An unusual hearing began Wednesday in a Riverhead courtroom to find out which witness statements in a 2010 killing were examined by a trial judge, so that an appellate court can determine if they should have been turned over to the defense.
The reconstruction hearing — so named because its purpose is to reconstruct events in court not recorded in the transcript — was ordered earlier this year by the Appellate Division Second Department in the case of Joseph DeFelice, now 39, of North Amityville. He was convicted in 2013 of second-degree murder, criminal facilitation and hindering prosecution for his role in the Aug. 23, 2010, killing of his girlfriend, Mandy Jo Jenkins.
The hearing also marked a return to a Suffolk courtroom for Martin Tankleff for the first time since his murder conviction in the 1988 deaths of his parents was overturned in 2008. Tankleff, who is waiting to see if he will be admitted to practice law, assisted DeFelice's attorney, Steven Metcalf of Manhattan.
The appellate court put DeFelice's appeal on hold because it couldn't resolve a key issue — whether defense attorney Richard Stafford of Bohemia was entitled to certain witness statements. Stafford argued he should have them under what is known as the Brady rule, which generally requires prosecutors to turn over evidence favorable to the defense.
Stafford believed the statements said DeFelice's co-defendant childhood friend, David Newbeck, committed the murder alone, with no assistance from DeFelice. If so, that would support his argument at trial that he did nothing to help Newbeck, who also was convicted of murder. Prosecutors argued at trial that DeFelice gave Newbeck access to his apartment to kill Jenkins and took his Rottweiler for a walk while Newbeck shot her five times as she slept.
But the appellate court said it couldn't rule on whether the statements should be turned over because the witness statements were reviewed privately during the trial by Suffolk County Court Judge John Toomey Jr., who decided the defense was not entitled to them. The Suffolk district attorney's office said in appellate filings that it no longer had the statements.
State Supreme Court Justice William Condon limited the hearing Wednesday to what trial prosecutor Robert Biancavilla turned over to Toomey, leaving the determination of whether the defense should have it to the appellate court. Whenever Metcalf tried to ask Toomey and Biancavilla — both now retired — during the hearing what the statements said, Condon cut off the questioning.
Assistant District Attorney Frank Schroeder said in reviewing the file, he found the statements that his colleagues in the district attorney's appeals bureau had said were no longer there. In a large brown envelope, he said there were six witness statements from five people.
Metcalf asked to see the statements, but Condon agreed with Schroeder that the items were still under seal.
At the hearing, Toomey testified that during the trial he had read the statements and ruled the defense was not entitled to them under the Brady rule, so he returned them to the district attorney's office.
District Attorney Timothy Sini, who took office in January, has made complying with Brady and other discovery rules a priority for his office. He watched the hearing and said afterward he did not know if the statements in question would have been turned over under his policies.
Metcalf and Tankleff said they believed they would have, and they were encouraged by Sini's presence.
"I think he recognizes the previous administration had a history of Brady violations," Tankleff said, referring to a half dozen murder cases in which charges were dismissed or reduced.
Sini said later that may be the case, but he said the decision to withhold these statements from the defense was the right one, and that complying with Brady and other discovery rules doesn't mean his office will turn over evidence when it's not appropriate. He also cautioned against reading too much into his presence.
"Sometimes I just go [see a case] because I'm in the building and I want to show my support," he said. In this case, he said he also took advantage of the rare chance to see a reconstruction hearing.
Metcalf said if the statements say Newbeck committed the killing on his own, that would have been important for Stafford.
"If a statement can lead to a defense attorney going down a different avenue, it should be turned over," Metcalf said.
For himself, Tankleff said it was satisfying to return to Riverhead as something other than a defendant.
"It's quite a difference to go from being a defendant to assisting in the defense of an individual," he said.
The hearing will resume Jan. 7.