APL-2017-00162

Court of Appeals
State of New York

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

- against -

GARY THIBODEAU,
Appellant.

BRIEF IN SUPPORT OF MOTION FOR REARGUMENT

Lisa A. Peebles
Federal Public Defender
4 Clinton Square, 3rd Floor
Syracuse, New York 13202
P: (315) 701-0080; F: (315) 701-0081
lisa.peebles@fd.org
James P. Egan, AFPD
on brief

July 11, 2018

 Table of Contents

Table of Authorities ....................................................................................ii

Preliminary Statement............................................................................... 1

Legal Background ....................................................................................... 3

Argument .................................................................................................... 3

Conclusion ................................................................................................. 16

Affidavit of Service ................................................................................... 17

i
 Table of Authorities

CASES
Bearden v. State, 161 So.3d 1257 (Fla. 2015) .................................. 4, 5, 7
Chambers v. Mississippi, 410 U.S. 284 (1973) .................................... 4, 9
Kubsch v. Neal, 838 F.3d 845 (7th Cir. 2016) (en banc) .............. 9-10, 14
Mount v. Mitchell, 32 N.Y. 702 (1865) ..................................................... 3
People v. Darrisaw, 206 A.D.2d 661 (3d Dept. 1994) ........................ 3, 15
People v. Harding, 37 N.Y.2d 130 (1975) ............................................... 11
People v. Harris, 56 A.D.3d 1267 (4th Dept. 2008) ................................. 6
People v. Oxley, 64 A.D.3d 1078 (3d Dept. 2009) .................................. 3-4
People v. Settles, 46 N.Y.2d 154 (1978) ............................................ 11, 12
People v. Thibodeau, 2018 WL 2975538 (N.Y. June 14, 2018) ............... 2
State v. Brown, 96 Wis.2d 238 (1980) ...................................................... 5
State v. Cazares-Mendez, 227 P.3d 172 (Or. Ct. App. 2010) ................... 8
State v. Cazares-Mendez 350 Or. 491 (2011) ........................................... 8
State v. Meister, 220 P.3d 1055 (Idaho 2009) .......................................... 8
Thomas v. State, 580 N.E.2d 224 (Ind. 1991) .......................................... 8
United States v. Kuzniar, 881 F.2d 466 (7th Cir. 1989) ......................... 5
United States v. Scheffer, 523 U.S. 303 (1998) ........................................ 3

RULES
22 NYCRR § 500.24 .................................................................................. 3

OTHER
Barry Scheck et al., Actual Innocence: Five Days to Execution and
Other Dispatches from the Wrongly Convicted 246 (2000) .................. 14
Northwestern Univ. Sch. of Law, Center on Wrongful Convictions, The
Snitch System: How Snitch Testimony Sent Randy Steidl and Other
Innocent Americans to Death Row 3 (2004-2005).................................. 14
Black’s Law Dictionary (10th ed. 2014) .................................................... 7
Fisch, New York Evidence ...................................................................... 12
ii
Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel
Vision in Criminal Cases, 2006 Wis. L. Rev. 291 (2006) ...................... 14
Richardson, Evidence (10th ed.) ............................................................ 12

iii
“Any rule which hampers an honest man in exonerating himself is a bad rule, even
if it also hampers a villain in falsely passing for an innocent.”

5 John H. Wigmore, Evidence in Trials at Common Law § 1477, at 359 (Chadbourn

ed. 1974).

__________________

Preliminary Statement

Several years after Gary Thibodeau was convicted of kidnapping

Heidi Allen from a convenience store, three people confessed that they

were responsible for the crime. On the basis of these newly discovered

confessions and other evidence, Thibodeau moved for a new trial. That

motion was denied after the lower courts concluded the confessions were

inadmissible under New York State’s penal interest exception to the

hearsay rule. On appeal to this Court, Thibodeau argued that the

confessions satisfied the penal interest exception and the lower courts’

application of the hearsay rules violated his federal constitutional right

to present a defense.

Without ever mentioning the right to present a defense, a majority

of this Court excluded the confessions. According to the majority, third-

party confessions are only admissible, in a case like this, when the

proponent first provides non-hearsay evidence connecting the declarants

1
to the crime scene or the victim’s presence near the time of the crime.

The majority held that, without that “requisite” independent evidence,

any reliance on the number and nature of the statements, even

considered collectively, “completely undermines our evidentiary rule of

independent corroboration to ensure the reliability of the declaration

against penal interest and is plainly inconsistent with Chambers.” See

Affirmation of Lisa A. Peebles, Exhibit A, at 8; People v. Thibodeau, 2018

WL 2975538 (N.Y. June 14, 2018).

The dissent found the confessions admissible as statements against

penal interest, explaining that even in the absence of non-hearsay

evidence connecting the declarants to the crime scene or to the victim’s

presence, the number and “interconnected and mutually-confirming

nature” of the confessions, among other surrounding circumstances,

rendered them sufficiently reliable. See Id. at 25 (Rivera, J., dissenting).

Because the majority’s decision is contrary to Supreme Court law,

overlooks and misapprehends federal law establishing a defendant’s

right to present exonerating hearsay evidence, and is in conflict with

decisions in this and other jurisdictions, this Court should grant

reargument.

2
 Legal Background

Pursuant to 22 NYCRR § 500.24, a party may seek reargument of

an appeal within 30 days of this Court’s decision. As explained in §

500.24(c), “[t]he motion shall state briefly the ground upon which

reargument is sought and the points claimed to have been overlooked or

misapprehended by the Court.” See also Mount v. Mitchell, 32 N.Y. 702

(1865) (“Motions for reargument should be founded on papers showing

clearly that some question decisive of the case, and duly submitted by

counsel, has been overlooked by the court; or that the decision is in

conflict with an express statute, or with a controlling decision, to which

the attention of the court was not drawn, through the neglect or

inadvertence of counsel.”).

Argument

It is now generally accepted that states have “broad latitude to

establish rules excluding evidence,” including hearsay statements.

United States v. Scheffer, 523 U.S. 303, 308 (1998). However, “‘where the

[hearsay] statement forms a critical part of the defense, due process

concerns may tip the scales in favor of admission.’” People v. Oxley, 64

A.D.3d 1078, 1084 (3d Dept. 2009) (quoting People v. Darrisaw, 206

3
A.D.2d 661, 664 (3d Dept. 1994)). This is because, as the Supreme Court

has observed, “[f]ew rights are more fundamental than that of an accused

to present witnesses in his own defense.” Chambers v. Mississippi, 410

U.S. 284, 302 (1973). Accordingly, “where constitutional rights directly

affecting the ascertainment of guilt are implicated, the hearsay rule may

not be applied mechanistically to defeat the ends of justice.” Id.1 In

excluding the newly discovered confessions, this Court relied on a

mechanistic application of New York State’s hearsay rules that violated

Thibodeau’s due process rights.

The majority’s rejection of the newly discovered confessions rested

on a conclusion that “the independent corroboration necessary for

admissibility of the declarations against penal interest was not

sufficient.” See Peebles Affidavit, Exhibit A, at 6. However, the majority

flatly refused to consider whether the number and nature of the

interconnected and mutually-confirming statements might, by

themselves or in combination with other proffered circumstances

1See also Bearden v. State, 161 So.3d 1257, 1265-66 (Fla. 2015) (“‘[A] trial judge
may be required to admit a third-party confession under constitutional principles,
even if it does not qualify as a declaration against penal interest under state law of
evidence.’”) (citation omitted).

4
surrounding the confessions,2 sufficiently demonstrate the reliability of

each newly discovered confession, claiming that doing so would

“completely undermine [the] evidentiary rule of independent

corroboration” and would be “plainly inconsistent with Chambers.” Id. at

8 n. 4. Instead, the majority held that these separate confessions may

only cross-corroborate each other if the defendant first establishes the

“requisite independent corroboration of the hearsay evidence.”3 Id. at 8.

2 One such circumstance concerns the existence of a cabin generally meeting Steen’s
description where three cadaver dogs separately alerted to the presence of human
remains. The majority brushes this evidence aside, claiming that it, alone, “does
not provide the corroboration necessary to ensure the reliability of such a
speculative theory.” Peebles Affidavit, Exhibit A at 8. But the cadaver canine
evidence was not offered in isolation. And Steen’s detailed confession about
abducting and murdering Allen and disposing of her remains hardly constitutes a
“speculative theory.” As the dissent found, the majority’s reliance on the purported
condition of the cabin at the time of the abduction to undermine Steen’s confession
fares no better. Id. at 33 n.6 (Rivera, J., dissenting).

3Citing to the Lindbergh baby case, the majority suggests that “[t]he need for
corroborating evidence is especially apparent in high-profile cases, as it is not
uncommon – for a variety of reasons – for individuals to make statements claiming
responsibility for notorious crimes they did not commit.” Peebles Affidavit, Exhibit
A at 6, n. 2 (citation omitted). Perhaps it is, but the majority does not suggest that
this is such a case. In any event, this case is clearly distinguishable from the
Lindbergh baby one, as this case involves only three confessors, one of whom
explicitly implicated the other two. Moreover, there is no evidence that any of the
declarants confessed in an attempt to obtain notoriety. Finally, the majority’s
concerns with false confessions in notorious cases – though having no application
here – suggests that it accepts that the confessions were actually made, which
would render moot whatever concerns it has about the in-court witnesses’
credibility, an issue that, in any case, is better left for a jury. See State v. Cazares-
Mendez, 350 Or. 491, 506 (Or. 2011) (en banc) (“In considering ‘trustworthiness’ for
purposes of determining whether a hearsay exception applies, the credibility of the
relating witnesses—the individuals who testify as to what the declarant said—is not

5
The majority took this requisite independent corroboration to be non-

hearsay evidence establishing the third-party’s connection to the crime,

which, in this case, would amount to non-hearsay evidence connecting

the declarants to the convenience store or to Allen’s presence near the

time of the crime.4 Id. at 7. This was erroneous.

All parties agree that a defendant must present corroborating

evidence to assure the reliability of hearsay confessions. The dispute

the issue.”); State v. Brown, 96 Wis.2d 238 (1980) (“Exclusion of the witness’s
testimony (and the hearsay statement) because of the trial court’s doubts as to the
witness’s credibility constitutes a judicial assumption of the jury’s function. Unless
a witness’s testimony is deemed incredible as a matter of law, the credibility of the
witness is irrelevant in the trial court’s determination of whether the proffered
third-party statement should be admitted.”); United States v. Kuzniar, 881 F.2d
466, 470 (7th Cir. 1989) (“It is axiomatic that, absent exceptional circumstances,
issues of witness credibility are to be decided by the jury, not the trial judge.”).

4 It is worth noting that Thibodeau did offer evidence connecting Steen to the crime
scene through William Pierce’s testimony and all three men to Allen near the time
of the crime through the recording of Jennifer Wescott. Had this newly discovered
evidence been available at trial, there is no question that Thibodeau would have
been able to introduce the testimony of William Pierce, which, though the County
Court did not credit, it did not and could not find incredible as a matter of law. See,
e.g., People v. Harris, 56 A.D.3d 1267, 1268 (4th Dept. 2008) (holding testimony
incredible as a matter of law when it is “manifestly untrue, physically impossible,
contrary to experience, or self-contradictory.”). Pierce’s testimony would have
established Steen’s connection to the crime. Because Pierce’s testimony only came
to light during the 440 hearing, the County Court was permitted to assess the
credibility of his testimony in so far as it was offered as independent newly
discovered evidence supporting a new trial. There is no reason to believe, however,
that the County Court could rely on that separate credibility assessment – one it
would not have been in a position to make at trial – to exclude the newly discovered
confessions in the 440 context. See supra n.3.

6
centers on the meaning and requisite level of corroboration.

Corroborating evidence is defined as “[e]vidence that differs from but

strengthens or confirms what other evidence shows (esp. that which

needs support).” Bearden v. State, 161 So.3d 1257, 66 (Fla. 2015) (quoting

Black’s Law Dictionary 674 (10th ed. 2014)). In Chambers, “the United

States Supreme Court described the corroboration factor as requiring

‘some other evidence in the case.’” Id. (quoting Chambers, 410 U.S. at

300). In light of that low bar, the Supreme Court of Florida recently held

that a defendant’s out-of-court pretrial statement to police officers alone

constituted sufficient evidence to corroborate a third-party’s hearsay

confession. Id. After all, the proponent must only proffer “some other

evidence” beyond the statement itself. Id. (“Because the proper standard

is ‘some other evidence,’ we are hard-pressed to see why [defendant’s]

statement, which was actually introduced during the State’s case-in-

chief, does not satisfy this burden.”).

Other courts have similarly held that a hearsay confession may be

sufficiently corroborated by additional hearsay statements alone. For

example, in State v. Cazares-Mendez, the Court of Appeals of Oregon held

that a third-party’s repetition of her murder confession to “four people,

7
unrelated to each other” on “four separate occasions itself gives

corroborative weight to the [in-court] witnesses’ accounts.” 227 P.3d 172,

181 (Or. Ct. App. 2010), aff’d, 350 Or. 491 (2011). As here, reliability was

further demonstrated by the lack of any evidence connecting the third-

party and the defendant that would create a motive for the third-party to

falsely claim responsibility. Id. at 182. Finally, as here, details from the

various “hearsay witnesses’ accounts also cross-corroborated one

another.” Id. at 183. Importantly, the Oregon Courts admitted the

hearsay confessions even though there was no independent non-hearsay

evidence connecting the third-party to the crime. Cazares-Mendez, 350

Or. at 515 n.7. Both the Supreme Courts of Indiana and Idaho have

reached similar conclusions. See Thomas v. State, 580 N.E.2d 224 (Ind.

1991) (vacating conviction where trial court excluded jailhouse confession

to as many as twenty people from third-party who was originally

identified by a clerk, though not positively, before the defendant was

positively identified); State v. Meister, 220 P.3d 1055 (Idaho 2009)

(“Several confessions may act to corroborate each other.”).

That courts in other jurisdictions have relied on the number and

overlapping nature of hearsay statements alone to establish sufficient

8
corroboration is hardly surprising. In Chambers, the Supreme Court

made plain that “[t]he sheer number of independent confessions provided

additional corroboration for each.” Chambers, 410 U.S. at 300. While

acknowledging this holding, the majority was under the

misapprehension that Chambers required a defendant to first proffer

independent evidence connecting the third-party declarant to the crime

before a court could consider the cross-corroborating nature of the

multiple hearsay statements. See Peebles Affirmation, Exhibit A, at 8.

“Certainly, such independent [non-hearsay] evidence could constitute

corroborating circumstances indicating the trustworthiness of the

hearsay statement.” Cazares-Mendez, 350 Or. at 515 n.7. But nothing

in Chambers requires such independent evidence as a prerequisite. This

Court’s utter refusal to even consider whether each confession provided

sufficient corroboration when viewed collectively violated Thibodeau’s

due process rights.5 See Kubsch v. Neal, 838 F.3d 845, 858 (7th Cir. 2016)

5The majority suggests that the reliability of the confessions was undermined by
the absence of “credible evidence” demonstrating that any of the declarants owned a
van, as well as Thibodeau’s purported failure to establish that James Steen and
Roger Breckenridge knew Bohrer at the time of the offense. See Peebles
Affirmation, Exhibit A, at 7. Contrary to the majority’s suggestion, Thibodeau did
offer evidence that Bohrer owned a van at the time of the abduction. Indeed, in a
sworn statement, Tonya Priest informed law enforcement officers that Bohrer
owned a white van. (A. 437). To the extent that the majority was aware of that

9
(en banc) (explaining arbitrary application of hearsay rule may be shown

when a court refuses to consider corroborating circumstances).

Contrary to the majority’s suggestion, nothing in this Court’s penal

interest exception jurisprudence requires independent non-hearsay

evidence establishing the third-party’s connection to the crime. Indeed,

this Court made clear in Settles that all a proponent has to show is

“supporting circumstances independent of the statement itself . . . to

evidence, but suggested it was not credible, that, too is incorrect. No court found
Tonya Priest incredible, nor could one. She did not testify, because the prosecution,
which could have called her to the stand, agreed to admit her sworn statement at
the hearing, thereby obviating any need for Thibodeau to call her. Moreover,
Thibodeau proffered evidence establishing that all three declarants knew each other
at the time of the abduction. For example, Thibodeau introduced evidence through
a local man, Earl Russell, who testified that all three declarants were connected to
another man, Tom Martin, and that he witnessed all three declarants together at
Martin’s social gatherings prior to the abduction. (A. 984-86). Thibodeau also
proffered an affidavit from Michael Bohrer’s brother, John, who confirmed that he
and his brother knew Steen before the abduction. (A. 307). For some unknown
reason, the Country Court denied Thibodeau’s request to call John Bohrer at the
hearing. Moreover, all three declarants were connected through drugs and a local
scrapyard. In any case, there is no reason to think that Allen’s abduction had to be
accomplished through use of a van that was owned by any one of the declarants.
Given their connection to a local scrapyard, they could have just as easily stolen a
van or used one destined for the scrapyard to accomplish the abduction. (Indeed,
Breckenridge admitted he stole a van – a fact that, contrary to the majority’s
suggestion, was, either alone or in combination with Richard Murtaugh’s testimony,
in no way offered to provide a “speculative link” between the declarations and
Allen’s kidnapping). Nor is there any reason to believe that all three men had to
have knowledge of each other prior to the abduction. Because Steen admitted that
Allen was abducted as a result of her work as a confidential informant, it is just as
likely that the three men were recruited by someone else to commit the crime.
Indeed, Jennifer Wescott suggested as much in her recorded call. (A. 108).

10
attest to its trustworthiness and reliability.” People v. Settles, 46 N.Y.2d

154, 167 (1978). Later, the Settles Court echoed Chambers, “requiring

some proof supportive of the declaration . . . .” Id. at 169 (emphasis

added). There is nothing about these formulations that preclude multiple

hearsay statements, considered together or with other circumstances

surrounding the statements, from providing sufficient cross-

corroboration to establish their reliability, even in the absence of non-

hearsay evidence directly connecting the declarants to the crime.6

The pre-Settles origins of the penal interest exception in this Court

also require no independent evidence connecting the declarant to the

crime. When first adopting the penal interest exception, the Settles Court

cited approvingly to Judge Cooke’s concurring opinion in People v.

Harding, in which the following elements for admission of declarations

6Settles involved a single “document prepared by the police department which

synopsized a statement by [a codefendant].” Settles, 46 N.Y.2d at 618. So, the
Settles Court had no occasion to determine whether the reliability of a hearsay
statement could be sufficiently demonstrated by reference to additional hearsay
statements when no non-hearsay evidence connects the declarants to the crime
scene or to the victim’s presence near the crime. No subsequent case in this Court
has addressed the issue. Accordingly, the majority’s claim that relying on the cross-
corroborative nature of multiple confession would “completely” undermine the
Court’s “evidentiary rule of independent corroboration” finds no support in this
Court’s jurisprudence. Indeed, the majority does not even cite to any case on this
point.

11
against interest were proposed: “‘(1) the declarant is unavailable; (2) the

declaration when made was against the pecuniary, proprietary or penal

interest of the declarant; (3) the declarant had competent knowledge of

the facts; and (4) there was no probable motive to misrepresent the

facts.’” Id. at 167 (citing 37 N.Y.2d 130, 35 (1975) (Cooke, J., concurring)

(in turn quoting Richardson, Evidence (10th ed.), s 257, pp. 224-225;

Fisch, New York Evidence, s 892). As explained by Judge Cooke, “[i]t was

the declarant’s awareness at the time of making the statement that her

declaration was against her penal interest that furnishes the

circumstantial probability of its trustworthiness.” Id. (citing Richardson,

Evidence (10th ed.), s 263). Independent evidence connecting the

defendant to the crime in Harding was merely deemed “[f]urther

support” of its trustworthiness. Id.

The majority’s exclusion of the newly discovered confessions

arbitrarily privileges the prosecution, which is always permitted to

introduce extrajudicial statements attributed to the defendant, even

where no independent non-hearsay evidence links the defendant to the

crime. Indeed, the prosecution did just that here by offering the

testimony of two jailhouse witnesses who claimed to have overheard

12
Thibodeau make incriminating statements. Apart from those

extrajudicial statements, nobody placed Thibodeau at the convenience

store7 and no physical or forensic evidence connected Allen to the van in

which the prosecution alleged the Thibodeaus committed the crime

(Richard’s van) or the place where the prosecution alleged the brothers

took Allen (Thibodeau’s home).8 Yet, the prosecution was permitted to

offer the testimony of two jailhouse witnesses, whose credibility was

inherently suspect and whose accounts contradicted known facts. And

7 In summarizing the trial evidence, the majority incorrectly claims that a witness
(John Swenszkowski) “saw Richard enter the store and believed another man was
inside the van with the engine running, outside the store.” Peebles Affirmation,
Exhibit A at 2. Swenszkowski believed no such thing. Not only did Swenszkowski
make clear that he did not see anyone else in the van, he confirmed that he never
saw Gary Thibodeau that morning. (TT 1269-70).

8 While some of Thibodeau’s neighbors testified about seeing Richard’s van at Gary’s
house on the morning of the abduction, those neighbors gave their accounts several
months after the fact, and after Thibodeau was arrested. Moreover, other neighbors
testified that Richard’s van was never at Gary’s house that morning. Similarly,
Richard’s neighbors testified about seeing his van at times that made it impossible
for anyone to have seen it at Gary’s house. In any case, no one ever put Allen at the
house or in the van at the time Richard was purportedly visiting his brother. Thus,
the location of Richard’s van presents no more than a “speculative link” between the
jailhouse witnesses and Allen’s kidnapping. Even if the location of Richard’s van
constitutes the majority’s “requisite independent corroboration” of the jailhouse
witnesses’ testimony in this case, the majority’s rule still arbitrarily privileges the
prosecution, which, in contrast to a defendant seeking to admit third-party
confessions, is never required to provide independent evidence connecting a
defendant to a crime before his extrajudicial statements may be admitted.
Moreover, it is patently unfair to assume a jury would find the neighbors credible
but not William Pierce.

13
the prosecution was permitted to do so without ever having to subject the

jailhouse witnesses to similar “prescreening or limitation based upon

concerns about easy fabrication” that govern the admissibility of

extrajudicial statements offered by the defendant. Keith A. Findley &

Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal

Cases, 2006 Wis. L. Rev. 291, 358 (2006).9 This arbitrary application of

the hearsay rule violates Thibodeau’s right to present a defense. See

Kubsch, 838 F.3d at 858 (“Arbitrariness might be shown by a lack of

parity between the prosecution and defense; the state cannot regard

evidence as reliable enough for the prosecution, but not for the defense.”).

Policy reasons further undermine the majority’s mechanical

application of the penal interest exception in this case. According to the

majority, the cross-corroboration of the newly discovered confession could

only be considered after Thibodeau presented evidence connecting the

9“Not surprisingly, jailhouse snitch testimony has been shown to be a leading cause
of wrongful convictions of the innocent.” Keith A. Findley & Michael S. Scott, The
Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291,
358 (2006) (citing Barry Scheck et al., Actual Innocence: Five Days to Execution and
Other Dispatches from the Wrongly Convicted 246 (2000); Northwestern Univ. Sch.
of Law, Center on Wrongful Convictions, The Snitch System: How Snitch Testimony
Sent Randy Steidl and Other Innocent Americans to Death Row 3 (2004-2005),
available at https://www.innocenceproject.org/wp-
content/uploads/2016/02/SnitchSystemBooklet.pdf).

14
declarants to the crime scene or the victim’s presence near the time of

her abduction. However, had Thibodeau been able to present that

prerequisite evidence to this Court’s satisfaction, there would have been

little need for the confessions. Non-hearsay evidence establishing the

“requisite” connection of any one of the declarants would have been

sufficient to warrant a new trial and establish Thibodeau’s innocence.

The newly discovered confessions are necessary to Thibodeau’s defense

precisely because there has been deemed to be no credible non-hearsay

evidence connecting any of the declarants to the convenience store or to

Allen near the time of her abduction. See Darrisaw, 206 A.D.2d at 664

(permitting defendant to admit third-party confession “[i]n view of the

fact that the declaration at issue was the only available means of

establishing a defense, and given that there is some evidence tending to

corroborate the claims made therein, and there has been no strong

showing of a motive . . . to fabricate.”). Accordingly, Thibodeau was only

required to demonstrate that independent circumstances assured the

reliability and trustworthiness of each statement. As the dissent amply

demonstrated, Thibodeau did just that. See Peebles Affirmation, Exhibit

A at 20-26 (Rivera, J., dissenting) (concluding cross-corroborating nature

15
of multiple confessions, along with the following circumstances

surrounding confessions, inter alia, assured their reliability: (1)

declarants were connected; (2) cadaver dogs alerted to a cabin meeting

Steen’s description near a house where some evidence indicated Wescott

lived; (3) declarants had a motive to commit abduction; (4) declarants had

no motive to fabricate their confessions; and (5) overlapping factual

content of the confessions, in which Steen admitted he abducted Allen

with Breckenridge and Bohrer, who, the defense subsequently learned,

had made separate incriminating statements to various individuals

concerning their involvement in the abduction and disposal of Allen).

Conclusion

For the foregoing reasons, this Court should grant Gary

Thibodeau’s Motion for Reargument.

Syracuse, New York Respectfully submitted,

July 11, 2018

____________________________
Lisa A. Peebles
Federal Public Defender
4 Clinton Square, 3rd Floor
Syracuse, New York 13202
T. (315) 701-0080
F. (315) 701-0081
lisa.peebles@fd.org

16
COURT OF APPEALS
STATE OF NEW YORK
---------------------------------------------------------------------x

THE PEOPLE OF THE STATE OF NEW YORK, :

Respondent, :

-against- : APL-2017-00162

GARY THIBODEAU, :

Defendant-Appellant. :

---------------------------------------------------------------------x
STATE OF NEW YORK )
) ss.:
COUNTY OF ONODAGA )

MELISSA A. TUOHEY, being duly sworn, hereby deposes and says:

I am employed for the Office of the Federal Public Defender, 4

Clinton Square, 3rd Floor, Syracuse, New York 13202, am not a party to
this action and am over the age of 18 years.

On July 11, 2018, I served by Federal Express Overnight Mail

Service, and Regular Mail Service (as indicated) upon the following
parties, true and correct copies of the Motion for Reargument, by
depositing true and correct copies thereof with an official Federal Express
Office, fully paid, and the other enclosed in a post-paid wrapper, in an
official depository under the exclusive care and custody of the U.S. Postal
Service within New York State:

17
Gregory Oakes, Esq. Gary Thibodeau
District Attorney DIN: 95B1489
Oswego County Coxsackie Correctional Facility
39 Churchill Road 11260 Route 9W
Coxsackie, NY 12051-0200 P.O. Box 200
Oswego, New York 13126 1 copy of the complete
Two copies of the complete Motion for Reargument
Motion for Reargument

OVERNIGHT MAIL REGULAR MAIL

______________________________
Melissa A. Tuohey

Sworn to before me this

11th day of July, 2018

______________________
Notary Public

18