Suffolk prosecutors confirmed Thursday that they are appealing a judge's ruling last month that reversed a murder conviction because the prosecution withheld evidence favorable to the defense.
The announcement came as Gabriel Hubbard, now 21, was returned from an upstate prison to face trial again in the July 2008 killing of Jaquan Jones in Wyandanch.
Hubbard was convicted of second-degree murder in 2012 and sentenced by state Supreme Court Justice Martin Efman to 15 years to life, the maximum for a juvenile offender.
Last month, however, Efman threw out the conviction. He ruled that prosecutors violated what is known as the Brady rule by failing to tell Hubbard's defense lawyer at the time that Det. Ronald Tavares, who had taken Hubbard's statement, had also taken a discredited statement from cabdriver Thomas Moroughan.
An off-duty Nassau police officer had shot Moroughan during a Huntington Station traffic dispute in 2011.
Tavares and his partner, Det. Charles Leser, visited Moroughan in Huntington Hospital, where he was demanding to see an attorney, and got him to sign a statement indicating he had acted threateningly toward the officers, Nassau police internal affairs documents said.
Moroughan was charged with assault because of that statement, although he said he never read it and parts of it weren't true. After the charge against him was dropped, Moroughan sued Tavares and Suffolk County in federal court for violating his rights.
Efman said Hubbard might have been acquitted of the 2008 shooting if jurors had known about the Moroughan case, noting that jurors focused almost entirely on the validity of Hubbard's statement during deliberations.
Thursday, after a beaming Hubbard smiled at his wife and mother in a Riverhead courtroom, Assistant District Attorney Laura Newcombe said her office has filed a notice of appeal. She asked that Hubbard be held without bail.
Defense attorney Dan Russo noted that Hubbard is now not convicted of any crime and has already spent 5 years in prison.
Efman ordered Hubbard held without bail and suggested that another judge may preside over a second trial. Russo said that would be a shame.
"All this judge did was have the courage that any other judge in this building should have had" in throwing out a conviction based on a tainted statement, Russo said.