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Murder conviction affirmed

Grand jury proceeding was recorded

A state appeals court has affirmed a murder conviction, rejecting an argument that the prosecution failed to abide by discovery rules and that the grand jury proceeding was improperly recorded.

Defendant Treamon Elmore was convicted in September 2020 before state Supreme Court Justice Gordon J. Cuffy, in Onondaga County, of two counts of first-degree murder, third-degree conspiracy, second-degree criminal possession of a weapon, and criminal possession of a firearm.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, unanimously affirmed the convictions.

The Fourth Department agreed with the defense argument that the new procedures outlined in New York State Criminal Procedure Law applied to Elmore’s case after the law became effective in January 2020.

“We nevertheless reject defendant’s contention that the People violated CPL Article 245 by failing to provide defendant with the criminal history of his brother, an alleged accomplice who testified for the People at trial pursuant to a plea agreement, until trial had already commenced,” the Fourth Department panel wrote.

The new discovery provisions of CPL Article 245 require that the prosecution provide the defense with a record of conviction for all potential prosecution witnesses along with any pending criminal action involving any potential prosecution witnesses.

In Elmore’s case, the new discovery rules would not apply because the two instances of prior criminal conduct allegedly committed by his brother, who was 13 years old at the time the offenses were committed, would have been adjudicated in Family Court, rather than the criminal courts, and any adjudication would not be considered a conviction and the brother could not be considered a criminal as a result of that outcome.

“The People were not required to disclose that information … To the extent that defendant contends that the prosecution’s failure to provide a certificate of compliance in accordance with (Article 245) hampered his ability to present a defense, defendant failed to demonstrate that he was prejudiced,” the Fourth Department wrote.

“He did not identify any evidence or information that he had not received or that he had received too late to use effectively. Thus, Supreme Court did not abuse its discretion in determining that no sanction was required,” the court wrote.

Elmore’s appellate lawyer, Philip Rothschild, also argued that Cuffy should have dismissed the indictment or imposed sanctions due to an unauthorized audio recording of the grand jury proceeding.

“We reject defendant’s contention that the court erred in denying his request that the indictment be dismissed,” the panel wrote.

The Fourth Department ruled that there was no misconduct by the prosecutors.

“Unbeknownst to the grand jury stenographers, their new machines automatically recorded audio files in addition to the stenographer’s shorthand. It was discovered by happenstance when the prosecution inquired of a stenographer in this case about a possible inaccuracy in the transcript. There was no evidence that the recordings were intentionally created or concealed, and the prosecution disclosed them immediately and without prompting,” the court wrote.

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