I believe it would be helpful to readers to have the facts laid out chronologically, which if course I have done many times over the last four to five years, after I obtained all the relevant evidence. What follows is a recitation of the facts from a memorandum of law that was filed in the Appellate Division, Fourth Department in December of 2009, in support of a motion for “summary reversal” and a “writ of error coram nobis”. Not all of the exhibits cited in the memorandum are up on this blog yet, and they may never be. What I’m putting up here is supposed to be the minimum necessary to understand the basic facts of the case. I am going to hyper link to the posts where some of the documents are up online, but I can only hyper-link to the posts where they appear, not the documents themselves.
I should emphasize that reading the embedded documents is important if you want to have any understanding of this. In the body of the posts themselves, I am assuming that the reader has read the documents and is familiar with them. It is particularly important to be completely familiar with the affidavit of Adrian Paige, and the story of how I got that information from him.
It should be noted that the facts as they appear below are not only amply supported by highly reliable documentary proof; they have also never been disputed other than by way of what we attorneys in New York call a “general denial” in the pleadings. This is insufficient to create an “issue of fact”. So these are the facts of the case as a matter of law:
On December 8th, 2003 Adrian Paige needed money to buy presents for his children at Christmastime; but as a felon on parole living in Geneseo, New York, money was hard to come by. Adrian planned to get some by taking it from some amateur student drug dealers at the nearby SUNY campus, but needed others to help because he knew the drug dealers and was worried about being identified. [Affidavit of Adrian Paige dated May 3, 2006, attached to original Petition, paragraph 5]
Adrian lived in Geneseo with his girlfriend Angela and two children. From time to time a pretty high school girl from up the road in Avon named Sephora Davis would babysit for Adrian and Angela. Like many high school age people, Sephora occasionally engaged in recreational but illegal drug use, and Adrian sometimes provided her with marijuana. [Paige affidavit, paragraph 2]
At about 2 PM on December 8th Sephora appeared at Adrian’s residence with a friend from Mount Morris named Mechal Fuoco, looking for marijuana. They arrived in Sephora’s car. Adrian had some and they all smoked. [Paige affidavit paragraph 3] Afterwards, Sephora appeared to be unusually and seriously impaired and ill. [Paige affidavit paragraph 4] Unbeknownst to Adrian, Sephora had not slept the previous night due to a toothache and had gone to the hospital a few hours earlier where she had received a shot of pain killing medication. [Medical record from Noyes Hospital of 12-08-03]
Adrian decided to take advantage of this situation: he needed use of a car and now he could have use of Sephora’s. He drove Sephora and Mechal a few miles down the road to Mount Morris where an acquaintance of his named Eric Harder lived, picked him up and drove the whole group back to his residence in Geneseo. Harder and Fuoco agreed to help Adrian get money; Sephora remained too impaired to participate. [Paige affidavit, paragraphs 5 through 8]
Adrian then drove the group to Court Street, where the amateur dealers lived, and waited in the car with the impaired Sephora while Fuoco and Harder performed a burglary. The burglary was unsuccessful at producing any money, so the group left and headed back to Adrian’s residence. [Paige affidavit, paragraphs 8 through 10]
By the time they arrived back at Adrian’s Sephora’s pain medication was wearing off and she became more cognizant. [Paige affidavit, paragraphs 9 and 10] Adrian remained, intending to try again later [Id.]; Sephora wanted to go home to Avon, but she had to go to Mount Morris first and drop off Fuoco and Harder [Id.]. She dropped Fuoco off on Trumbull Street in Mount Morris and headed north on Main Street, intending to drop off Harder on the way home. [Affidavit of Sephora K. Davis dated May 17, 2006, paragraph 2, attached to original Petition]
A very large (6-3, 260lbs.) 22 year old man, Harder invited Sephora into his residence once he was alone with her, enticing her with a promise of marijuana and telling her his girlfriend was there; but when they went in there was no marijuana and no girlfriend. Harder raped Sephora at knife point threatened to kill her. After she begged for her life and promised never to tell anyone, he relented. [Sephora Davis affidavit, paragraphs 3 through 5]
Harder held Sephora for several hours, first taking her back up the street to Mechal Fuoco’s, then making a trip in Fuoco’s car to Sephora’s family’s house in Avon, where he quietly threatened to harm her and other members of her family, stressing that he now knew where she lived. [Sephora Davis affidavit, paragraphs 6 and 7][Affidavit of Stephanie Fox dated February 7, 2006, Exhibit “B” to the Petition] Finally, Harder arranged to have Sephora drugged with heroin back at Fuoco’s residence in Mount Morris before going to work at 11 PM in Leicester. [Affidavit of Mechal Fuoco dated July 5, 2006 paragraph 3, Exhibit “D” to Petitioner’s Notice of Motion dated November 17th, 2006][Grand Jury testimony of Eric Harder, p. 15 line 25 to p. 16 line 1, annexed to Notice of Motion dated April 22, 2009 as Exhibit “E”]
Sephora, now completely incapacitated, was driven back to Court Street in Geneseo again about midnight in Fuoco’s car where Adrian, Fuoco and others committed another unsuccessful burglary. [Paige affidavit, paragraphs 13 and 14] Finally, at about 3 AM on December 9th, after Fuoco and the others went home, Adrian made one last effort, driving the still passed out Sephora in her own car down to Nunda where he picked up Shaun Theriault (who brought a shotgun), back north to Leicester to pick up Harder from work, then back to Court Street in Geneseo. Harder and Theriault there performed an armed robbery; Adrian remained in the car with the still passed out Sephora, parked off site away from the scene. [Paige affidavit paragraphs 15 et seq.]
After retrieving Harder and Theriault, Adrian drove away from the scene back to Leicester, where he dropped Harder off, then back towards his residence in Geneseo. [Id., paragraph 20] Sephora regained consciousness on the way and said she was hungry, so Adrian went to the Wegman’s food store in Geneseo. He and Theriault stayed in the car while Sephora went into the store; while she was in there Theriault used Sephora’s cell phone to call the robbery victims and threaten them to come up with more money. [Id., paragraph 21]
Sephora returned to the car and, now awake and able to drive, dropped Adrian and Theriault off at Adrian’s residence and drove home to Avon.
The victims, meanwhile, had contacted police to report the robbery. At about 11 AM on December 9th, one victim named Colin Edenfield made a police supervised “controlled call” to Sephora’s cell phone number which had been captured when Theriault used it to call from the Wegman’s parking lot. The idea was to get the perpetrators to come back for the money they had demanded, whereupon they would be caught. Sephora answered the call, told the caller she didn’t know who he was or what he was talking about and hung up. [Supporting deposition of Colin Edenfield dated December 9, 2003 and accompanying police notes, Exhibit “K” to Petitioner’s Notice of Motion dated April 22, 2009]
Sephora then called Adrian to see if he knew what the phone call might be about. He didn’t tell her, but became worried that the police might be involved. Over the next week Adrian and his girl friend Angela repeatedly contacted Sephora and her younger sister Britni with a false cover story designed to deflect any investigation of the robbery away from Adrian. [Paige affidavit, paragraph 22]
By December 18th police had identified the captured phone number as belonging to Sephora and went to her house to question her and her sister Britni. [Sephora Davis affidavit of May 17, 2006 paragraph 10] The two high school girls gave police the story Adrian had given them. [Id.] On or about December 22nd, police in Geneseo prepared a statement for Sephora to sign but ultimately she never did. [Exhibit “C” to Notice of Motion dated April 22, 2009]
At some unknown point in the ensuing four weeks a Mount Morris police officer named Dana Carson made contact with Eric Harder. [Exhibit “F” to Petitioner’s Notice of Motion dated April 22, 2009] Not coincidentally, Carson had been romantically interested in Sephora since meeting her in connection with a minor car accident in October, 2002 but had been rebuffed. [Affidavit of Sephora Davis dated April 7, 2006, Exhibit “J” to the Petition][Police report of Dana Carson, Exhibit “A” to Petitioner’s Notice of Motion dated November 17, 2006] Harder was telling people in Mount Morris that he had had consensual sexual relations with Sephora Davis, who was somewhat well known among locals for her attractiveness and peculiar first name. Hearing this rumor prompted Carson to inquire further of Harder, whereupon Carson learned of Harder’s and the others’ involvement in the December 9th, 2003 Geneseo armed robbery. [Alleged as fair inference from other evidence and uncontested]
Harder lied to Carson about the consensual sex, but told him the truth about Sephora’s condition during the robbery and who was driving; however Carson, still angry over Sephora’s rejection of him and with knowledge of the evidence already gathered by police [e.g., Exhibit “C” to Petitioner’s Notice of Motion dated April 22, 2009], was aware that it would be difficult if not impossible for Sephora to defend herself against an allegation that she was driving and an active participant during the crime. So he thereupon conspired with Harder, and others, to generate false evidence that Sephora was “the driver” for the robbery. On January 23rd, 2004 Harder signed a statement implicating himself, Paige, Theriault and Sephora in the robbery, and they were eventually all arrested and charged. [Exhibit “G” to Petitioner’s Notice of Motion dated April 22, 2009] That same day, the statement of William Annis, who was specifically connected to Harder, and through Harder to Carson, was also taken. [Exhibit “D” to Petitioner’s Notice of Motion dated April 22, 2009]
The following day, January 24th, Carson used a seemingly independent witness named Ashley Baker to generate a false statement that Sephora had been “the driver” for the crime. [Statements of Todd Gaddy and Ashley Baker, Exhibit “H” to Petitioner’s Notice of Motion dated April 22, 2009]
In late March and early April of 2004, Harder, Paige and Theriault all pleaded guilty to robbery charges in Livingston County Court. [Exhibit “B” to Petitioner’s Notice of motion dated April 22, 2009] The District Attorney, Thomas E. Moran, Esq., conducted their plea colloquys and suspiciously elicited testimony from each of them to the effect that Sephora had been driving the car during the robbery, even though that was not necessary to establish their factual guilt. [Exhibit “B”, Harder’s colloquy, p. 12, lines 7 through 20; Paige colloquy p. 8 through 10; Theriault colloquy, p. 10 line 7 and p. 14 line 14] District Attorney Moran had been personally involved in the investigation of the crime since shortly after it occurred in December of 2003. [Exhibit “M” to Petitioner’s Notice of motion dated April 22, 2009][Affidavit of Sephora Davis dated May 17, 2006 annexed to Petition, paragraph 11]
Sephora thereafter refused plea offers and District Attorney Moran presented the matter to a Livingston County Grand Jury beginning on October 6th, 2004. During the Grand Jury proceedings on that date, he pressured several witnesses, including Paige and Theriault, to give testimony implicating Sephora. [Paige affidavit, paragraph 25][Affidavit of Stephanie Fox dated February 7, 2006 paragraph 7, Exhibit “B” to the Petition] Paige and Theriault both testified falsely before the Grand Jury that Sephora had been driving her car during the robbery. Harder, after surprisingly identifying Paige as the driver at one point, later dutifully if anomalously likewise claimed that Sephora was driving. [Exhibit “E” to Petitioner’s Notice of Motion dated April 22, 2009, p. 17 lines 17 through 24; p. 47 line 12; p. 48 lines 10-11; p. 54 line 25 and p. 55 line 1]
Three days later, on October 9th, 2004, Adrian Paige provided a highly detailed account of the events surrounding the December, 2003 robbery to Sephora’s attorney during an interview in the prison south of Mount Morris where he was incarcerated. [Affirmation of John M. Regan, Jr., Esq. dated April 22, 2009 paragraph 6] This account made it clear that Adrian Paige, and not Sephora, had been driving Sephora’s car at all the relevant times, and that Sephora was actually passed out in the car during the robbery for which she was being charged. [See generally Paige affidavit of May 3, 2006] This was the first time anyone representing Sephora had been made aware of this information, which even Sephora herself did not know for obvious reasons. However, it is clear from the evidence uncovered in the time since that police involved in the investigation of the robbery were aware of this information at least by January of 2004, some ten months earlier. [Exhibit “F” and Exhibit “H” to Petitioner’s Notice of Motion dated April 22, 2009]
Sephora’s attorney appeared with his client before the Grand Jury on October 13th, 2004 and sought to present this information, along with grounds for believing that Sephora had been raped by Harder, but this effort was rebuffed, and the Grand Jury voted an indictment that day upon District Attorney Moran’s request.
Motion practice and proceedings took place in Livingston County Court throughout the remainder of calendar year 2004 and 2005 pertaining to a host of issues, most of which are not relevant here. However, late in 2005, it became apparent that Mr. Moran was engaged in a pattern of withholding critical exculpatory evidence. [Exhibits “F”, “H”, “J”. “K”, and “M” to Petitioner’s Notice of Motion dated April 22, 2009]
This ultimately prompted the within Article 78 proceeding in the nature of prohibition commenced in May of 2006. In August of 2006 a different attorney, Donald M. Thompson, Esq., was substituted to represent Sephora in the Livingston County Court criminal case. That attorney obtained what was represented to be the entire prosecutor’s file in the matter, which turned out to contain definitive proof that in January, 2004 and thereafter, police and others had engaged in a criminal conspiracy to fabricate evidence that Sephora had been the “driver” for the robbery, knowing full well that she had been incapacitated and not driving. [Exhibit “H” and “K” to Petitioner’s Notice of Motion dated April 22, 2009]
This evidence was presented in the Article 78 Proceeding in November of 2006. Shortly thereafter, police arrested and criminally charged one of the critical witnesses relevant to that evidence in an effort to intimidate him, although this arrest was not discovered until almost a year later. [Exhibit “I” to Petitioner’s Notice of Motion dated April 22, 2009]
On December 22nd, 2006 this Court dismissed the within Article 78 Proceeding on mootness grounds, citing Sephora’s Alford plea in Livingston County Court which had taken place in October. Sephora was sentenced to prison on January 3rd, 2007 and was released from custody on or about September 20th, 2009. As of this writing she remains on “post-release supervision” under the terms of her sentence.
On April 24th, 2009 Sephora, through undersigned counsel, moved in this Court for a writ of error coram nobis summarily reversing her conviction, dismissing the indictment against her with prejudice and other relief. The Court denied the motion without comment on June 5th, 2009. The Petitioner then moved for clarification, reargument and/or leave to appeal by Notice of Motion dated July 6, 2009. That motion was also denied, again without comment, by this Court’s Order of October 2, 2009.