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Gabriel Hubbard's murder conviction tossed, new trial ordered

Gabriel Hubbard, left, 21, was convicted in 2012

Gabriel Hubbard, left, 21, 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. Det. Ron Tavares leaves Riverhead Criminal Court after giving testimony on March 23, 2010. Credit: SCPD and Joseph D. Sullivan

A Suffolk judge has thrown out a murder conviction and ordered a new trial, ruling that the prosecution should have alerted the defense that the same detectives who got the defendant to sign a confession had produced a discredited confession from a cabdriver shot by an off-duty Nassau County officer in Huntington Station.

"The court is compelled to grant the defendant's motion to vacate the conviction," said state Supreme Court Justice Martin Efman, as he set aside the conviction of Gabriel Hubbard, now 21, who was convicted in 2012 of shooting Jaquan Jones to death in 2008. Hubbard was sentenced by Efman 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.

"I'm speechless," said an elated Louis Mazzola, Hubbard's Legal Aid Society appellate attorney. "I think the judge made the right decision. The kid is entitled to a new trial, to a fair trial."

The Suffolk district attorney's office said the judge got it wrong.

"We vehemently disagree with Judge Efman's decision and intend to appeal," spokesman Robert Clifford said.

Efman ordered Hubbard returned to the Suffolk County jail from an upstate prison next month in preparation for a new trial.

Cabdriver case resurfaces

The decision could affect other seemingly settled cases. The attorney for Aston Martin Barth, who was denied access to Det. Ronald Tavares' personnel records by another judge and pleaded guilty in January to killing his neighbor with an ax, said he may move to withdraw his client's plea.

"It changes the whole landscape," attorney Scott Gross said of the decision. He said if Barth could have used Tavares' involvement in the cabdriver case, he'd have had a better chance at trial or been able to negotiate a more favorable plea deal. Barth was sentenced to 15 years to life.

In his written decision, Efman said Hubbard's trial attorney repeatedly demanded evidence to which he was legally entitled, including paperwork that would show a prosecution witness "has engaged in lying, deceitful or otherwise mendacious activity . . . or has in the past made false or misleading reports of criminal or otherwise improper conduct."

Defense attorneys are entitled to such information under what is known as the Brady rule, which generally requires prosecutors to give to defendants any evidence that could lead to acquittal.

Before Hubbard's pretrial hearings or his trial, the same detectives and prosecutor in his case were involved in a case in which an off-duty Nassau police officer shot cabdriver Thomas Moroughan in 2011. Dets. Tavares and Charles Leser visited Moroughan in Huntington Hospital, where he was demanding to see an attorney, and got him to sign a statement indicating he acted threateningly toward the officers, Nassau police internal affairs documents said.

Because of that statement, Moroughan was charged with assault, although he said he never read it and parts of it weren't true. Moroughan sued Tavares and Suffolk County in federal court for violating his rights. That suit is pending.

In June 2013, Newsday reported that the Nassau police Internal Affairs Unit report found the officer unlawfully shot and beat the unarmed cabdriver after a night of drinking. The Nassau report also stated that key portions of Moroughan's confession couldn't have happened.

The Nassau officer was Anthony DiLeonardo, who has since been fired.

Judge: Jury was deprived

Assistant District Attorney Raphael Pearl -- Hubbard's prosecutor -- later dismissed the charges against Moroughan.

"The threshold issue is whether the Moroughan statement taken by Det. Tavares falls within the Brady responsibilities of the People," Efman wrote. "Clearly, it does. The allegations were favorable to defendant and would have impeached a key witness at trial."

But Clifford said the so-called Brady materials were "either publicly available to the defense, or were unknown and unavailable to the prosecutor. We fail to understand how we could have turned over evidence in a sealed proceeding we were not present at, a party to, or had any access to."

Efman noted that the statement taken by Tavares from Hubbard was the focal point of the trial.

In Pearl's summation, he asked jurors: "Did you hear one question [from the defense] posed to him [Tavares] about how he's ever been accused of wrongdoing, an IAB [Internal Affairs Bureau] investigation, sued by a defendant for violating their right? If it existed, don't you think you would have heard it at this trial?"

Efman said eight of the nine notes that jurors sent requesting legal or evidentiary information during their deliberations concerned statements Tavares took from Hubbard.

Because the defense and the jury didn't know about the Moroughan case then, Efman wrote, "the jury was deprived of its right to fairly assess the credibility of an important witness . . . and arrive at an independent conclusion."

Efman wrote if the jury had known about the Moroughan case, "there is a reasonable probability that . . . the outcome of this trial would have been different."

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