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Court has reservations with appeal by Suffolk prosecutor

Gabriel Hubbard, now 22, was convicted in 2012

Gabriel Hubbard, now 22, was convicted in 2012 of shooting to death Jaquan Jones on July 5, 2008, in Wyandanch. Hubbard's murder conviction was thrown out on July 25, 2014, and a new trial ordered. Credit: SCPD

A Suffolk prosecutor argued Tuesday that a Brooklyn appellate court should reinstate a murder conviction that a judge threw out last year, but some of the justices appeared to have the same concerns that the trial judge did.

Last year, state Supreme Court Justice Martin Efman reversed the murder conviction of Gabriel Hubbard, now 22, after he ruled the prosecution should have alerted the defense that the same detectives who got him to sign a confession had earlier produced a discredited confession from a cabdriver shot by an off-duty Nassau County officer in Huntington Station.

Hubbard was convicted in 2012 of shooting Jaquan Jones to death in 2008. Efman sentenced Hubbard to 15 years to life after the verdict by a jury, which focused on the legality of the confession during its three days of deliberation.

Under what is known as the Brady rule, prosecutors generally are obligated to turn over to defendants any information they have that could be helpful to their defense. In this case, Efman ruled that jurors should have known that Dets. Ronald Tavares and Charles Leser visited cabdriver Thomas Moroughan at Huntington Hospital, where he was medicated and demanding to see an attorney, and got him to sign an incriminating statement in 2011.

That didn't become known until 2013, when Newsday reported that a Nassau internal affairs report found that key portions of the Moroughan statement written by Tavares couldn't have happened.

By then, Assistant District Attorney Raphael Pearl -- who also prosecuted Hubbard -- had dropped the charges against Moroughan. The cabdriver is suing Tavares and Suffolk County in federal court claiming his rights were violated.

Efman ruled that if Hubbard's jurors knew that the Nassau internal affairs report had found problems with the Moroughan statement, it might have put less stock in the statement Tavares took from Hubbard and acquitted him.

Assistant District Attorney Glenn Green told justices at the Appellate Division's Second Department that nothing about the problems with the Moroughan statement -- which he called "99 percent accurate" -- needed to be disclosed to the Hubbard defense, because no court had found any wrongdoing.

"That is not required," Justice L. Priscilla Hall told Green, sharply. "You have a responsibility that if you have something in your file that is favorable to the defense, even on the credibility of a witness, to turn it over."

Several times Hall told Green to stop interrupting justices as they spoke.

Louis Mazzola, Hubbard's Legal Aid Society appellate attorney, said his client likely would have been acquitted if his trial attorney knew about the Moroughan statement then.

"It should come as no surprise that a district attorney finds that something is not Brady material," Mazzola said. "It's certainly appropriate for a defense attorney to question a witness' credibility."

Justice Jeffrey Cohen noted that the statement Tavares and Leser took from Hubbard was the focus of that case.

"It's a rather weak case without the confession," Cohen said. "Without the confession, there's no case."

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