7614 STATE OF NEW YORK COUNTY OF MONROE SUPREME COURT PEOPLE OF THE STATE OF NEW YORK vs. NOTICE OF MOTION LAURA RIDEOUT, Indicfmem Defendant. SIRS: PLEASE TAKE NOTICE, that upon the annexed affidavit of MICHAEL T. DIPRIMA, ESQ, duly sworn to on the day of September, 2017, and upon all the papers and proceedings heretofore and herein had, the undersigned will move this Court located at the Hall of Justice, City of Rochester, County of Monroe, State of New York, on the day of October, 2017 in the forenoon of said day or as soon thereafter as counsel may be heard, for an Order: A. Pursuant to C.P.L. section 330.300), to set aside the verdict upon the grounds that there exist grounds in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modi?cation of the judgment as a matter of law by an appellate court; and B. For such other and further relief as this Court may deem just and proper. Dated: September 29? 2017 - Rochester, New York MICHAEL T. DIPRIMA, ESQ. DAVID PILATO, ESQ. . Attorneys for Defendant . 40 l-lumboldt Street (9 Rochester, New York 14609 (585) 797-7926 TO: MONROE COUNTY DISTRICT OFFICE Timothy Prosperi, ADA James Egan, ADA STATE OF NEW YORK COUNTY OF MONROE SUPREME COURT THE PEOPLE OF THE STATE OF NEW YORK, -vs- ATTORNEY AFFIDAVIT LAURA RIDEOUT Defendant. Indictment #201 6-1 1 09C COUNTY OF MONROE) STATE OF NEW YORK) 83.: MICHAEL T. DIPRIMA, ESQ, being duly sworn deposes and says: 1. That I represent the above-captioned defendant, LAURA RIDEOUT, together with DAVID PILATO, ESQ, in regard to Indictment charging her with Murder 2??1 Degree, Burglary 2nd Degree and Tampering With Physical Evidence. 2. A jury trial was conducted on this matter, commencing on June 20, 2017 and ending on July 25, 2017 with guilty verdicts on the above-mentioned counts. 3. Sentencing is scheduled for October 13, 2017. 4. That the Defendant, LAURA RIDEOUT, through counsel, brings this motion pursuant to C.P.L. Section 330.300) to set aside the jury verdict upon the grounds that there exist grounds in the trial record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modi?cation of the judgment as a matter of law by an appellate court. 5. Therefore, we ask the court to consider the following grounds. POINT I: DENIAL OF SEVERANCE WAS AN ABUSE OF DISCRETION 6. In pre-trial motions the Defendant, Laura Rideout, sought a separate trial from that of the co- defendants. In particular, she set forth the prejudicial grounds that would result in a joint trial. While unable to know whether any of the co-defendants would testify on their own behalf at trial, it was certainly anticipated that if any of them did testify, they would attempt to lay inordinate culpability of Laura Rideout. And although not knowing whether any co-defendant would so testify, it was clear that counsel for each of the co-defendants would be raising defenses that, in effect, positioned Laura Rideout as the principal or prime mover in this homicide. These very grounds were raised in pre-trial motions, but such relief for severance from the co- defendants was denied. 7. Specifically, in our motion we cited the New York Court of Appeals case People v. Mahboubian, 74 174 (1989), in which the court set forth a test to determine whether severance must be granted: is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant?s guilt. A closer look at the Mahboubian case demonstrates the analogous application to the present case. Both defendants, Mahboubian and Sakhai, were charged with entering into a conspiracy to stage a burglary and larceny of Mahboubian?s valuable Persian antiquities collection for the purpose of fraudulently collecting insurance proceeds. After a joint trial each was convicted of burglary, attempted grand larceny and conspiracy. At trial, both defendants set forth defenses that were not only antagonistic to each other, but also defenses that were mutually exclusive and irreconcilable. Mahboubian denied any participation in the crime, claiming at trial through counsel that any information regarding the collection that the co- defendant Sakhai obtained from him was obtained by Sakhai tricking him into inadvertently revealing such information. Sakhai, who also did not testify at trial, did nevertheless raise a defense through counsel that both he and Mahboubian arranged the theft of Mahboubian?s collection as a publicity stunt, but that he did not otherwise have any intent to defraud the insurance carrier. The court reversed their convictions on the ground that their defenses were not only antagonistic but mutually exclusive and irreconcilable. ?The jury could not have credited both the jury had believed that Mahboubian persuaded him (Sahkai) to arrange the theft as a publicity stunt, they could not have also credited Mahboubian?s disclaimer of any involvement. Had the jury credited Mahboubian?s disclaimer of any involvement, necessarily they had to reject Sakhai?s defense. 8. In a recent case, People v. McGuire, 2017 0p Dept, 2017), the Fourth Department reaffirmed the Mahboubian decision. Two co-defendants were both charged and convicted joint trial. In pre?trial motions defendant McGuire sought a severance on the ground that trial strategies of the co-defendants were irreconcilable. County Court denied this request. At trial, the appellate court found that codefendants? respective attorneys ?took an aggressive adversarial stance against (defendant at trial), in effect becoming a second (and third) prosecutor?, citing People Cardwell, 78 at 998 and People v. Nixon, 77 1443 at 1444 Dept, 2010). The court further held that the ?essence or core of the defenses (were) in conflict, such that the jury, in order to believe the core of one (had to) disbelieve the core of the other?, citing Mahboubian, Cardwel/ and Nixon. The court held that such a conflict created significant the conflict alone would lead the jury to infer defendant?s guilt?, and therefore severance was required.? 9. The Fourth Department has consistently held that denial of severance by the trial court is an abuse of discretion when there exists irreconcilable defenses between the defendants. In Nixon, supra, co-defendants were charged with CPW and at trial, as anticipated by defense counsel in pre-trial motions, the co-defendant?s attorney an aggressive adversarial stance against (defendant at trial), in effect becoming a second prosecutor.? Under these circumstances, the Fourth Department held that severance should have been granted. 10. We submit that the nature of the conflict that is referred to in the above precedent setting cases is precisely the same irreconcilable conflict that occurred in the present case, creating an undue prejudice against Laura Rideout, and ultimately creating the very ?significant danger" that lead the present jury to infer her guilt. As mentioned, the defendant, Laura Rideout, requested severance of trial from the co-defendants in her pre?trial motions based upon what was anticipated to be conflicts in the defenses to be interposed by the co-defendants that would result in undue prejudice against her. In the original omnibus motion dated March 2, 2017, Laura Rideout sought severance from co-defendants Colin Rideout and Alexander Rideout on the basis that statements that they made to law enforcement inculpated Laura Rideout. While most of these statements were later suppressed as involuntary statements, there remained other statements from each that were likewise unduly prejudicial to Laura Rideout. In addition, it was clear from these statements that co-defendant Colin Rideout was placing blame on Laura Rideout in an attempt to exculpate himself. 11. And what became an even stronger argument for severance was the fact that Colin Rideout was not seeking a severance, thereby signaling that he intended to provide proof at trial that inculpated Laura Rideout. In a further pre-trial motion dated May 31, 2017, at the conclusion of suppression hearings but before the court?s ruling, the defendant Laura Rideout again sought severance. This time, the motion was based not only on co-defendants? statements that would not be suppressed, but also concerning forensic evidence that placed Laura Rideout in a position in which irreconcilable defenses were fully anticipated. Significantly, throughout the trial, counsel for Laura Rideout made numerous motions for severance as counsel for each of the other co-defendants sought testimony that inferred Laura Rideout?s guilt, thereby deflecting otherwise inculpatory testimony away from their respective client. 12. The conflicts between Laura Rideout and the co-defendants occurred at various stages of the trial, but particularly when forensic evidence was introduced. During the testimony of the three primary forensic witnesses, the medical examiner, the DNA analyst and the blood pattern analyst, counsel for each of the co-defendants attempted to shield their client by casting damaging testimony against other defendants, and the most frequent target of these attempts was Laura Rideout. For example, during the testimony of the medical examiner, counsel for Colin Rideout attempted to demonstrate that little force was necessary to effectuate strangulation by use of a ligature, thereby inferring that a person of diminutive size, such as Laura Rideout, could have caused the victim's death by strangulation. 13. These motions for severance during the trial, and the obvious ensuing conflict between Laura Rideout and the co-defendants, was necessarily borne out in front of the jury, so there was no mistake that the jury was able to infer that there existed such "irreconcilable conflicts? between Laura Rideout and the co-defendants. This conflict, again, while obvious to the trial jury during the testimonial phase of the trial, came to full fruition during summations when the counsel for co-defendant Colin Rideout verbally and physically pointed to Laura Rideout as the responsible party for this homicide, and further derided her as kind of mother" would have her children clean up her mess. 14. While all four defendants, including Laura Rideout, were the targets of the District Attorney's case, we submit that Laura Rideout was also targeted by the other co-defendants? counsel who took an aggressive adversarial stance against her, effect becoming second (and third) prosecutor?. McGuire, supra. 15. On an appeal of the jury verdict against Laura Rideout, and presuming the Fourth Department follows their very own precedent in McGuire and Nixon as well as the Court of Appeals cases of Mahboubian and Cardwell, the appellate court will have no other option but to reverse this conviction. 16. Therefore,'we seek such relief at this juncture in the proceeding prior to ?nal judgment and before this Honorable Court for a order to set aside the conviction against the defendant Laura Rideout. POINT ll: INSUFFICIENT PROOF OF ACCESSORIAL CONDUCT 17. In relationship to the charge of Murder 2d Degree, all four defendants were so charged in the indictment. However, the indictment does not specify who is alleged to be the principal and who is alleged to have provided accessorial conduct in furtherance of the homicide. This information was sought both through a Bill of particulars and discovery both at the pre-trial stage and throughout the trial. However, the prosecution never provided such information at any time, and we submit that the proof at trial likewise fails to establish the identity of the principal actor who committed the homicide. Therefore, it was never proven at trial whether the defendant, Laura Rideout, was an ?active? defendant or a ?passive" defendant. This bears a significant issue regarding the legal sufficiency of proof against Laura Rideout as it relates to the charge of Murder 2nd Degree. 18. In People v. Wong, 81 600 (1993), the New York Court of Appeals held "mere presence" of a ?passive? defendant at the scene of a crime is insufficient to support a finding of criminal liability. In Wong, the two defendants were charged with the homicide of a child, however, the proof failed to established which defendant had caused the child?s death. The prosecution argued that their case rested on the theory that each defendant was independently liable for the child?s death because one had shaken the child and the other had stood by and failed to intervene. However, the Court of Appeals held that the ?passive? defendant?s ?mere presence? at the time ofthe crime was insufficient to support a finding of criminal liability. Without proof that the ?passive? defendant was aware that the child had been violently shaken, the prosecution case could not prevail, resulting in a reversal of the convictions. 19. As mentioned above, the prosecution in the present case failed to prove who was the ?active? defendant, or principal actor, and who was the ?passive? defendant. In viewing the evidence in a light most favorable to the prosecution, the prosecution, through the testimony of the blood pattern analyst, proved, at best, that the defendant Laura Rideout was present at the scene when the victim was killed, but not that she was the party that inflicted blunt force trauma or who applied the ligature in order to cause death by strangulation. Therefore, at best, Laura Rideout was proven to be a ?passive? defendant, whose ?mere presence? at the scene was established. However, as stated in Wong, supra, without proof that the ?passive? defendant, namely, Laura Rideout, was aware that ?active? defendant intended to cause the victim?s death, the prosecution failed to present sufficient proof of her criminal liability in the homicide charge. 20. In New York there exists a long-standing legal principal in regard to accessorial conduct, namely, that in order to be held liable under an acting in concert theory, the accomplice and principal must share a ?community of purpose?. See, People v. LoBelle, 18 405 (1066). And as stated in Penal Law Section 20.00, when a principal commits a crime, the principal?s accomplice may be held liable where the accomplice with the mental culpability required for the commission of the requests, commands, importunes, or intentionally aids the principal to engage in the commission of the crime. 21. In the present case there was no proof whatsoever that the defendant Laura Rideout intended to cause the death of the victim, and there was no proof that she in any way solicited, requested, commanded, importuned or intentionally aided the principal in causing the victim?s death. 22. In People v. Couser, 12 1040 (4th Dept., 2004), the Fourth Department reversed a homicide conviction on this very same ground, namely, that the trial record lacked legally sufficient evidence to support the conclusion that the defendant was acting in concert with the principal to cause the victim?s death. The appellate court held that there was no evidence that the defendant shared a community of purpose with the coconspirators to kill, citing People v. LaBel/e, supra. The court held that entire record at trial is consistent with a spontaneously formed by the principals, in which the defendant no purposeful part.? 23. And, recently, in People v. Farley, 150 A03d 1627 Dept, 2017), an assault conviction was reversed and the indictment dismissed on the ground that, having charged the defendant as an accessory, the prosecution was required to prove beyond a reasonable doubt that the defendant acted with the mental culpability to commit the crime charged and that in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime, and that the People failed to meet that burden of proof. In Farley, the facts established that the defendant and his son were in a fist fight with the victim, when the co-defendant son pulled out a knife and stabbed the victim. The court held that there was insufficient proof to establish that the defendant acted with the requisite mental culpability to commit Assault 1St degree by causing serious physical injury by use of a dangerous instrument, or that he aided the co-defendant son in the commission of this crime. 24. We submit that the facts in Farley, supra are sufficiently analogous the present case, thereby requiring this court to find that there was insufficient evidence as a matter of law to sustain the conviction for Murder 2"d Degree. WHEREFORE, your deponent requests this Court grant the relief requested herein, namely, for an Order to set aside the verdict upon the ground that there exist grounds in the record which, if raised upon an appeal from a prospective judgment of conviction, would require reversal or modification of the judgment as a matter of law by an appellate court. - f" .. {g (V MICHAEL T. DIPRIMA, ESQ. Sworn to before me this Egg?day of September, 2017. ROBIN LILL THOMPSON NOTARY PUBLIC-STATE OF NEW YORK NO. QUALIFIED IN MONROE COUNTY MY COMMISSFON EXPIRES 01-30-2020 i /i 447 EM NOTARY PUBLIC