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Judge tosses new case after HPD evidence error


Czajka says police did not provide have ID evidence in case of gunshot in city

CLAVERACK–District Attorney Paul Czajka won another round in Columbia County Court last week in the ongoing legal sparring over prosecutorial discretion. At the same time the Hudson Police Department took another hit for mishandling evidence, with the mayor expressing outrage at the second such problem that has come to light in the last two months.

This time the issue erupted during the January 22 pre-trial hearing of Kerwin A. Jones, when County Judge Richard Koweek agreed with fellow County Judge Jonathan Nichols and issued a ruling that upholds DA’s authority to determine which cases he will prosecute and which cases he won’t. Mr. Jones, 36, of Troy was arrested by Hudson Police May 28 of last year and was subsequently indicted for second degree criminal possession of a weapon and first degree reckless endangerment. He was accused of firing a 9 mm handgun into a group of people standing in front of 34 North Fifth Street at about 2:30 p.m. on Memorial Day. No one was hurt.

But Judge Koweek ended up dismissing the charges against Mr. Jones after the DA said Hudson Police failed to turn over key evidence, a situation Hudson Mayor William H. Hallenbeck, Jr. has vowed to look into.

Hudson Police Chief Ellis Richardson said he had heard nothing about the matter from the DA.

According to a court transcript of the proceeding provided to The Columbia Paper by the DA, Mr. Jones’ defense attorney, Shane Zoni, told Judge Koweek that it had come to his attention that a photo array had been “conducted” by Hudson Police. A photo array is an identification procedure in which a witness is shown a series of photos of similar-looking possible perpetrators of the crime, including the police suspect. A civilian witness picked Mr. Jones out of the array and identified him as the alleged perpetrator. The DA intended to use the identification in court, but Mr. Zoni said because the defense had not received notice of the photo array or the civilian eye witness from the DA as required by law, he sought to preclude the witness from testifying in court and identifying his client.

When the judge asked the DA to weigh in on Mr. Zoni’s request, Mr. Czajka presented 12-pages worth of Hudson Police reports that were marked into evidence.

Assistant District Attorney David Costanzo discussed the reports and pointed out that in the section titled “ID Procedure,” police had not checked off any of the options, which indicated that no ID procedure was performed. Mr. Costanzo went through all the police reports the DA’s Office had received, noting, “Nowhere in any of the items that we’ve received from the Hudson Police Department is there any photo array, any type of material to indicate that there was any type of identification procedure.” Also not among the reports was any deposition from any witness who had taken part in an identification procedure and picked out Mr. Jones as the perpetrator.

DA Czajka noted his duty to provide the defendant with notice of an identification procedure within 15 days of arraignment, a date long past in this case, and told the judge his office “never had formal notice of the… photographic array” from Hudson Police. He said his office did eventually find out about it the week before the hearing and did bring it up with police at that time.

The DA also called Judge Koweek’s attention to an unrelated case heard by Judge Nichols last year. Though he did not mention the defendants’ names, the DA said that the case had been dismissed because Hudson Police failed to provide their entire file, including a forensic testing document, to his office in a timely manner so he could provide it to the defense.

In the earlier case “police officers testified under oath that they had brought their entire file with them,” said the DA, adding that it was not until some weeks later that the forensic testing document was given to his office. This earlier case, the subject of a story in The Columbia Paper December 13, 2012, involved former alderman Quintin Cross and Jamont McClendon, both of whom were accused of a March 2012 break-in at City Hall during which less than $100 stolen. The DA took that case back to a Grand Jury and the indictment was dismissed.

In the latest case, involving Mr. Jones, the DA said he had no legal defense for not having provided the information about the photo array to Mr. Zoni.

Judge Koweek granted Mr. Zoni’s motion to preclude the eyewitness, which left the DA without sufficient evidence to proceed with the prosecution of the case.

Mr. Zoni then requested that the indictment against his client be dismissed and Mr. Czajka did not object.

In his decision to dismiss the case, Judge Koweek brought up the issue of prosecutorial discretion, noting that at least three opinions on the matter had been written with the “best and most reasoned opinion” by Judge Nichols. “It’s my belief that the People have full discretion as to whether or not to proceed,” said Judge Koweek, noting that in light of the DA’s assertion that there is insufficient evidence to proceed, he granted the motion to dismiss the charges against Mr. Jones.

Reached after Judge Koweek’s ruling, Mayor Hallenbeck said he continues “to support the efforts of the men and women of the Hudson Police Department who put their lives on the line daily for the residents of the City of Hudson,” but the Mayor said that he is “deeply concerned about the apparent deficiencies in the chain of custody of evidence in criminal matters being investigated by the Police Department. To think that this could happen twice in less than a year, quite frankly, is an outrage to me.”

The mayor, who has a 21-year background in law enforcement, both with the Hudson Police Department and the Sheriff’s Office, said he is working with Police Commissioner Gary Graziano and City Attorney Cheryl Roberts and “will do everything in my power not only to discover why this occurred, but also demand accountability should it be warranted.”

Chief Richardson told The Columbia Paper Wednesday, “What was communicated to you by the district attorney was never communicated to HPD. I’d like to think if there is a problem with a case, the arresting agency would be the first phone call made. I have not heard from the DA as to why the case was dismissed.”

Saying he would not “engage in media finger-pointing because it will not serve anyone,” Chief Richardson said he and his department will continue to try to work with the DA’s Office and provide “whatever they require of us to better serve the community and the court. We are both charged with protecting the people.”

To contact Diane Valden email


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