New York's rules on discovery, or evidence that must be shared with opposing attorneys in criminal cases, are still a work in progress, County Court Judge Donald O'Geen suggested on Friday during hearings in the cases of Michael J. Elmore and Lyndsey J. Wilcox.
Both are charged with felonies related to an incident at Batavia Downs on March 9 and March 10 that led to the death of Sgt. Thomas A. Sanfratello, a 32-year veteran of the Genesee County Sheriff's Office.
Friday's hearing is a standard procedural opportunity to assure the attorneys -- particularly the District Attorney's Office to the defense -- that all documents and other evidence has been disclosed.
It turns out that the Genesee County Jail and the Sheriff's Office did not share some documents, and DA Kevin Finnell was required to file a "supplemental certificate of compliance."
Finnell told O'Geen that his office performed its due diligence in educating local law enforcement on discovery rules, requested all documents from the agencies involved in the case, and a paralegal review of the documents provided did not suggest any missing documents.
Once his office realized some documents had been omitted, he conferred with the Sheriff's Office and Batavia PD and emphasized that "all documents mean all documents."
What was left out were, he said, documents that the jail considered purely administrative and reports from the Sheriff's Office that he said were redundant of documents already disclosed.
Wilcox's attorney, Daniel Dubois, disagreed with that characterization. He said four of the five PDFs he received contained factual information directly relevant to the charges.
"If there was some sort of miscommunication or lack of communication between the District Attorney's Office and the Sheriff's on documents, that isn't our concern," Dubois said.
O'Geen agreed that the situation was disturbing, but he blamed the new law for most of the confusion. There are unresolved issues about what must be disclosed. He said it did seem like the DA's office did its due diligence.
"It is disturbing if local law enforcement can't figure out that 'everything means everything,'" O'Geen said.
In the following hearing, Elmore's attorney shared the same concerns about the document disclosure. He acknowledged that the rules are so new that no upper court rulings have yet defined what exactly constitutes compliance.
O'Geen said both attorneys are welcome to file motions challenging the discovery and gave them until Oct. 1 to file motion papers. He gave Finnell until Oct. 8 to file any answer. If a hearing is necessary, it will be on Oct. 16, the plea cutoff date.
Elmore is charged with multiple criminal counts for his alleged attack on Sanfratello, including aggravated manslaughter in the first degree, and Wilcox also faces several charges, including burglary and assault.
On March 9, both were asked to leave Batavia Downs and while being escorted out, according to reports, a struggle ensured, which escalated to the point where Elmore allegedly left the building and then came back in with heavy chains -- jewelry -- in his hands. He is accused of fighting with Sanfratello, striking him with the chains. It appears that Sanfratello had a medical issue and died on the scene on March 10.
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