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Evidence in 45 Nassau cases being retested after lab error found

Nassau County police cars in Syosset on Dec.

Nassau County police cars in Syosset on Dec. 28, 2013. Police are intensifying patrols at religious places of worship the week of April 14, 2014 as Long Islanders of different faiths observe the holidays and in light of Sunday's deadly shootings at two Kansas Jewish centers. Credit: Jim Staubitser

The Nassau County district attorney's office said it has ordered retesting of ballistics evidence in about 45 criminal cases after police found an error in lab work completed by an out-of-state facility for a case that's still open.

Police found a mistake that one lab technician made in ballistics testing in a pending Nassau case, and has since ordered retesting of evidence in every case that particular technician has worked on, said Shams Tarek, a spokesman for District Attorney Kathleen Rice. The Nassau Police Department declined to comment.

"It's basically saying to them the person that touched your ballistics made a mistake in another case. So in an overabundance of caution, we've demanded that evidence in your case be retested," Tarek said of letters Rice's office sent to defense lawyers.

Rice's spokesman said 32 cases were open and there were 14 cases in which the defendant was already sentenced. At least some involved homicide cases, according to local defense lawyers.

"There was a mistake in one case. And that mistake was not used against anyone in any case," Tarek said.

Defense lawyer Greg Madey said Monday he received one of the letters in connection with a murder case that hasn't yet gone to trial. He said the letter has given him concerns about evidence in the case and he's glad for the retesting.

"Before we even start the case, it already puts into question the police work. You just sort of question how the investigation is conducted," he said.

Defense attorney Michael DerGarabedian said Monday he received one of the letters in connection with a client who was convicted of second-degree murder. It was a case in which the defendant, Jerod Plowden, already was seeking an appeal because of other issues.

A Nassau County judge previously declined to throw out the verdict in Plowden's case after allegations of juror misconduct, saying in December that he saw issues in the case, but only those an appellate court might address.

A jury convicted Plowden of second-degree murder and robbery in the 2011 Freeport slaying of Moez Hassan, 23, outside an abandoned Freeport house. Authorities had said Plowden and another defendant met Hassan to buy Xanax pills before the deadly shooting.

"There were so many problems with the case, now to add another one, it's ridiculous," said DerGarabedian.

Attorney Martin Geduldig of Garden City said he received a letter from Rice's office informing him that a lab technician's work on his client's case was being retested, delaying his client's sentencing in a murder case.

The client, Herber Guzman, was convicted in October of second-degree murder in the April 2012 killing of Stanley Cater, 46, of Hempstead.

"It's conceivable, if they could show that the weapon used to murder the victim was not the same weapon they are claiming Guzman had, then you don't have the murder weapon anymore," he said. "There is a circumstance that could lead to a reversal."

Rice's spokesman said that in the case where the mistake was found, the lab technician originally found no matches for certain ballistic evidence at a crime scene. But after retesting, he matched the evidence to a specific gun. Tarek said that person won't be involved in further tests of Nassau evidence and that the district attorney's office has insisted the lab pay for all retesting. Tarek identified the facility as NMS Labs, saying it has operations in Texas and Pennsylvania. He said the oldest case dates to February 2013.

No one could be reached for comment at the company Monday evening.

It isn't the first time problems have cropped up with evidence testing for Nassau cases.

Mistakes caused the police crime lab to shut down in 2011. Nassau has received bids to build a new crime lab, now under the auspices of the medical examiner, at the county's New Cassel public safety center. Since the lab closed, Nassau has spent $1.7 million on all retesting of ballistics, drug, fingerprint and trace evidence, a law enforcement official said Monday.

"It's interesting that no matter what is done with the lab, from putting it on probation, closing it down, or sending it to Texas for justice by proxy, the issues just keep coming," said Steven Raiser, a criminal defense attorney and president of the Nassau Criminal Courts Bar Association.

The new lab has already taken on much of the work of the shuttered police lab and can now do fingerprint and drug evidence testing, following its accreditation for those specialties in spring 2013.

With Nicole Fuller, Kathleen Kerr and Zachary R. Dowdy

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