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Rape conviction affirmed in split decision despite apparent Brady violation

Brady material provided four days before trial

In a split decision, a state appeals court has affirmed a rape conviction, despite an apparent Brady violation.

Defendant Jason A. Sherwood, 44, was convicted in September 2015 before Sullivan County Court Judge Frank J. LaBuda of second-degree rape and second-degree criminal sexual act.

The victim was a 14-year-old girl.

The Appellate Division of state Supreme Court, Third Department, upheld the conviction in a 3-1 vote. The majority included justices John C. Egan Jr., Christine M. Clark, and Andrew G. Ceresia. Justice John P. Colangelo dissented.

Sherwood’s trial attorney moved to set aside the verdict because the prosecutor allegedly failed to provide him with information that the victim underwent a forensic child sexual abuse evaluation and physical examination, according to the decision released Thursday.

LaBuda denied the motion and Sherwood was sentenced to consecutive prison terms of seven years on each conviction, followed by 10 years of post-release supervision.

Sherwood’s appellate attorney argued that LaBuda should have granted the motion to set aside the verdict because he previously ruled that records from the victim’s forensic child sexual abuse evaluation and physical examination were Brady material.

Although the prosecution has “a duty to disclose exculpatory material in their control, a defendant’s constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case,” the majority wrote.

The defense received the records of the victim’s evaluation four days before trial. Sherwood’s lawyer argued that the records contained two pieces of exculpatory information.

First, the examination of the victim, performed three months after the incident, was “normal” and did not reveal any injury. Secondly, during an interview related to the physical examination, the victim disclosed allegations of prior sexual abuse by two different individuals, which Sherwood claims were fabricated.

The panel noted in the decision that, during cross-examination of the victim, Sherwood’s lawyer asked whether the results of the exam were normal, and she confirmed that they were. Sherwood’s lawyer also repeatedly referenced the normal results during the cross-examination of the victim.

In addition, Sherwood’s attorney commented in his closing argument about the exam and the lack of evidence of physical injury.

LaBuda did not permit Sherwood’s defense attorney to question the victim about the prior allegations.

Because Sherwood’s lawyer had a “meaningful opportunity to review the Brady materials” and use the information in his defense Sherwood’s constitutional right to a fair trial was not violated by the prosecutor’s failure to turn over the records sooner,” the majority ruled.

In a dissent, Colangelo wrote that “the withheld evidence was clearly material and defendant was prejudiced.”
“As a result of the Brady violation, defendant was denied an opportunity to pursue other strategies with defense counsel,” Colangelo wrote.

He wrote that Sherwood “was denied, among other things, the opportunity to investigate and interview other potential defense witnesses well in advance of trial, or to develop a more detailed argument on the issue of whether he could cross-examine the victim and call certain witnesses without running afoul of the Rape Shield Law.”

“With more time, he also could have called the examining physician or retained his own medical expert to review the records,” Colangelo wrote.

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