circumstance, it held, the Bronx D.A. "was not free

simply to take what he found useful from them and consign the rest to oblivion." Rutter,

202 A.D.2d at 131. Rather, the court held, the prosecutor 'ohad an obligation...to ensure

the fairness of the ensuing trial" by obtaining and disclosing the records. 1d

Counsel here also should have demanded the records pursuant to CPL

$ 240.20(1)(c) as soon as Fried began giving psychological opinion testimony. Fried

testified that she perceived the complainant to be exhibiting signs of trauma, and

explained that for that reason she had administered a PTSD assessment test. Rudin Aff.

fl179,82-83,230,234. She then went on to testify regarding her diagnosis that the

complainant had PTSD, based upon the results of the assessment test and her own

"clinical impressions," and her opinion about the triggering cause. Id. atflfl 85, 234. T\e

mental health assessments that Fried conducted of the complainant, including the PTSD

36
assessment test, and the notes Fried took containing her observations and evaluations of

the complainant's mental and emotional state, constitute the type of ooreport or

document...concerning a...mental examination" that must be disclosed under CPL

S 240.20(l)(c). See People v. Cubero, 181 Misc. 2d 431, 433-34 (Sup. Ct. Kings Co.

1999) (witness statements and reports reviewed by prosecution witness in forming his

opinion as to defendant's mental state at time of crime was "precisely the kindf] of

material that must be turned over" under CPL $ 240.20(l)(c)). The contents of the

therapy records were directly relevant to significant issues in the prosecution, and they

were made by Fried and the complainant, who were both witnesses attrial.

Fried also testified that she had reviewed her therapy records, including the pre-

December records, to refresh her recollection for trial. "It is well-settled law that an

adversary has a right to inspect any writing used by a witness to refresh his recollection

while on the stand." Doxtator v. Swarthout,3S A.D.2d782,782 (4th Dep't 1972)

(citation omitted); Chabicav. Schneider,2l3 A.D.2d 519,581(2d Dep't 1995). This is

because "[t]he right of apafiy to protection against the introduction against him of false,

forged or manufactured evidence, which he is not permitted to inspect, must not be

invaded by a hair's breadth." Doxtator,3S A.D.2d at782 (internal quotation marks and

citation omitted). It is reversible error to deny the defendant the opportunity to inspect

notes or records that a witness used to refresh his or her recollection at trial on an issue of

significance. See, e.g., People v. Gezzo,307 N.Y. 385,394 (195a); Chabica,2l3 A.D.2d

at 580; People v. Woodrow,18 A.D.2d 1050, 1050 (4th Dep't 1963).

37
 This is especially true where a health care professional has reviewed records

regarding the treatment she provided in preparation for her testimony. In such a case, she

is'orequired to divulge that fact and turn over the records, whether or not [her] review

was expressly admitted to be for purposes of refreshing [her] recollection..." Crawfordv.

Lahiri,250 A.D.2d722,123 (2d Dep't 1998). This caselaw certainly put Mr.

Weberman's counsel on notice that he was entitled to, and indeed should have, demanded

to inspect the pre-December therapy notes once Fried stated that she had reviewed them

in preparation for her trial testimony.

As discussed below in Point V(B) and VIII(B), infra, counsel's failure to request

the JBFCS therapy records, and in particular the pre-December records, was highly

prejudicial to Mr. Weberman in that they contained significant exculpatory and

impeachment evidence. Counsel's ineffectiveness deprived Mr. Weberman of a fair trial,

and his conviction must be reversed on this basis.

POINT V

TRIAL COUNSEL DEPRIVED WEBERMAII OF EFFECTIVE

ASSISTAI{CE OF COUNSEL BY IMPROPERLY SHIFTING THE
BURDEN OF PROOF TO THE DEFENSE

Remarks by a prosecutor that shift the burden of proof to the defense may deprive

the accused of a fair trial. See, e,g., People v. Spann,82 A.D.3d 1013, 1015 (2d Dep't

20ll) (reversing conviction on this basis); People v. Pagan,2 A.D.3d 879, 880 (2d Dep't

2003) (same); People v. Iilalters,25I A.D.2d 433, 434 (2d Dep't 1998) (same). A

defense attorney's failure to object to burden-shifting by the prosecutor or the court may

also contribute to a finding that the lawyer provided ineffective assistance of counsel.

38
See, e.g., People v. Dombrowski, 163 A.D.2d 873,814 (4th Dep't 1990); People v.

Andrew ,S., 108 A.D.2d 935, 939 (2d Dep't 1985). See Dillon v. Weber,737 N.W.2 d 420,

429 (S.D. 2007) (finding counsel ineffective in part for "sending mixed and confusing

signals to the jury about how they were to weigh the evidence in the case" when he said:

"[T]he rules are all different in a rape case. Because now it's you got a burden to come

and disprove it. Come on, disprove it. Disprove it.").

In the present case, the accused was prejudiced by the shifting of the burden of

proof both in the openings and in summation-but the prejudice was gravely

compounded by the fact that it was Mr. Weberman's own counsel who made the

improper remarks.

In his opening statement, Mr. Weberman's lawyer told the jury-contrary to the

judge's instruction that the defendant had no burden of proof and was presumed

innocent-that "this case is different." Rudin Aff. fl 32.He went on:

And, the reason that this case is different, from our view, is that we have a Hassidic
Jew being charged by the prosecutors with horrible, disgusting, abominable crimes.
And, when you look at him, you see he dresses differently, he comports himself
differently, he acts differently than the rest of the citizens here. . . .

. . . [W]e are worried because it is singular, singular situation, that he may have
rubbed people the wrong way not him, but his entire community. And, as a result
-
of that, we believe that we have to take a completely dffirent approach. We can't sit
here and rely on the presumption of innocence) one of the cornerstones and bedrocks
of this great nation. We can't rely on the Judge to keep reminding you that we don't
have to prove anything. We have to do a lot more.

. . . [W]e need to make sure that fthe prosecutor's] questions that he poses to you
and the questions that you are going to be asking as to why these accusations are
made, are answered. lVe need to show you what has happened here. We need to make
sure that you understand how the [sic] Nechemya Weberman an innocent man ends up
sitting at this table facing these abominable, disgusting, terrible charges.

39
Opening Statements Tr. 16-17 (emphases added).

A few moments later, defense counsel continued in this vein, prompting an

objection from the prosecution to protect Mr. Weberman from his own counsel and have

defense counsel's prejudicial remarks against his own client corrected by the court:

It may not be all pretty and nice, butwe do have avery heavy burden. And, we
have ajob to make sure-

MR. O'DONNELL: Objection.

MR. G. FARKAS: That the-

THE COURT: . . . I want to make it very clear that the defense has no
heavy burden in this case. The defense has no burden to prove or disprove
anything. The burden of proof in this case lies with the government, the
prosecutor, the assistant district attorney. So, certainly, I just want to make it clear
that the defense has no burden.

Id. at 19. Defense counsel then told the jury:

... now, maybe for the second time in the 40 years that I have been doing this, I'm
going to put this before you and it is a promise. Nechemya Weberman is going to
take the witness stand. He is not going to rely on the presumption of innocence.
He's not going to rely on thefact that the People have the burden of proof,

Id. at23 (emphasis added).

In summation, Mr. Weberman's attorney at one point called a piece of evidence a

"smoking gun of innocence." Rudin Aff. 1T 155. The court was forced to correct counsel,

telling the jurors that it would not be deciding "innocence," that the defendant was

presumed innocent, and reminding them that their "ultimate decision will be whether the

People have proved every element of their case beyond a reasonable doubt." 1d.

Regardless of the court's attempt to correct counsel, their remarks, taking on a

burden of proof and negating the presumption of innocence, had to have left an

40
impression on the jury. It may have convicted Mr. Weberman for failing to prove his

innocence to their satisfaction, as opposed to holding the People to their constitutional

burden of proof beyond a reasonable doubt standard. Counsel's highly prejudicial

remarks deprived Mr. Weberman of afair trial even more surely than if they had been

uttered by the prosecutor.

POINT VI

THE PEOPLE'S FAILURE TO DISCLOSE THE COMPLETE

THERAPY RECORDS VIOLATED THEIR STATUTORY
DISCOVERY OBLIGATI ROSARIO AND BRADY

A. The Prosecution's Discovery Obligations Under BradyrRosario, and CPL

s 240.20

Under Brady v. Maryland,373 U.S. 83, 87 (1963), the prosecution's failure to

disclose evidence favorable to an accused "violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution." Both exculpatory and impeachment evidence are deemed "favorable" to the

defense under Brady. See Strickler v. Greene, 527 U.S. 263,290 (1999).

To establish a Brady violation, a defendant must show (1) that the evidence in

question was exculpatory or impeaching, (2) that the prosecution suppressed it, whether

intentionally or inadvertently, and (3) that the evidence was material in that there is a

"reasonable probability" that, had the evidence been disclosed, the result of the

proceeding would have been different. See id. A reasonable probability means "that the

likelihood of a different result is great enough to undermine confidence in the outcome of

the trial." Smith v. Cain, 132 S. Ct. 627, 630 (2012) (internal quotation marks and citation

4l
omitted). "The question is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its absence he received a

fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v.

Whitley,514 U.S. 419,434 (1995) (intemal citation omitted).

The defense is entitled to rely upon the good faith and the completeness of the

prosecution's Brady disclosures . See Banks v. Dretke, 540 U.S. 668, 695 (2004)

(defendants do not have to "scavenge for hints of undisclo sed Brady material"); Strickler,

527 U.S. at289; Shi Wei Suv. Filion,335 F.3d 119,128 (2dCir.2003) ("conscientious

counsel can rely on prosecutors to live up to their obligations"); People v. Garcia,46

A.D.3d 46I, 463 (lst Dep't 2007) (citing Banks, supra); see also, e.g., People v. Ramos,

201 A.D.2d 78, 86 (lst Dep't 1994) (finding Brady violation where prosecution failed to

disclose material documents, where defense counsel did not directly subpoena them in

reliance of the prosecutor's promise to obtain and turn them over).

In New York, if the defense has put the prosecutor on notice that it is interested in

specific Brady evidence or information, the failure to disclose it is "seldom if ever

excusable," arrd materiality is instead measured by whether there is a'oreasonable

possibility" that the failure to disclose "contributed to the verdict." People v. Vilardi, T6

N.Y.2d 67 ,76-77 (1990). The "reasonable possibility" test is triggered not only when the

defense affirmatively makes a particularized request, but also if the defense alerts the

prosecution to its specific interest in particular material. See People v. Scott,88 N.Y.2d

888,890-91 (1996).

42
 The prosecution is required to disclose Brady material that "is within the

prosecution's custody, possession, or control." People v. Garrett,23 N.Y.3d 878, 886

(2014) (citations omitted). "What constitutes possession or control for Brady purposes

has not been interpreted narrowly, and it is beyond cavil that the government's duty to

disclose under Brady reaches beyond evidence in the prosecutor's actual possession." ld.

at 886-87 (intemal quotation marks and citations omitted). So, for example, the police's

possession of Brady material may be imputed to the prosecution, notwithstanding the

prosecutor's own lack of knowledge. See id. at 887. This is because "the individual

prosecutor has a duty to leam of any favorable evidence known to the others acting on the

government's behalf in the case.. ." Kyles v. Whitley,514 U.S. 4I9,437 (1995)

Furthermore, prosecutors should not deliberately avoid knowledge that would lead

to exculpatory material in order to sidestep their Brady obligation. Hollmanv. Wilson,

158 F.3d 177, 181 (3d Cir. 1998) (recognizing prosecutor's duty to seek readily-

accessible Brady material); Careyv. Duch,yorth,738F.2d875,878 (7th Cir. 1984) ("a

prosecutor's office cannot get around Brady by keeping itself in ignorance.. ."); United

States v. Quinn, 537 F. Supp. 2d99, 1 10 (D.D.C. 2008) ("The govemment cannot shield

itself from its Brady obligations by willful ignorance or failure to investigate"); see also

United States v. Brooks,966 F.2d 1500, 1503 (D.C. Cir. 1992) ("an inaccurate conviction

based on government failure to turn over an easily tumed rock is essentially as offensive

as one based on government non-disclosure.") (citation omitted).

As discussed in Point IY, supra, the prosecution also has a duty under People v.

Rosario,g N.Y.2d 286 (1961), and CPL S 240.45, to provide the defense with prior

43
statements of trial witnesses. A defendant's conviction must be reversed if there rs a

"reasonable possibility" that a prosecutor's failure to disclose Rosario material might

have affected the outcome of the trial.

Meanwhile, CPL 5 240.20, unlike Brady or Rosario, is a "mandatory directive"

created by statute, rather than by the constitution. People v. DaGata, 86 N.Y.2d 40,44

(1995). Its approach, in "permit[ting] a view of the opponent's evidence," is slightly

different than that of Brady, which "relate[s] to constitutionally guaranteed access to

exculpatory information," and that of Rosario,which focuses on "fundamental fairness

through a review of any prior statement made by a witness." Id. CPL $ 240.20 imposes

broad pretrial discovery obligations on parties in order to "minimiz[e] the tactical and

often unfair advantage to one side, and increase[] to some degree the opportunity for an

accurate determination of guilt or innocence." People v. Copicotto,50 N.Y.2d 222,226

(1980) (internal citation omitted). This, in turn, "contributes substantially to the fair and

effective administration ofjustice." Id. CPL $ 240.20 imposes a greater discovery

oomake
obligation than do Brady or Rosario by requiring the prosecution to a diligent,

good faith effort to ascertain the existence of demanded property and to cause such

property to be made available for discovery where it exists but is not within the

prosecutor's possession, custody or control; provided, that the prosecutor shall not be

required to obtain by subpoena duces tecum demanded material which the defendant may

thereby obtain." CPL $ 240.20(2) (emphasis added).

The appropriate sanction for a discovery violation lies within the court's discretion

and ranges from excluding the evidence that was suppressed, to preventing the calling of

44
witnesses, to "any other appropriate action." People v. Kelly,62 N.Y.2d 516,521(198a);

CPL $ 240.10(I).In fashioning a remedy, "the degree of prosecutorial fault surely may

be considered, but the overriding concern must be to eliminate any prejudice to the

defendant while protecting the interests of society)' Kelly,62 N.Y.2d at 520. A defendant

is entitled to a new trial if the discovery violation'ohas caused such substantial prejudice

to defendant such that he or she has been denied due process of law." People v. Davis,52

A.D.3d 1205,1206-07 (4th Dep't 2008) (reversing conviction for prosecution's failure to

tum over firearm examination report under CPL $240.20(1)(c) where report was relevant

to bullet trajectory and could have been used to determine whether further inquiry might

possibly lead to favorable information). See also, e.g., People v. Dudley,268 A.D.2d 442,

443 (2d Dep't 2000) (reversing where People failed to provide defendant with his arrest

photograph under CPL $ 240.20(l)(d)); People v. Fields,258 A.D.2d 809, 810 (3d Dep't

1999) (reversing where People failed to disclose defendant's prior statements to

undercover officer under CPL $ 240.20(1X1)).

B. The Prosecution Failed to Meet Its Discovery Obligations Under Brady,

Rosario, and CPL S 240.20

As discussed in Point lY, supra, the JBFCS therapy records constituted Rosario

material, since they contain relevant pretrial statements by the complainant and Fried,

who both testified at trial. And they were in the People's constructive, if not actual,

possession. The patient-complainant and her therapist were completely cooperative with

the prosecution, and the patient had given a HIPAA release allowing the People to obtain

her records for use in this case

45
 It is hard to believe that in this important, complex, serious, and high-profile case,

the D.A.'s Office and detectives did not review, or at least discuss with the therapist the

contents of, their main witness's full treatment records knowing that they directly related

to the subject matter of the witness's testimony and whether those witnesses were

testifying truthfully. Clearly, the prosecution knew that the information that was

contained within the complainant's therapy records was so material to the case that the

judge who signed their so-ordered subpoena had found that "[t]he interests ofjustice

significantly outweigh[ed] the need for the patient's confidentiality." Rudin Atf.n266.

Their request for only of a narrow portion of those records either reflected a desire to

cover up unfavorable evidence to the prosecution, or to consciously avoid knowledge of

evidence that might undercut their case. Neither is a defense to the People's Rosario,

Brady, and discovery obligations. To the extent the reason for the non-disclosure is

material to the court's determination, a hearing should be held to resolve the question.

The People's violation easily meets the State prejudice standard under Rosario and

Vilardi of a reasonable possibility of a more favorable outcome and the federal

materiality standard as well. As discussed in more detail in Point YIII, infra, and in the

Rudin Affirmation, the undisclosed pre-December therapy records, if disclosed, would

have been devastating to the complainant's and Fried's credibility, as they contained both

impeaching and exculpatory material with regard to both witnesses. For example, Fried

testified attrial that the complainant was not suicidal at any time during the course of

therapy. Rudin Aff.1T.]T78,230. However, Fried's therapy notes clearly indicate that the

complainant admitted she was suicidal multiple times and had cut and starved herself.ld

46
atfl1240,247,249-5I,253. The records also impeached Fried's testimony that the

complainant's PTSD and signs of trauma were c4used by Mr. Weberman's sexual abuse,

and that the arrest of, and subsequent breakup with, the complainant's boyfriend would

not have been sufficient to cause PTSD. Contrary to Fried's testimony, the records

demonstrated significant potential, other causes of the complainant's PTSD, including the

severe emotional abuse by the complainant's mother, and also how upset the complainant

was, with thoughts of suicide, following her boyfriend's arrest.Id. atfln245,250,253.

The records also contained prior statements by the complainant that directly

contradicted her testimony that she had been sexually innocent at the time she began

being abused by Mr. Weberman. The pre-December therapy records contained statements

that the complainant had been sexually active with boys [plural] since she was twelve

years old, and that she had protected sex with partners [plural], although the complainant

had never claimed attrial to have used any protection with Mr. Weberman or to have

engaged in vaginal intercourse with him. Id. atnn242,253,251.Indeed, the information

in the records concerning her precocious sexual history proved false her testimony that

she had no clue as to why she was bleeding after alleged digital penetration and that she

had no sexual experience (apart from her allegations against Mr. Weberman) until she

met her boyfriend Jeremy Solomon when she was 15.

Additionally, the pre-December therapy records contained evidence proving that

the complainant had started seeing Mr. Weberman when she was already thirteen years

old.Id. at11246,256. This was an absolute defense to the B-felony course of conduct

charge (Count 1), for which Mr. Weberman ultimately received 25 years.

47
 The "reasonable possibility" standard of materiality under Vilardi applies because

the defense put the prosecution on notice of its interest in the information contained in the

records. While defense counsel never expressly requested disclosure of the JBFCS

therapy records, the defense still put the prosecution on notice that it had a specific

interest in any information relating to the complainant's pre-disclosure mental or

emotional state, when it sought to obtain the court file in the prosecution of Jeremy

Solomon for statutory rape. Id. aIn227 . Specifically, the defense sought materials in the

Solomon file that supported the defense theory that she was suicidal and was distressed

for reasons unrelated to any alleged sexual abuse by Weberman. Id. Additionally, the

People were required to produce such Brady material under its open file discovery

agreement.

The prosecution's suppression of the pre-December therapy records also was

material under the federal Brady materiality standard. The records not only significantly

impeached the complainant-the only witness who claimed knowledge of abuse-but

also her therapist Fried, who implicitly validated her claims. "[W]hen the reliability of a

particular witness may be determinative of innocence or guilt, a 'new trial is required if

the false testimony could. . .in any reasonable likelihood have affected the judgment of the

jury.. ."' United States v. Seijo, 514 F.2d 1357 , 1364 (2d Cir. 1975) (quoting Giglio v.

United States,405 U.S. 150, 154 (1972)). The records also contained exculpatory

information, as discussed above and in Point YIII, infra, concerning the complainant's

history of desperate acts to strike back at individuals she believed had betrayed her, Mr.

Weberman's referral of her for therapy, and other causes of her apparent distress

48
 The prosecution also failed its discovery obligations under CPL $ 240.20.The

prosecution was required to disclose the records under CPL 240.20(1Xh) because, as

Brady and Rosario matefial, they had a constitutional obligation to disclose it. The

prosecution was also aware that the defense had demanded, and People had a duty to

disclose, any records conceming a mental examination related to the case. As discussed

in Point IY, supra, Fried's testimony on her observations of the complainant and her

diagnosis of PTSD constitutes the type of "mental examination" contemplated in CPL

5 240.20(l)(c), and her testimony put the contents of the JBFCS therapy records squarely

at issue.

Any argument by the prosecution that it did not possess or control the therapy

records should be rejected. First, as we have argued, the prosecution had at least

constructive possession of the records. And second, under CPL $ 240.20(2), they were

required to oomake a diligent, good faith effort to ascertain the existence of demanded

property and to cause such property to be made available for discovery where it exists but

is not within the prosecutor's possession, custody or control..." The second clause of

CPL $ 240.20(2), which states that "the prosecutor shall not be required to obtain by

subpoena duces tecum demanded material," does not apply here; the prosecution had

already subpoenaed at least some of the therapy records. The prosecution was not entitled

to deny the defendant access to the material merely because of "their reluctance to seek

[it] themselves." People v. DaGata, 86 N.Y.2 d 40, 45 (1995) (citing CPL $ 240.20).

Having learned that the entirety of the therapy records contained materially relevant

49
information, the prosecution could not then seek to evade their disclosure obligations by

cherry picking which records to request.

POINT VII

PROSECUTORIAL MISCONDUCT DENIED WEBERMAN A FAIR

TRIAL

We discuss in this point a series of misrepresentations and Brady violations by the

People. First, the People engaged in misconduct that denied Mr. Weberman a fair trial by

introducing false or misleading testimony in the grand jury to cause that body to return an

indictment on 85 counts for which there was no evidence.

Second, the People misled the court about the facts underpinning its decision to

preclude the defense from introducing exculpatory information in the controlled

telephone calls between the complainant and the defendant. While the People claimed

that the complainant's statements in those calls were untrue and she was told to utter

them by Det. Bruno solely to try to elicit admissions from Mr. Weberman, new evidence

shows this was untrue, and thus her statements in the tapes should have been admitted.

Third, the People suppressed her statements to Det. Bruno that she knew her

family owed Mr. Weberman a large sum of money, and this supported the defense that

this provided her an additional motive to lie.

Fourth, the prosecutor failed to disclose his threat to Det. Bruno of adverse

employment consequences if he undercut the prosecution in his testimony.

50
 Fifth, the People presented, and failed to correct, false testimony by the

complainant and her mother that they had no financial stake in the case, which was belied

by their subsequent filing of a civil damages lawsuit.

And sixth, the People suppressed the complainant's statements from the Solomon

file, which were material to the issue of her mental state and whether the arrest of her

boyfriend, and their subsequent breakup, could have been a sufficient cause to explain the

signs of trauma attributed to Mr. Weberman's alleged abuse of the complainant.

A. The Prohibition Against Prosecutorial Misrepresentations and the Use of

False and Misleading Testimony

It is well-established that prosecutors are not only advocates, but quasi-judicial

officers who "must deal fairly with the accused and be candid with the courts." People v.

Steadman, S2 N.Y.2d 1,7 (1993). Because of this dual role, a prosecutor who presents a

case to the grand jury is obligated not only to seek an indictment, but to also "see that

justice is done." People v. Pelchat,62 N.Y.2d 97,105 (1984).

Prosecutors may not engage in fraud, misrepresentation, or dishonesty in

procuring a conviction, including in the grand jury. See CPL $ 440.10 (1)(b); see also

New York Rules of Professional Conduct,22 NYCRR 1200.0, Rule 8.4(c). A

prosecutor's fraud upon a court or the jury can constitute such egregious misconduct that

it is a sufficient basis for overturning a conviction. See CPL $ 440.10(1)(b); see also, e.g.,

People v. Hill,5 N.Y.3d 772,773 (2005) (affirming reversal where prosecutor gave

inaccurate and misleading answer to grand jury's question to the prosecutor); accord

People v. Wright,25 N.Y.3d 769,780,784 (2015) (finding ineffective defense counsel's

5l
failure to object to prosecutor's misrepresentations to the jury about the DNA evidence);

People v. Seeber,94 A.D.3d 1335, 1338 (3d Dep't 2012) (reversing under CPL

440.10(1Xb) where police forensic scientist, who wasooa person acting on behalf of the

prosecution," created misleading, inculpatory fiber analysis report that caused defendant

to plead guilty, even though prosecutor was unaware of the misrepresentation).

A prosecutor has the duty to "correct the knowingly false or mistaken material

testimony of a prosecution witness." People v. Colon,13 N.Y.3d 343,349 (2009); People

v. Sawides, 1 N.Y.2d 554,556 (1956). It does not matter if the false testimony merely

bears upon the witness' credibility rather than directly upon the defendant's guilt; "[a] lie

is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district

attorney has the responsibility and duty to correct what he knows to be false and elicit the

truth." Id. at 557.

The trial prosecutor need not be personally aware of the falsity of a witness's

testimony to be obligated to correct it-that he should have lcnown suffices to trigger his

or her obligation. See People v. Wikowski, 19 N.Y.2d 839 (1967) (stating the question is

"...whether the prosecution knew, or had reason to know, that such testimony was

false."); People v. Robertson, 12 N.Y.2d355,360 0963) ("The fault of the offender may

be less but the effect is the same and the giving of carelessly false testimony is in its way

as much of a 'fraud' on the court as if it were deliberate."); People v. Bermudez, 25 Misc

3d 1226(A) (Sup. Ct. New York Co. 2009) ("both the First and Second Departments have

acknowledged that CPL $ 440.10(1Xc) encompasses both actual knowledge and

situations where the prosecutor should have known of false testimony") (citing People v.

52
Stern,226 A.D.2d238,240 (Ist Dep't 1996); People v. Irwin,180 A.D.2d 753 (2dDep't

1992)); Su v. Filion,335 F.3d 1 19, 126-27 (2d Cir. 2003) (prosecutor "should have

known").

Where a prosecutor elicits or fails to correct inaccurate testimony, reversal and a

new trial are necessary unless there is no ooreasonable possibility" that the error

contributed to the conviction. People v. Pressley, 91 N.Y.2d825,827 (1997); United

States v. Agurs,427 U.5.97, 106 (1976); Giglio v. United States, 405 U.S. 150, 154

(1972); see also Napue v. Illinois,360 U.S. 264,269 (1959) (a State may not knowingly

use false evidence to obtain a conviction). When a prosecutor knowingly relies on false

testimony, ooreversal is virtually automatic." United States v. Wallach,935 F.2d 445,456

(2dCir.l99l) (internal quotation marks and citation omitted).

Due process also precludes a prosecutor from presenting evidence in a manner that

gives a false impression, including by making misleading arguments. See, e.g., People v

Vielman,3l A.D.3d 674, 675 (2d Dep't 2006) (reversing conviction on false testimony

principles where prosecutor's summation oorested on a false premise" and was a"blatant

attempt to mislead the jury"); People v. Anderson,256 A.D.2d413,414 (2d Dep't 1998)

(reversing conviction where the prosecutor "misled the jury by pointing to the absence of

[exculpatory] evidence that he knew existed"); People v. Walters,25I A.D.2d433 (2d

Dep't 1998) (reversing conviction where the prosecutor had "advocate[d] a position

which he knew to be false"); Jenkins v. Artuz,294 F .3d 284,294-96 (2d Cir. 2002)

(prosecutor's redirect, while eliciting technically correct answers, improperly "left the

jury with the mistaken impression that no plea agreement existed.")

53
 Because a prosecutor's false argument is the functional equivalent of knowingly

using false testimony, it is evaluated under the same materiality standard of reasonable

possibility. See, e.g., People v. Riback,l3 N.Y.3d 416, 423 (2009) (reversing where there

was reasonable possibility that prosecutor's summation misstatements of fact and law

contributed to the verdict); People v. Vielman, 31 A.D.3d 674,675 (2d Dep't 2006)

(reversing where prosecutor's improper summation argument "rested on a false premise"

and "was a blatant attempt to mislead the jury").

With respect to the grand jury, a prosecutor has an absolute duty to ensure that the

grand jury fulfills its function of o'protecting individuals from needless and unfounded

prosecutions." People v. Lancaster,6g N.Y.2d 20,25 (1986). A grand jury may only

indict when "(a) the evidence before it is legally sufficient to establish that such person

committed such offense ... and (b) competent and admissible evidence before it provides

reasonable cause to believe that such person committed such offense." CPL $ 190.65(1).

Legally sufficient evidence is "competent" evidence "which, if accepted as true, would

establish every element of an offense charged and the defendant's commission thereof."

CPL $ 70.10(1); see People v. Pelchat,62 N.Y.2d 91,105 (1984) ("The test is whether

the evidence before the grand jury if unexplained and uncontradicted would warrant

conviction by a trial j.rry").

If a prosecutor learns that false evidence essential to the indictment has been

presented to the grand jury, the prosecutor must move to dismiss it, for a prosecutor

cannot "permit a proceeding to continue on an indictment which he knew rested solely

upon false evidence." Pelchat,62 N.Y.2d at 106-07. A claim asserting thatagrand jury

54
indictment was obtained pursuant to false and misleading testimony may be brought at

any time, including after a conviction has been obtained. See People v. Huston,88

N.Y.2d 400,411 (1996); Pelchat,62 N.Y.2d at 108.

B. The Prosecution Here Used False or Misleading Grand Jury Testimony

The prosecution in this case impaired the integrity of the grand jury process by

deliberately presenting false or misleading testimony, in violation of Pelchat. The

prosecutor knew that the complainant did not recall any specific incident that

corresponded to any of the crimes alleged in Counts 3 through 87. The prosecutor knew,

therefore, that there was no legally valid basis for any of these counts to be voted. To

obtain what he knew was an invalid indictment, he deliberately disguised that the

complainant did not recall specific offenses under each count, making it falsely appear

that she did so. This enabled him to obtain a devastating, 88-count indictment containing

85 invalid counts. By concealing the true nature of the People's prosecution, the

prosecutor deceived the court, when it inspected the grand jury minutes, and forced the

court and the defense to deal with 85 invalid counts during pretrial motions, voir dire,

opening statements, and the beginning of the trial. The prosecutor's fraudulent grand jury

presentation deprived the defense lawyers of the opportunity, prior to trial, of carefully

researching the issue and making a formal motion to dismiss; instead, the lawyers, during

the hurly-burly of the trial, missed the duplicity issue. This was inexcusable on their part,

but it likely wouldn't have occurred but for the prosecutor's misconduct.

The prosecutor's actions certainly contributed to the outcome of the trial. The

misrepresentation of the complainant's testimony materially affected the grand jury's

55
decision in voting out the 85 duplicitous counts. These duplicitous charges would have

been dismissed prior to trial had the true nature of the charges not been concealed, the

voir dire, openings, and trial evidence would have focused on three, rather than 88,

counts, and Mr. Weberman would not today have been convicted at all. He certainly

would not be serving an additional 78 years on the invalid counts.

C. The Prosecution's Misrepresentations Concerning the Controlled Calls and

the Complainant's Motives for Testifying

The prosecution also made material misrepresentations to the court, and withheld

Brady material, with respect to the controlled telephone calls between the complainant

and Mr. Weberman and the complainant's motives for testifying. During the controlled

call, the complainant told Mr. Weberman that she had been angry at him because he had

caused her boyfriend to be arrested and acknowledged her awareness, and evident

sanctioning, of a campaign of retribution by her boyfriend and future husband that had

gone on for months. Rudin Aff.llfl 13,25.Indeed, she acknowledged that her feelings

about his role were the reason, a year before, for her breaking off her counseling

relationship with Mr. Weberman. These statements, if taken at face value, demonstrated a

strong motive for the complainant to fabricate her claims against Mr. Weberman.

However, the People falsely represented to the trial court that the complainant's

statements had been scripted by Detective Bruno, and were untrue. Id. atfl 27. Based

upon this representation, the trial court precluded the defense from using the

complainant's statements in the phone calls to prove her motive to lie, or for

impeachment of her contrary trial testimony. Id. at tffl 28, 54,261.

56
 Now, newly discovered evidence-Detective Bruno's own interview-reveals that

Det. Bruno only made suggestions to the complainant based upon what the complainant

had previously told him. Id. atl262. The People's representation to the court regarding

the complainant's statements, which resulted in their exclusion, had been false. As a

result, material evidence bearing upon the complainant's motive to lie was excluded at

trial. This was highly prejudicial to the defense.

The prosecution also failed to correct testimony regarding the complainant's

financial motives that it knew to be false. As discussed in more detail in Point VIII(D),

infra, newly-discovered evidence reveals that the complainant also had very compelling

financial motives to fabricate her testimony-she told Det. Bruno that her sister owed

Mr. Weberman money from a business venture, and she also had a substantial interest in

obtaining Mr. Weberman's conviction so that she could pursue financial compensation

through a subsequent civil lawsuit. Rudin Aff. fl 265.

Upon information and beliel the prosecution was aware of these substantial

financial motives. Certainly, Det. Bruno's knowledge of them must be imputed to the

prosecution under Brady. However, instead of correcting the false testimony, the

prosecution strenuously denied that the complainant or her family had any financial

motive related to Mr. Weberman's prosecution, and elicited testimony from the

complainant and her mother disclaimingany intent to file a lawsuit against Mr.

Weberman. Rudin Aff. lltl 41, 67 ,261 .

Finally, the People failed to disclose that the chief trial prosecutor had threatened

the assigned case detective, Det. Bruno, with dire employment consequences if he

57
testified adversely to the People. Id. atn265. Such a threat was favorable evidence for

the defense since it undercut the integrity of the entire prosecution. If the prosecutor

would threaten the case detective to cover up negative information, imagine what else he

might have done, or did, that affected the integrity of the prosecution. The People also

failed to disclose the statement by Det. Bruno that precipitated the prosecutor's threat:

that contrary to the complainant's statement at a prep session with prosecutors denying

she was aware that her sister was under a deadline to pay a debt to Mr. Weberman of

$35,000, she had admitted that knowledge to him during their first meeting. This was also

a Brady violation.

D. The Prosecution's Misrepresentations and Brady/Rosario Violation

Concerning the Complainant's Statements in the Solomon Case

During pretrial and during trial proceedings, the defense specifically requested

materials from the court file of Jeremy Solomon pertaining to the complainant's mental

state, but the court denied disclosure. Rudin Aff. fl 227. As discussed in Point VIII(E),

infra, newly-discovered evidence reveals that Solomon's file did indeed contain a letter

which described the incredible o'pain" the complainant was suffering as a result of her

boyfriend's arrest, and statements from her that she had contemplated suicide and would

again if anything happened to him. Rudin Aff. fl 275.The D.A.'s Office, which

prosecuted Solomon's case and must have possessed a copy of this letter in its own file,

was required to disclose this letter to the defense.

This letter was clearly Rosario and Brady material, and the prosecution's

suppression of it prejudiced the defense. Much like the therapy records discussed in Point

58
IV(B), supra, this letter would have significantly impeached both the complainant's and

Fried's testimony regarding the complainant's mental state and whether her boyfriend's

arrest could have sufficiently explained the signs of trauma that the two witnesses

attributed to Mr. Weberman's alleged abuse. Rudin Aff.n276

POINT VIII
NEWLY DISCOVERED EVIDENCE DIRECTLY CONTRADICTS
THE COMPLAINAI\T'S TESTIMONY AND THE
PROSECUTION'S THEORY OF THE CASEO AND AS SUCH
WOULD LIKELY CHANGE THE RESULT AT A NEW TRIAL

A. The Law Governing New Evidence

At any time after conviction, the court in which judgment was entered "may, upon

motion of the defendant, vacate such judgment upon the ground that. . . [n]ew evidence

has been discovered since the entry of'the judgment. CPL $ 440.10(l)(g). The movant

must prove "every essential fact [to such motion] by a preponderance of the evidence."

People v. Hamilton, Il5 A.D.3d 12,20 (2d Dep't 2014); see CPL $ 440.30(6); People v.

Jones,24 N.Y.3d 623,636 (2014). "The 'court must make its final decision based upon

the likely cumulative effect of the new evidence had it been presented attrial."' People v.

Deacon,96 A.D.3d 965,967 (2d Dep't 2012) (quoting People v. Bellamy, 84 A.D.3d

1260,1261 (2d Dep't 2011)).

The new evidence must be o'of such character as to create a probability that had [it]

been received at the trial the verdict would have been more favorable to the defendant,"

o'must
and it not be merely impeaching" or "cumulative." Hamilton,l 15 A.D.3d at20,22

(quoting CPL $ 440.10(1)(g)). Further, the new evidence must be such that it "could not

59
have been produced by the defendant at the trial even with due diligence on his part." Id.

(quoting CPL $ aaO.l0(1Xg)).

That new evidence is impeaching does not disqualify it-it must not be"merely

impeaching or contradictory." Hamilton,115 A.D.3d at 20 (emphasis added). Because

"[t]he jury's estimate of the truthfulness and reliability of a given witness may well be

determinative of guilt or innocence," Napue v. People of State of 111.,360 U.S. 264,269

(1959), courts must be prepared to conclude, when the facts call for it, that evidence that

"would have exerted a compelling impact on [a witness's] credibility . . . could have

created a sufficient doubt in the minds of enough jurors to affect the result," and that a

new trial is thus warranted. United States v. Seijo, 514 F.2d 1357 , 1364 (2d Cir. 1975);

see also United States v. Wallach, 935 F .2d 445 , 458 (2d Cir. 1 99 I ) ("' [A] witness' s

credibility could very well [be]a factor of central importance to the jury, indeed every bit

as important as the factual elements of the crime itself.") (quoting United States v.

Stofslcy, 527 F .2d 237 , 246 (2d Cir. 197 5)); id. (remanding for new trial where newly

discovered evidence of witness's oofalse testimony . . . directly callfed] into question the

veracity of the rest of his statements").

Thus, although "[g]enerally, impeaching or contradictory evidence will not

support a motion for a new trial . . . , this rule is not absolute." People v. Ramos,l32

Misc. 2d 609,612 (Sup. Ct. Kings Co. 1985). The Ramos court granted a new trial on a

440 motion where the o'central issue in the trial" was the alleged victim's "credibility,"

and newly discovered evidence of his past bad acts rebutted the suggestion at trial that he

lacked "any motive to lie." Id. at 613. Similarly, in People v. Santos,306 A.D.2d 197 (1st

60
Dep't 2003), the court affirmed an order for a new trial based on the newly discovered

evidence that the complainant, a jail guard, had a history of assaulting prisoners and

falsifying records. The court agreed that "this newly discovered evidence was not merely

collateral, as the complainant's history of assaultive behavior went to the very heart of

this defendant's trial defense." Id. at 198.

B. Had the Newly Discovered Records from the Complainant's Therapy

Sessions Been Available at Trial, the Verdict Would Likely Have Been More
Favorable to the Defense

The principal new evidence consists of records from the complainant's therapy

sessions going back to early 2010, over a year before she accused Mr. Weberman of the

crimes for which he was eventually convicted. These records directly contradict the

testimony of the complainant, the complainant's mother, and the complainant's treating

therapist, Sarah Fried, in several crucial ways. The complainant's credibility was at the

heart ofthe case, as the prosecution's entire case essentially consisted ofher accusations;

there was no physical, documentary, or third-party eyewitness evidence corroborating her

allegations. In short, the case was ultimately a swearing contest, and the veracity of the

complainant's story was thus essentially "determinative of [Mr. Weberman's] guilt or

innocence" in the eyes of the jury. Napue,360 U.S. at 269.The newly discovered

evidence discussed below-which shatters the false story that the complainant told the

jury and that the complainant's mother and Fried bolstered in their testimony-therefore

makes it highly likely that atrial aL which this evidence was available would have been

more favorable to Mr. Weberman. In addition, as we discuss below, much of the evidence

affirmatively supported the defendant's claim of innocence.

6l
 1. The Records Directly Contradict the Complainant's and Her Mother's
Testimony that the Complainant Did Not Know Basic Details About Sex

The complainanttestified attrial that Mr. Weberman inserted his finger into her

vagina and she started bleeding, that this happened on multiple occasions, and that she

did not know what the blood meant. Rudin Aff. flfl 43,60. She further testified that no

male outside of her family had ever touched her before she began her counseling with

Mr. Weberman, and before she became involved with her boyfriend at age 15, and that

she had no understanding of sexual matters. Id. atfl 60. Later, the complainant's mother

testified that the complainant had received no formal education in sexual matters, and that

such topics were never discussed in the Satmar community. Id. at fl 68. The obvious

inference that this testimony invited was that Mr. Weberman's sexual assault on the

sexually inexperienced complainant had broken her hymen, thus causing her to bleed, and

had robbed her ofher innocence.

The truth revealed in the therapy records, however, was that the complainant had

been sexually active with "boys" since she was 12 years old, and that "she claim[ed]

protection [wa]s used." Id. atn242. This indicated that her previous sexual encounters

had almost certainly involved penetration, which would have caused the complainant to

discover blood coming from her vaginaearlier than she claimed attrial. The complainant

made such statements throughout her therapy, even after she accused Mr. Weberman. 1d.

atl257. Had the defense had this evidence, it would have been able to deal a heavy blow

to the complainant's and the complainant's mother credibility on cross-examination, by

directly contradicting their testimony.

62
 The right of the accused to confront witnesses against him would have required

that such evidence be admitted, even though it would ordinarily be barred by New York's

Rape Shield Law. In New York, "[e]vidence of a victim's sexual conduct shall not be

admissible in a prosecution for" a sexual offense "unless such conduct," among other

things, o'is determined by the court . . . to be relevant and admissible in the interests of

justice." CPL $ 60.42(5). The purpose of the law is to'oprevent muddling the trial with

matters relating to a victim's prior sexual conduct which have no proper bearing on the

defendant's guilt or innocence,bvt only serve to impugn the character of the complainant

and to prejudice the jury." People v. Jovanovic,263 A.D.2d 182,206 (1st Dep't 1999)

(Mazzarelli, J., concuning in part and dissenting in part) (emphases added). When

evidence of past sexual conduct throws into doubt the veracity of the complainant's

accusations and testimony, however, the complainant's very real interest in privacy must

give way to the accused's fundamental right to confront and cross-examine witnesses.

Thus, the Appellate Division has held that evidence of a complainant's sexual

history must be allowed under the "interests ofjustice" exception if the accused proffers

such evidence to show that "the complainant's description of sexual intercourse was not

that of an innocent who only had this one experience ." People v. Ruiz,7 | A.D.2d 569,

570 (1st Dep't 1979); see id. (ordering new trial after explaining that, had evidence of the

l2-year-old complainant's past sexual encounter been admitted, ootestimony describing

the intercourse [with the accused] would . . . be less credible, since the jury could infer

63
that she was drawing on her other sexual experience to describe what occurred.").

Numerous federal and state courts have taken the same position.l

2. The Records Contradict Fried's Testimony that Sexual Assault at the

Hands of Mr. Weberman Could Have Been the Only Source of the
Complainant's Trauma and Impeach Friedos Credibility More Generally

Another crucial inference the People handed to the jury was that Mr. Weberman's

abuse could have been the only source of the complainant's trauma. Fried testified that

the complainant was never suicidal during treatment, and that she was not showing signs

I See, e.g., LaJoie v. Thompson,2lT F.3d 663, 671 (gthCir. 2000) (where accused was precluded
from introducing evidence of previous sexual assaults against complainant, granting habeas
petition because "[t]he evidence of [her] rape by [a different person] was . . . relevant to show
that [she] could have learned about sexual acts and male genitalia other than through rape by [the
accusedl"); Tague v. Richards, 3 F.3d I133, 1138 (7th Cir. 1993) (where defendant accused of
molesting I I -year-old girl and doctor testified that enlarged hymen and STD was evidence of
sexual abuse, rape shield law could not bar testimony that complainant had reported earlier
sexual experience, for though "virginity, or lack thereof, had no relevance" "as a general matter,"
Confrontation Clause required inquiry once prosecution elicited doctor's testimony); United
States v. Bear Stops, 997 F .2d 451, 457 (8th Cir. 1993) (accused had constitutional right to admit
details ofpast sexual assault against young boy, where prosecution had offered "persuasive
evidence about fthe boy's] behavioral manifestations of a sexually abused child"); Ex parte
D.L.H.,806 So. 2d ll90,ll93-94 (Ala. 2001) (given testimony that complainant had no sexual
experience, defendant would have been entitled to introduce impeach her by introducing
evidence that she had had sexual intercourse with someone else); State v. Waruen,7ll A.2d 851,
855 (Me. 1998) (ury must "be informed of [a] child's past sexual behavior in order to rebut the
natural inference of her sexual naivete."); State v. Budis, 593 A.2d 784,791 (N.J. 1991) (where
evidence of alleged's victims past sexual encounters "rebutfted] the inference that [she] acquired
the knowledge to describe sexual matters from her experience with defendant," accused's right to
confrontation required that such evidence of those encounters be admitted); id. at 791 ("The
majority of out-of-state courts agree that the prior sexual abuse of a youthful victim is relevant to
rebut the inference that the complainant could not describe the details of sexual intercourse if the
defendant had not committed the acts in question."); State v. Pulizzano, 456 N.W.2 d 325, 334-35
(Wis. 1990) (where evidence suggested the "inference that [the alleged victim] could not possess
the sexual knowledge he does unless [the accused] sexually assaulted" him, "[e]vidence of the
prior sexual assault" of the alleged victim to show an "alternative source for [his] sexual
knowledge" was "a necessary and critical element of [the] defense" and should have been
admitted).

64
of stress, anxiety, or abuse, including PTSD, except what was ooordinary for a teenager,"

before December 2010 and February 2011. Rudin Aff. fl 83. She implied on redirect that

only the alleged sexual abuse by Mr. Weberman could explain the test result indicative of

PTSD. Id. at fl 85. The jury was thus presented with a witness who appeared to

corroborate the complainant's testimony to the extent that she conveyed that there was

documented stress and trauma in the complainant's life and that there were no possible

altemative explanations for that trauma other than Mr. Weberman's purported abuse.

The therapy records signed or reviewed by Fried, however, contradict all of these

claims and inferences. See id. atll239-57. Had the jury been aware of the several other

sources of stress and trauma in the complainant's life, the picture that the prosecution

painted for them throughout the trial would have been rebutted. As in People v. Baier,73

A.D.2d 649,65I (2d Dep't 1979), "[w]ithout such records, the defendants were in no

position to evaluate the veracity of the clinical psychologist's professional conclusions by

resort to her own records; the denial operated to severely handicap what constituted their

[p]ivotal defense for cross-examination purposes." The therapy records also cast serious

doubt on Fried's credibility generally, as they contradict several pieces of testimony that

she gave at trial.

3. The Therapy Records Show that the Complainant Had a History of

Taking Extreme Measures to Get Revenge on Those Who Angered Her
and Thus Provide Strong Support for the Defense Theory of the Case

The defense's primary theory of the case was that the complainant had falsely

accused Mr. Weberman of sexually assaulting her in revenge for his reporting her

relationship with her ex-boyfriend, thereby causing her father to videotape the

65
complainant and the boyfriend to be arrested. See Rudin Aff. fl 148. The jury apparently

did not find this explanation convincing enough to acquit Mr. Weberman. (This defense

was weakened by the court's ruling that Mr. Weberman could not introduce the sexual

content of the videotape and arrest. See Point IX, infra.)

The therapy records, however, contain evidence that would have given powerful

support to the defense's theory and would likely have changed the jury's perception of it.

o'cut
These records detail how the complainant herself on the neck superficially this week

because she wanted dad to see 'how angry I am."' Ex. P at 11. She also "tried to starve

herself while in school because of fights with her mother." Id.Fried described more

generally the complainant's "history of cutting herself on her legs, arms, on places not

seen by others with a razor," the most recent incident occurring "a week ago on her neck

to show her father how angry she is." Id.In short, the complainant had the capacity to go

to extreme lengths to punish people close to her if she felt they had betrayed her. If the

defense's theory of the case maybe sounded implausible to the jury, this evidence,

revealed on the cross-examination of the complainant or Fried, would have quickly

shown the jury just how plausible-indeed probable-the theory was.

The evidence was not collateral, but went to the heart of the defense and to the

complainant's motives to lie. o'Proof aimed at establishing a motive to fabricate is never

collateral and may not be excluded on that ground." Petople v. Ocampo, 28 A.D.3d 684,

685 (2d Dep't 2006). Evidence of a complainant's modus operandi in exacting revenge

on others certainly was relevant and probative of the question of whether she engaged in

a similar modus operandi in framing Mr. Weberman on a false accusation of sexual

66
abuse. Given how crucial the complainant's credibility was in the case, and how strongly

the evidence of her past instances of extreme vengefulness speaks to her capacity and her

intent to concoct a false accusation against Mr. Weberman, such evidence would have

been a proper subject for questioning and would have been directly admissible.

C Detective Bruno's Sworn Statement that Everything the Complainant Said in

the Controlled Phone Calls Came from Her Own Statements to Him Makes It
Very Likely that the Complainant's Exculpatory Statements in the Calls
Would Be Admitted at a New Trial

Before trial, the court precluded the defense from introducing the statements that

the complainant had made in a series of controlled phone calls, under the supervision of

Detective Bruno, to Mr. Weberman. Rudin Aff. flfl 25-28. The court's main rationale for

this decision was the supposed fact-represented to the court by the prosecution-that

Det. Bruno had fed the complainant untrue statements calculated to get Mr. Weberman to

admit the complainant's accusations. If Det. Bruno had invented the statements, the court

reasoned, then the statements did not say anything probative about the complainant's

state of mind, as the defense claimed. The statements therefore could not come in at trial

as evidence or for impeachment.

Recently, Mr. Weberman's current counsel spoke with Det. Bruno, now retired.

Det. Bruno states that the statements that he told the complainant to make during the

controlled phone calls conceming her knowledge of Mr. Weberman's role in the arrest of

her boyfriend were based only on things that the complainant had already told him. Id. at

n262.In other words, the People's representations to the contrary were false. Their false

67
representations to the court deprived Mr. Weberman of powerful, recorded evidence

further establishing his defense and undercutting the People's denial of it.

Any claim by the People that they merely relied on what the complainant told

them must be rejected. They were responsible for knowing, under Brady and related due

process principles, what the police detective in charge of the case knew. That they

decided to go to war with him because they didn't like what he knew was no excuse for

them to make misrepresentations to the court to deprive the defense of crucial evidence.

D. The Complainant's Post-Trial Lawsuit Against Mr. Weberman Contradicts

Her Claim at Trial that She Had No Financial Interest in the Case

The post-trial revelation, in the form of the complainant's lawsuit against Mr.

Weberman, that the complainant did, in fact, stand to gain financially from her

accusations against Mr. Weberman, would further erode her credibility in a new trial, as

it squarely contradicts her trial testimony. The complainant testified that she was not

pursuing "any kind of benefit" for testifying, but was simply trying to bring Mr.

Weberman to justice. Rudin Aff. fl 41. She later added, more specifically, that she was

not looking to recover any money, or to sue anyone, in connection with the criminal case.

Id. Less than a year after Mr. Weberman was sentenced, however, the complainant filed

suit in Supreme Court, Kings County, No. 2096712013, against Mr. Weberman and two

schools, including UTA, for the alleged sexual assaults she suffered from 2007 through

2010. This new evidence is highly relevant to the complainant's credibility. See People v

Wallert,93 A.D.2d 47, 50 (1st Dep't 1983) (where oocomplainant's credibility and motive

for testifying fwere] a crucial issue," the fact that she had brought a civil suit against the

68
accused "had the possibility of assisting the defendant and raising a reasonable doubt," as

"'[t]he jury's estimate of the truthfulness and reliability of a given witness may well be

determinative of guilt or innocence"') (quotingNapue,360 U.S. at269) (other internal

quotation marks omitted).

Also favorable to the defense under Brady, but suppressed by the People, was the

complainant's statement to the detective that she knew about her family's substantial debt

to Mr. Weberman and that it was due within two days. This directly supported the

defense's other theory about motive to fabricate. The detective confronted the

complainant's untruthful denial of such knowledge during a witness prep session before

trial, after which the prosecutor threatened him with personal consequences if he

undercut their case. They then presented her false testimony denying that the debt was in

her mind when she made her initial complaint to the police. This was an egregious, and

highly material, Brady violation which, by itself or considered cumulatively with all the

others, denied Mr. Weberman his State and Federal Constitutional right to a fair trial.

E. Other New Evidence Casts Further Doubt on the Complainant's Credibility

Testimony the complainant has given in her civil case also reveals-in

contradiction to her trial testimony-that in her voluminous personal writings during the

time period in question, she never wrote about Mr. Weberman sexually abusing her. At

that deposition she was asked, "In the three years, the four years that you were seeing

[Mr. Weberman] you never wrote anything anywhere that he was making you do

anything sexual, right?" She answered, o'I don't think so, no." Rudin Aff.n274.

69
 Finally, a newly discovered letter from the criminal case file of Jeremy Solomon,

the complainant's boyfriend who was charged with statutory rape after the two were

videotaped having sex, casts still further doubt on the complainant's allegations, in

several ways. See id. atll275-76. First, the letter, which details the anguish the

complainant was suffering during Solomon's prosecution, further contradicts Ms. Fried's

testimony that the complainant was not suicidal, and that the episode with Solomon was

not a serious source of trauma in her life. Second, the letter is written by a "life coach" to

whom the complainant divulged extremely intimate details yet failed to say a word about

any alleged abuse by Mr. Weberman. Third, the letter suggests the implausible scenario

that the complainant started counseling with another, apparently unlicensed male advisor,

soon after being abused by Mr. Weberman. In short, the letter adds still more entries to

the long list of doubts about the veracity of the complainant's allegations.

POINT IX

SUFFICIENT EVIDENCE EXISTS TO MAKE A PRIMA FACIE

SHOWING THAT WEBERMAII IS ACTUALLY INNOCENT

A. The Law Regarding Actual Innocence Claims

"[T]he conviction of an actually innocent person 'violates elementary fairness

[and] runs afoul of the Due Process Clause of the New York Constitution."' People v

Tiger,149 A.D.3d 86, 108 (2d Dep't 2017) (quoting Hamilton,115 A.D.3d at26). Under

CPL $ 440.10(1)(h), a judgment should be vacated and "the indictment should be

dismissed" if the defendant "establishes his actual innocence by clear and convincing

evidence." Hamilton,l l5 A.D.3d aI27; see also, e.g., People v. Tiger,149 A.D.3d 86,

70
104 (2d Dep't 2017). A defendant is entitled to a hearing on his claim if he makes a

primafacie showing of actual innocence; such a showing "is made out when there is a

sufficient showing of possible merit to warrant a fuller exploration by the court."

Hamilton,115 A.D.3d al27 (intemal quotation marks omitted). "At the hearing, all

reliable evidence, including evidence not admissible at trial based upon a procedural

bar . . . should be admitted." Id. Further, "where the defendant asserts a claim of actual

innocence, new evidence may be considered, whether or not it satisfies the Salemi

factors . . . [and] other legal barriers, such as prior adverse court determinations, which

might otherwise bar further recourse to the courts." Id. at 25 (intemal quotation marks

omitted)

)B. Clear and Convincing Evidence Establishes that Mr. Weberman Is Innocent

Several pieces of evidence that the jury did not consider at trial-either because it

has been newly discovered only since the trial occurred or because it was excluded at

trial----establish by clear and convincing evidence that Mr. Weberman is innocent.

1. The Complainant's Motivation and Capacity to Fabricate the Accusations

The controlled phone calls from the complainant to Mr. Weberman As detailed

above and in the Rudin Affirmation, after the complainant made her accusations against

Mr. Weberman, Detective Bruno had the complainant make a series of controlled phone

calls to Mr. Weberman. In these calls, the complainant acknowledged that she blamed

Mr. Weberman for the trauma involving her ex-boyfriend and that people had been

harassing Mr. Weberman in revenge on her behalf. The calls thus constituted strong

7t
evidence of the complainant's motive to fabricate the accusations against Mr. Weberman,

which she falsely denied attrial. As the trial court properly instructed the jury, a

factfinder may disregard a witness's entire testimony where she has testified falsely as to

any material fact. Tt. 1693.In addition, during the calls, Mr. Weberman repeatedly

expressed shock and disbelief at the nature of her accusations. He didn't take her clever

bait of helping her retrieve a semen-stained shirt that she claimed she was afraid her

mother would find and have tested, since he had no concern that any such evidence could

possibly be related to him. This was powerful evidence of his innocence.

The nature of the videotape that led to the complainant's boyfriend's arrest.

Although the court allowed the defense to elicit evidence that avideo had led to the

complainant's boyfriend's arrest, it precluded any evidence regarding the nature of the

video. Rudin Aff. fl 24. These details constitute crucial evidence establishing the depth of

the complainant's motive to make a false accusation. The jury was allowed to hear only

that a video had somehow led to the complainant's boyfriend's arrest. The theory that the

complainant was motivated to falsely accuse Mr. Weberman of sexual abuse based on

double-crossing her that way was plausible, but left room for skepticism. However,

knowing that the video showed the complainant in the most profoundly humiliating,

embarrassing intimate sexual acts-and that word of the video almost certainly was

publicized in the community after the boyfriend's arrest-makes the defense's revenge

theory a much more powerful one. Who wouldn't want revenge at a person one had

trusted with one's intimate secrets, only to have them betrayed in this fashion?

72
 The complainant's history of taking extreme measures to get revenge. As

discussed at length above and in the Rudin Affirmation, the complainant's therapy

records contained strong evidence of her capacity to take extreme measures when

desiring revenge against adults who had angered her. Again, while it might, under normal

circumstances, be difficult to believe that a young woman would be capable of

concocting sexual-abuse accusations like those here, the complainant's documented

modus operandi of cutting and starving herself to strike back at her parents when she felt

anger towards them made the defense theory that she would strike back at Mr. Weberman

much more plausible. The records showed how profoundly damages and disturbed this

young woman was for reasons having nothing to do with, and predating her relationship

with, Mr. Weberman.

2. The Complainant's and Other Prosecution Witnesses' Lack of Credibility

As detailed above, new evidence discovered since the trial-i.e., the complainant's

therapy records, Det. Bruno's statements about the circumstances of the controlled phone

calls, and the lawsuit the complainant and her family have filed against Mr. Weberman-

cast serious doubts on the complainant's credibility. The therapy records contradict the

complainant's and the complainant's mother's contention that the complainant was

sexually naive. They also contradict Fried's testimony that the complainant was never

suicidal and that only Mr. Weberman's unlawful conduct could have caused her trauma.

The complainant's post-trial lawsuit contradicts her and her mother's testimony attrial

that they had no financial motive related to the prosecution. Det. Bruno's recent

confirmation that the complainant's statements on the controlled phone calls came from

73
her own recollection of events contradicts her testimony that she did not blame Mr.

Weberman for causing her to be videotaped and her boyfriend to be arrested.

Det. Bruno's DD5 documenting the complainant's statements to him on February

16,2011, also contradict her trial testimony. First, contrary to her testimony that Mr.

Weberman penetrated her with his finger the first time she saw him for counseling, she

told Det. Bruno that the first time Mr. Weberman tried to sexually assault her she told

him to stop and he did. The first time he inserted his finger, she told Det. Bruno, was two

months later. Second, she told Det. Bruno, as he has confirmed to counsel in this case,

that she believed that Mr. Weberman and her father had put the hidden camera in her

house and produced the videotape that led to her humiliation and her boyfriend's arrest.

She also contradicted her eventual trial testimony about when oral sex first occurred.

These were important details of her story and her inconsistencies strongly undercut her

credibility when she is the only witness who claims that Mr. Weberman abused her.

3. The Prosecutionos Failure to Prove the Age Element Under Counts I and 2

As noted above, there is abundant evidence indicating that Mr. Weberman did not

commit any of the acts of which he was accused. In addition, the evidence, apart from the

complainant's own, impeached testimony, overwhelmingly establishes that the

counseling relationship only began when she was 13. See Rudin Aff. 'lTlT J3,91,94, 122.

There is thus clear and convincing evidence that Mr. Weberman is not guilty, as a matter

of law, under Counts I and2.

74
 4. Inherent Weaknesses in the Prosecutionns Case

Even at the highly flawed trial, the prosecution's case suffered from several

inherent weaknesses that point to Mr. Weberman's innocence, including the following:

a The complainant did not report the alleged abuse until almost ayear after it was
supposed to have stopped, despite being in regular therapy sessions.

There was no evidence that Mr. Weberman had groomed the complainant in the
manner so commonly seen in sexual-abuse cases.

o Even though, according to the complainant, Mr. Weberman had sexually abused
her in his home ofhce almost every single week for three years, and even though
other girls were frequently present at the home, incredibly no one ever discovered
the misconduct or reported that he had locked his office door in violation of
Satmar modesty rules.

a Even in the face of the alleged weekly abuse, the complainant never missed a
scheduled session.

a The complainant claimed that she bled every time Mr. Weberman inserted his
finger into her vagina, an unlikely occutrence unless some unusual level of force
was involved, yet the complainant never testified to any violence or particular
roughness.

o The complainant did not claim that Mr. Weberman ever ejaculated, which was
highly unlikely to be true if the alleged conduct actually occurred.
o The complainant stopped seeing Mr. Weberman for counseling a week after her
boyfriend's arrest, yet she claimed, implausibly, that she did so not because she
was angry with Mr. Weberman for his role in the arrest, but rather because she had
to travel longer to school. She also abruptly halted their regular telephone calling
sessions.

75
 CONCLUSION

The judgment of conviction should be vacated and the indictment dismissed, or

else a new trial held on any remaining valid counts. To the extent that the People's

response raises material issues of fact, a hearing should be held.

submitted,

B. RUDIN
of Joel B. Rudin, P.C
Hall Tower
152 West 57th Street, 8th Floor
New York, New York 10019
(2r2) 7s2-7600
jbrudin@rudinlaw.com

[/.d^]- J r'r
SUSAN NECHELES
Hafetz & Necheles LLP
10 E. 40th Street, 48th Floor
New York, New York 10016
(212) ee7-7400
srn@hafetzneche les. com

Attorneys for Defendant Nechemya

Weberman

DATED: New York, NY

September 28,2017

Jacob Loup
Haran Tae

(Of Counsel and on the Memorandum)

76