A judge Tuesday denied a defendant in a murder case access to police and prosecutors' probes involving a detective who investigated the shooting of an unarmed cabdriver by an off-duty Nassau cop.
State Supreme Court Justice William Condon in Riverhead issued his ruling from the bench, saying Suffolk prosecutors do not intend to call the detective, Ronald Tavares, as a witness in the murder case. Therefore, the judge concluded, the inquiries into the cabdriver shooting are not relevant to the murder case.
Tavares took the defendant Aston Barth's statement in the murder case. He also was one of two detectives who took the cabdriver's statement.
"I am extremely disappointed," said Barth's attorney, Scott Gross of Garden City.
The defense in the Barth case had asked for a Suffolk police internal affairs report and information gathered by Suffolk prosecutors. Gross argued that the report was relevant to his case because it could shed light on Tavares' credibility.
Suffolk District Attorney Thomas Spota and the police objected to the defense request. Prosecutors said their probe did not produce a report.
Suffolk Assistant County Attorney Rudolph Baptiste, representing the police department, confirmed that a police internal affairs report exists, but is not relevant to the Barth case.
Last week, Condon said he would review the material before ruling, but he made his decision without doing so.
The judge also denied the defense request, he said, because the Suffolk internal affairs report is under seal at the order of a federal magistrate presiding over a lawsuit filed by the cabdriver.
Gross had argued that his client should have access to the information under the Brady rule, which requires prosecutors to disclose any exculpatory evidence they have to criminal defendants.
"The Brady rule does not apply to individual witnesses, but to the department as a whole," Gross said after court. "Whether Tavares is being called as a witness is immaterial."
In the murder case, Barth, 33, of Central Islip, is charged with killing next-door neighbor Jason Campbell, 35, in December with an ax.
In February 2011, off-duty Nassau Officer Anthony DiLeonardo shot and injured the cabdriver, Thomas Moroughan, during a traffic dispute in Huntington Station, a Nassau internal affairs said. Suffolk police arrested Moroughan and charged him with assaulting DiLeonardo. Three months later, Spota dropped the charges.
The Nassau internal affairs report found that Moroughan signed a sworn statement Suffolk homicide detectives wrote for him while in the hospital with a broken nose, on morphine and with two bullets still inside him. The statement incriminated Moroughan and exonerated DiLeonardo, the report states.
Later, it was shown that the Moroughan statement included events contradicted by the police department's own investigation, the report concluded.
Bennett Gershman, a professor at Pace Law School in Manhattan, said Suffolk prosecutors should turn over the files.
"To me, this information would be exculpatory or information that would impeach their credibility if they were witnesses at a trial and where their credibility may be questioned," Gershman said.
Baptiste told the judge it was routine for the police department to open an internal affairs investigation when it is sued.
Baptiste and prosecutor Glenn Kurtzrock, who is handling the murder case, told the judge they have not read the Suffolk report, but assured the judge that it does not contain exculpatory material.
"It's double talk," Gross said. "If they haven't looked at it, how would they know."