An appellate court tersely upheld a Wheatley Heights man’s 2012 murder conviction, ruling that the verdict likely would have been the same even if Suffolk prosecutors had acted properly during the trial.
The decision, issued Wednesday by the Appellate Division Second Department in Brooklyn, kept in place the conviction of Rudolph Bisnauth, 31. He was found guilty of taking part in the fatal shooting of Jeremiah Armstrong, 37. Another man — the shooter — Michael McKenzie, 30, pleaded guilty to first-degree manslaughter in the case.
Prosecutors say McKenzie sprayed the front of Armstrong’s house with gunfire — after Bisnauth unjammed the gun for him — after a friend of theirs, Timothy Rich, had a dispute with Armstrong’s daughter. Rich and the daughter had a child together, but she broke up with him and canceled the insurance on his car after she found out he was engaged and living with another woman, according to court papers. Friends of Armstrong’s daughter threatened Rich and then he called her and warned her to get out of the Wyandanch house before the shooting.
Bisnauth’s appeal argued that lower courts let prosecutors violate his client’s rights in several ways.
One was not telling Bisnauth’s trial attorney that Rich, who testified at the trial, was an informant on drug cases at the time of the crime. Under what is known as the Brady rule, prosecutors are generally required to turn over any evidence to defendants that could be helpful.
But the appellate court said the evidence besides Rich’s testimony was so overwhelming that it made no difference.
“There was no reasonable possibility that such nondisclosure affected the outcome of the trial,” the court said in its two-page decision.
“We’re pleased with the decision,” said Assistant District Attorney Michael Miller. “In our view, Rich’s information [about his being an informant] was not material. ... You could impeach Timothy Rich forever, but it really wouldn’t matter because other people laid it out all on the record.”
Bisnauth’s appellate attorney, Joseph Ferrante of Hauppauge, said the court’s reasoning made no sense to him. Rich’s background would have made him a juicy target during cross-examination if the trial attorney had known about it, he said.
“I was floored,” Ferrante said. “It’s one of the few things a defense attorney has [at trial, to be able to tell a witness], ‘You’re a guy who gets into trouble and tells stories to get out of trouble.’”
The court also ruled against Ferrante’s contention that the trial prosecutor, Assistant District Attorney Robert Biancavilla, questioned two witnesses improperly. The law generally does not allow attorneys to challenge the credibility of their own witnesses, but Biancavilla did that twice when prosecution witnesses did not initially testify that the gun jammed while McKenzie was firing it.
The court ruled that the error was harmless and likely had nothing to do with the conviction in light of the other evidence.