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New trial ordered in sex abuse case after witness denied

Judge denied defense witness

A state appeals court has reversed a sex abuse conviction and ordered a new trial because the judge refused to let the defense call a witness.

Defendant Marquis D. Andrews was convicted in October 2017 in Oswego County Court before Judge Donald E. Todd of two counts each of first- and second-degree degree sexual abuse. Andrews was sentenced to seven years in state prison.

In a decision released Friday the Appellate Division of state Supreme Court, Fourth Department, reversed the conviction and granted a new trial.

The Fourth Department panel ruled that Andrews failed to preserve for review the contention that the indictment was duplicitous and that the indictment and bill of particulars were insufficiently specific.

The Fourth Department also rejected the claims that the evidence is legally insufficient to support the conviction or against the weight of the evidence.

But the panel agreed with Andrews’ appellate lawyer, John A. Cirando, that Judge Todd should have allowed the defense to call a witness who was expected to testify that the alleged victim offered to make a false allegation of abuse against the witness’s boyfriend.

“Based on the proffer made at trial, defendant’s proposed witness would have testified that the complainant offered to knowingly make a false allegation against the witness’s boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident,” according to the decision.

“Further, per defense counsel’s proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness’s boyfriend were sufficiently similar to suggest a pattern casting substantial doubt on the validity of the charges,” the court wrote.

“The evidence against defendant was not overwhelming, the conviction rested largely — if not entirely — on the testimony of the complainant, and the proposed witness precluded by the court was the sole witness defendant sought to call,” the court wrote.

“Under these circumstances, we conclude that the court abused its discretion in precluding the defendant from calling that witness, that the error was not harmless, and that a new trial must be granted,” the court wrote.

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