A Suffolk judge has ruled that even though prosecutors failed to tell a murder defendant's attorney that a trial witness was an active police informant, that's not enough to set aside the defendant's conviction.
In a decision released this week, State Supreme Court Justice Mark Cohen ruled that Rudolph Bisnauth, 28, of Wheatley Heights, can't have a new trial because there was enough other evidence to convict him of killing Jeremiah Armstrong without the testimony of the informant, Timothy Rich.
Bisnauth's appellate attorney, Joseph Ferrante of Hauppauge, said Friday he was shocked by Cohen's decision. "I'm surprised," he said. "Very surprised."
Ferrante sought a new trial for Bisnauth based on a violation of what is known as the Brady Rule.
That rule generally compels prosecutors to turn over any evidence favorable to a defendant, including material that could undermine the credibility of prosecution witnesses.
That was clearly the case here, Ferrante argued, and Cohen agreed in his decision. The Suffolk district attorney's office declined to comment. Rich, 35, testified during the trial about the events that led to Armstrong, 47, getting killed at his Wyandanch home.
Prosecutors said two of Rich's friends, Bisnauth and Michael McKenzie, 25, fired about 20 shots at a group of people outside the house on June 1, 2009, killing Armstrong.
McKenzie pleaded guilty to first-degree manslaughter and was sentenced to 25 years in prison.
Bisnauth was sentenced to 25 years to life.
Rich was the only witness who could tie all the pieces of the crime together, Ferrante said, and initially was considered a suspect. But Bisnauth's trial attorney didn't know that Rich had a cooperation agreement with police and prosecutors to provide information on drug cases.
Ferrante said if the trial lawyer had known that, he would have been able to ask Rich if he was tailoring his testimony to satisfy prosecutors. There is a reasonable possibility the verdict might have been different, he said -- the standard for overturning a verdict.
Cohen wrote that the defense should have known about the cooperation agreement and that it "would clearly be usable" to attack Rich's credibility.
Still, he wrote, "There is no reasonable possibility that the outcome would have been different if the information had been provided."
Ferrante said he was sure an appeals court will find differently.