To be argued by:
Weeden A. Wetmore, Esq.
Estimated time: 30 minutes

#KA 18-01340
STATE OF NEW YORK

SUPREME COURT
APPELLATE DIVISION – FOURTH DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK,
Plaintiff/Respondent,
v.
THOMAS S. CLAYTON,
Defendant/Appellant.

Indictment No. 2015-0378

RESPONDENT’S BRIEF

WEEDEN A. WETMORE, ESQ.
Chemung County District Attorney
Special District Attorney for Steuben County
Attorney for Plaintiff-Respondent
Susan Rider-Ulacco, Esq.
of counsel
226 Lake Street
P.O. Box 588
Elmira, New York 14902-0588
Dated: February 28, 2019

 TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................................................................................... 1
PRELIMINARY STATEMENT ............................................................................... 2
COUNTERSTATEMENT OF FACTS ..................................................................... 3
POINT I- THE VERDICT WAS SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE AND WAS NOT AGAINST THE WEIGHT OF THE
EVIDENCE ............................................................................................. 48
A. The People adduced sufficient evidence at trial to support the jury’s
verdict finding defendant guilty of Murder in the First and Second
Degree ................................................................................................ 48
1. Introduction .................................................................................... 48
2. Standard of Review ........................................................................ 50
3. Murder in the First Degree ............................................................. 52
a. Defendant’s close relationship with Michael Beard evidenced
defendant’s complicity in the murder ....................................... 53
b. Defendant had motive to have Kelley Clayton killed ............... 56
c. Defendant provided the means and opportunity for Beard to kill
Kelley Clayton .......................................................................... 60
i. Defendant provided Beard with the means of
transportation to commit the murder ............................... 60
ii. Defendant facilitated Beard’s access and provided critical
logistical and other information necessary for Beard to
commit the murder.......................................................... 64
iii. Defendant directed Beard’s actions and coordinated his
movements..................................................................... 66
d. Defendant’s unusual behavior before and after the murder
implicated his direct involvement ............................................. 72

 e. Defendant provided Beard with rewards of pecuniary value ... 79
4. Murder in the Second Degree ........................................................ 83
B. The verdict was not against the weight of the evidence ...................... 85
1. Defendant’s argument that this was a robbery gone wrong is
without merit and the jury properly dismissed this argument by
weighing the evidence before them ............................................... 87
2. Defendant’s argument that there was no agreement between
defendant and Beard lacks evidentiary support ............................. 97
3. There was overwhelming proof of defendant’s motive to kill his
wife ............................................................................................... 100
C. Conclusion ......................................................................................... 103
POINT II- DEFENDANT RECEIVED A FAIR TRIAL ...................................... 106
A. Defendant’s allegations of Rosario violations are unsubstantiated ... 107
1. Kimberly Bourgeois was not a witness for the prosecution ........ 108
2. There was no Rosario violation for the People’s disclosure of
material regarding Mark Blandford’s polygraph examination .... 109
3. There was no Rosario violation regarding the People’s witness
Richard Flood and the People turned over Rosario material about
Flood immediately upon receipt .................................................. 111
4. There was no Rosario violation for the People’s alleged failure to
turn over Michael Lostracco’s ID-5 report and no prejudice to
defendant resulted ........................................................................ 113
B. Defendant’s allegations of discovery violations are also
unsubstantiated ....................................................................................... 114
1. Under CPL § 240.20, the People had no obligation to provide
discovery of call detail records that were introduced at trial through
Rebecca White.............................................................................. 115
2. The People properly provided all Rosario and discovery materials
concerning expert witness Sy Ray ............................................... 116

 POINT III- THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN
IT DENIED DEFENDANT’S REQUEST FOR A FRYE
HEARING........................................................................................... 125
A. Standard of Review ............................................................................. 126
B. Procedural history and defendant’s arguments on appeal .................. 129
C. The issue is not preserved for appeal to the extent it is based on data
underlying Sy Ray’s mapping tool, because all was admitted without
objection. Any Frye issue in this appeal must be limited solely to Sy
Ray’s mapping tool ............................................................................. 133
D. Even if the issue were preserved for appeal, the cellphone and GPS
data underlying Sy Ray’s analysis has repeatedly been found to be
admissible, as it does not involve novel science. ............................... 134
E. No Frye hearing was warranted for Sy Ray’s mapping tool, which
merely created a visual representation of otherwise accepted and
admissible data, as it did not constitute a scientific method, procedure,
or technique, much less a “novel” one................................................. 137
F. Frye analysis does not involve the merits of an underlying scientific
principle or procedure. The weight of such is the province of the jury,
to which this Court should defer ........................................................ 141
G. Conclusion .......................................................................................... 148
POINT IV- THE TRIAL COURT DID NOT ERR BY FINDING THAT
VLADAN JOVANOVIC’S AFFIDAVIT WAS NOT NEWLY
DISCOVERED EVIDENCE .............................................................. 149
CONCLUSION- DEFENDANT’S JUDGMENT OF CONVICTION SHOULD BE
AFFIRMED ............................................................................... 163

 INDEX TO APPENDIX
THE PEOPLE ARE USING APPELLANT’S APPENDIX

APPELLANT’S/RESPONDENT’S APPENDIX:
VOLUME I OF IX ....................................................................................... A1-A621
VOLUME II OF IX................................................................................ A622-A1296
VOLUME III OF IX ............................................................................ A1297-A1754
VOLUME IV OF IX ............................................................................ A1755-A2337
VOLUME V OF IX ............................................................................. A2338-A2881
VOLUME VI OF IX ............................................................................ A2882-A3525
VOLUME VII OF IX........................................................................... A3526-A4126
VOLUME VIII OF IX ......................................................................... A4127-A4710
VOLUME IX OF IX ............................................................................ A4711-A5100

Please note, the People have used Appellate Counsel’s Appendix in
reference in our Brief. Therefore, we will not be submitting an
Appendix.

 TABLE OF AUTHORITIES
Page
Court of Appeals:
DeLong v. County of Erie, 60 N.Y.2d 296 (1983) ..................................... 131
Lahey v. Kelly, 71 N.Y.2d 135 (1987) ...................................................... 148
Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006),
rearg. denied 8 N.Y.3d 828...................................................... 132, 155
People v. Barnes, 50 N.Y.2d 375 (1980) ...................................................... 86
People v. Bleakley, 69 N.Y.2d 490 (1987) ............................... 51, 88, 89, 103
People v. Cabey, 85 N.Y.2d 417 (1995) ................................................. 86, 87
People v. Cahill, 2 N.Y.3d 14 (2003) ........................................................... 89
People v. Conway, 6 N.Y.3d 869 (2006) .................................................... 107
People v. Danielson, 9 N.Y.3d 342 (2007) ....................................... 88, 93, 95
People v. Davis, 43 N.Y.2d 17 (1977),
cert. denied 435 U.S. 988 ............................................................. 163, 169
People v. Fitzgerald, 156 N.Y. 253 (1898) ................................................... 58
People v. Giles, 24 N.Y.3d 1066 (2014)
cert. denied 136 S. Ct. 32 ......................................................................... 133
People v. Grassi, 92 N.Y.2d 695 (1999),
rearg. denied 94 N.Y.2d 900............................................................... 50
People v. Harris, 209 N.Y. 70 (1913) ................................................... 58, 105
People v. Hines, 97 N.Y.2d 56 (2001),
rearg. denied 97 N.Y.2d 678.............................................................. 51
People v. Jenkins, 98 N.Y.2d 280 (2002) ................................................... 127
People v. Kelley, 19 N.Y.3d 887 (2012) ............................................ 127, 128
People v. LeGrand, 8 N.Y.3d 449 (2007) ........................................... 148, 156

 People v. Martinez, 71 N.Y.2d 937 (1988) ................................................. 121
People v. Mateo, 2 N.Y.3d 383 (2004),
cert. denied 524 U.S. 946 ....................................................................... 89
People v. Middleton, 54 N.Y.2d 42 (1981) ................................................ 132
People v. Miller, 6 N.Y.3d 295 (2006) ......................................................... 85
People v. Moran, 246 N.Y. 100 (1927) ...................................................... 107
People v. Namer, 309 N.Y. 458 (1956) ...................................................... 105
People v. Padro, 75 N.Y.2d 820 (1990),
rearg. denied 75 N.Y.2d 1005........................................................... 134
People v. Perez, 65 N.Y.2d 154 (1985) .............................................. 111, 114
People v. Poole, 48 N.Y.2d 144 (1979) .............................................. 110, 113
People v. Ranghelle, 69 N.Y.2d 56 (1986) ......................... 111, 113, 114, 121
People v. Reed, 22 N.Y.3d 530 (2014),
rearg. denied 23 N.Y.3d 1009............................................................. 52
People v. Rensing 14 N.Y.2d 210 (1964) ................................................... 171
People v. Roach, 215 N.Y. 592 (1915) ....................................................... 148
People v. Rogelio, 79 N.Y.2d 843 (1992) .................................................. 119
People v. Rosario, 9 N.Y.2d 286 (1961),
rearg. denied 14 N.Y.2d 876........................................................ passim
People v. Rossey, 89 N.Y.2d 970 (1997)........................................ 52, 84, 107
People v. Salemi, 309 N.Y. 208 (1955),
cert. denied 350 U.S. 950 ................................................................. 161
People v. Shilitano, 218 N.Y. 161 (1916) ................................................... 172
People v. Steinberg, 79 N.Y.2d 673 (1992) .................................................. 86
People v. Wesley, 83 N.Y.2d 417 (1994) ........................... 132, 144, 156, 157

Appellate Division Cases:

 Carniol v. New York City Taxi, 126 A.D.3d 409 (1st Dept., 2015) ........ 134
Krackmalnik v. Maimonides Med Ctr, 142 A.D.3d 1143 (2nd Dept., 2016)139
People v. Backus, 129 A.D.3d 1621 (4th Dept., 2015),
lv. denied 27 N.Y.3d 991 ......................................................................... 154
People v. Bailey, 144 A.D.3d 1562 (4th Dept., 2016) ................................ 151
People v. Barney, 295 A.D.2d 1001 (4th Dept., 2002),
lv. denied 98 N.Y.2d 166 .......................................................... 108, 110
People v. Boykins, 134 A.D.3d 1542 (4th Dept., 2015),
lv. denied 27 N.Y.3d 1066 ............................................................... 111, 113
People v. Brown, 104 A.D.3d 1203 (4th Dept., 2013),
lv. denied 21 N.Y.3d 1014 ................................................................ 151
People v. Bryan, 270 A.D.2d 875 (4th Dept., 2000),
lv. denied 95 N.Y.2d 904 ......................................................................... 149
People v. Burnell, 89 A.D.3d 1118 (3rd Dept., 2011),
lv. denied 18 N.Y.3d 922 .................................................................. 149
People v. Carr-El, 287 A.D.2d 731 (2nd Dept., 2001),
aff. 29 N.Y.2d 546 ..................................................................................... 85
People v. Carrier, 270 A.D.2d 800 (4th Dept., 2000),
lv. denied. 95 N.Y.2d 864 ........................................................................ 151
People v. Carter, 158 A.D.3d 1105 (4th Dept., 2018) ............................ 58, 88
People v. Chase, 158 A.D.3d 1233 (4th Dept., 2018),
lv. denied 31 N.Y.3d 1080 ........................................................ 108, 109
People v. Clark, 142 A.D.3d 1339 (4th Dept., 2016),
lv. denied 28 N.Y.3d 1143 .................................................................. 51
People v. Cummings, 291 A.D.2d 454 (2nd Dept., 2002),
lv. denied 98 N.Y.2d 636 .................................................................... 89
People v. Garcia, 299 A.D.2d 493 (4th Dept., 2002),

 lv. denied 99 N.Y.2d 614 .................................................................. 140
People v. Gioeli, 288 A.D.2d 488 (2nd Dept., 2001) ................................. 105
People v. Hall, 86 A.D.3d 450 (1st Dept., 2011),
lv. denied 19 N.Y.3d 961 .................................................................. 135
People v. Hazelton, 58 A.D.2d 945 (3rd Dept., 1977) ............................... 149
People v. Hilton, 140 A.D.3d 1176 (2nd Dept., 2016) ............................... 148
People v. Kelly, 288 A.D.2d 695 (3rd Dept., 2001),
lv. denied 97 N.Y.2d 756 ................................................................. 147
People v. Kidd, 76 A.D.2d 665 (1st Dept., 1980)....................................... 105
People v. LaBruna, 66 A.D.2d 300 (4th Dept., 1979) .................................. 84
People v. Littlejohn, 112 A.D.3d 67 (2nd Dept., 2013),
lv. denied 22 N.Y.3d 1140 ................................................................ 134
People v. Mackey, 249 A.D.2d 329 (2nd Dept., 1998),
lv. denied 92 N.Y.2d 927 ................................................................... 116
People v. Marusich, 51 A.D.3d 1201 (3rd Dept., 2008) ............................. 126
People v. Marvin, 162 A.D.3d 1744 (4th Dept., 2018) ................................ 50
People v. McCullough, 275 A.D.2d 1018 (4th Dept., 2000),
lv. denied 95 N.Y.2d 933 .................................................................. 151
People v. Messina, 73 A.D.2d 899 (1st Dept., 1980) ......................... 153, 158
People v. Mixon, 203 A.D.2d 909 (4th Dept., 1994),
lv. denied 84 N.Y.2d 909 (1994); ....................................................... 57
People v. Platt, 278 A.D.2d 28 (1st Dept., 2000),
lv. denied 96 N.Y.2d 737 .................................................................... 85
People v. Reome, 64 A.D.3d 1201 (4th Dept., 2009),
aff’d on other grounds, 15 N.Y.3d 188 (2010) ................................... 87
People v. Rivera, 108 A.D.2d 829 (2nd Dept., 1985)................. 152, 159, 162
People v. Rivera, 167 A.D.3d 550 (1st Dept., 2018) .................................. 126

 People v. Toland, 284 A.D.2d 798 (3rd Dept., 2001),
lv. denied 96 N.Y.2d 942 .................................................................... 57
People v. Wadley, 108 A.D.2d 943 (2nd Dept., 1985) ....................... 152, 159
People v. Walters, 124 A.D.3d 1321 (4th Dept., 2015),
lv. denied 25 N.Y.3d 1209 ................................................................ 108
People v. White, 272 A.D.2d 872 (4th Dept., 2000),
lv. denied 95 N.Y.2d 859 .................................................................. 151
People v. Wilson, 107 A.D.3d 919 (2nd Dept., 2013),
lv. denied 21 N.Y.3d 1047 ................................................................ 140
People v. Wilson, 164 A.D.3d 1012 (3rd Dept., 2018) .............................. 148
People v. Windsor, 165 A.D.3d 709 (2nd Dept., 2018),
lv. denied 165 A.D.3d 709 ................................................................ 161
People v. Wofford, 66 A.D.3d 1404 (4th Dept., 2009),
lv. denied 13 N.Y.3d 943 .................................................................. 140
People v. Wooten, 283 A.D.2d 931 (4th Dept., 2001),
lv. denied 96 N.Y.2d 943 .......................................................... 135, 137
Ratner v. McNeill-PPC, 91 A.D.3d 63 (2nd Dept., 2011).......................... 139
Sackett v. Bartlett, 241 A.D.2d 97 (3rd Dept., 1998),
lv. denied 92 N.Y.2d 806 .................................................................. 116
Federal Cases:
Frye v. United States, 293 F. 1013 (D.C. Cir., 1923) ............................ passim
United States v. Cervantes 2015 US Dist. LEXIS 127048,
2015 WL 5569276 (N.D. Cal Sept. 12, 2015) .......................... 143, 144
United States v. Hill, 818 F.3d 289 (7th Cir., 2016)................................... 141
United States v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015) ............ 134
United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013) ............................ 134

 United States v. Evans 892 F. Supp. 2d 949 [N.D. Ill. 2012]..................... 142
United States v. Frazier, 2016 US Dist LEXIS 126479,
2016 WL 4994956 at 6 (Dist. of Nev. 2016)................................... 145
United States v. Jones, 918 F.Supp.2d 1 (D.D.C. 2013) ............................ 136
United States v. Morgan, 292 F. Supp. 3d 475 (D.D.C., 2018).................. 145
United States v. Machado-Erazo, 950 F. Supp. 2d 49 (D.D.C., 2013) ....... 142
Unites States v. Williams, 583 F.2d 1194 (1978),
cert. denied 439 U.S. 1117 ............................................................... 126
Statute and Law:
CPL § 240.20 .............................................................................................. 115
CPL § 240.45 ...................................................................................... 107, 108
CPL § 240.70 .............................................................................................. 114
CPL § 330.30 ......................................................................................... passim
CPL § 470.15(3)(c) ..................................................................................... 104
Penal Law § 20.00 ......................................................................................... 83
Misc.:
People v. Arroyo, 1998 WL 1806152, at 5
(Schoharie Cty. Ct., Sept. 29, 1998) ................................................... 81
People v. Brown, 9 N.Y.S.3d 830 (Bronx Cty., 2015) ................................. 11
People v. Debraux, 50 Misc.3d 247 (New York Co., 2015)....................... 146
People v. E.H., 2018 Cal.App. Unpub. LEXIS 6005 ................................. 135
People v. Fountain, 2016 IL App. (1st) 131474,
407 Ill. Dec. 185, 62 N.E.3d 1107 ........................................... 136, 138
People v. Williams, 2017 IL App. (1st) 142733,
lv. denied 94 N.E.3d 670 (Ill. 2018) ................................................ 139

 Phillips v. State, 233 Md. App. 184
163 A.3d 230 (Ct. of Spec. App. MD 2016) .................................... 144
Pullin v. State, 272 Ga. 747, 534 S.E.2d 69 (2000) .................................... 136
State v. Hayden, 90 Wash. App. 100 (Wash. App. Ct. 1998) ............ 127, 137
State v. Montanez, 185 Conn. App. 589 (2016) ......................................... 145
State v. Paton, 419 S.W.3d 125 (Mo. Ct. App., 2013) ............................... 139
State v. Phillips, 457 Md. 481, 179 A.3d 965 (2017) ................................. 145
Stevenson v. State, 222 Md. App. 118 (2015),
cert. denied 443 MD 737 .................................................................. 136
Still v. State, 917 So.2d 250 (Fla. Dist. Ct. App. 2005) ............................ 135
The Admissibility of Cell Site Location Information in Washington Courts, 36
Seattle U. L. Rev. 1473, 1501-02 (2013)................................................. 136

 QUESTIONS PRESENTED
1. Was there sufficient proof for a jury to find beyond a reasonable doubt
that defendant, Thomas Clayton, procured the commission of the
killing of Kelley Clayton pursuant to an agreement with Michael Beard
to kill Kelley Clayton for the receipt, or in the expectation of the receipt,
of anything of pecuniary value from defendant, in violation of Penal
Law § 125.27(1)(a)(vi)?
Court Below:

Yes.

2. Was there sufficient proof for a jury to find beyond a reasonable doubt
that defendant acted in concert with Michael Beard with intent to cause
Kelley Clayton’s death and so intentionally caused her death, in
violation of Penal Law § 125.25(1) and pursuant to accomplice liability
under Penal Law § 20.00?
Court Below:

Yes.

3. Were there inadvertent delays in turning over discovery and Rosario
materials that did not cause substantial prejudice to defendant?
Court Below:

Yes.

4. Did the court properly use its discretion to admit, without a hearing,
non-novel scientific evidence based on reliable methodologies accepted
within the relevant scientific or technical community and previously
admitted in New York courts?
Court Below:

Yes.

5. Did the court properly deny defendants motion to set aside the verdict
or to have a hearing, after correctly finding the defense expert’s
affidavit and report, which defense counsel acknowledge he would
have presented at trial were not newly discovered evidence?
Court Below:

Yes.

 PRELIMINARY STATEMENT
This is an appeal from a judgment of conviction for the crimes of
Murder in the First Degree and Murder in the Second Degree following a
jury trial in Steuben County Court. On April 24, 2017, the Honorable Peter
C. Bradstreet, Steuben County Court Judge sentenced defendant to a term of
life imprisonment without parole for Murder in the First Degree, and 25
years to life for Murder in the Second Degree (A 5098-5099).
Defendant filed a Notice of Appeal on April 25, 2017 (A 2-4).

Page 2 of 163

 COUNTERSTATEMENT OF FACTS
During the early morning hours of September 29, 2015, defendant
discovered his wife, Kelley Stage Clayton, bludgeoned to death in their home
(A 1346). The indictment alleges that defendant committed the crime of
Murder in the First Degree by hiring Michael Beard, and Murder in the Second
Degree by acting in concert with Beard (A 6-7).
Prior to the murder, Beard was an employee of the defendant’s at two
prior businesses, Paul Davis and ServPro, both property damage restoration
companies (A 1587, 2724-2725). Between 2012 and 2014, Beard worked for
defendant as a laborer at Paul Davis (A 1586, 1663). Paul Davis first operated
out of Horseheads, but then moved its operations to defendant’s residence on
Ginnan Road in Caton (A 1662, 1759). When the business operated out of
defendant’s residence, in addition to his Paul Davis labor, Beard worked for
defendant on his home and property (A 1393). Defendant allowed Beard to
fish in his pond, and ride four-wheelers on his property (A 1393, 1625-1626,
1764-1765). In late December of 2014, in response to another Paul Davis
laborer alleging that Beard stole money while working, defendant fired Beard
(A 1591–1592).

Page 3 of 163

 In early 2015, defendant began working with Brian Laing at ServPro,
which had offices located at 200 Lattabrook Industrial Park Road in
Horseheads (A 1595). Defendant worked at Servpro as production manager
(A 2727–2728). Defendant contributed equipment and vehicles from his Paul
Davis franchise to ServPro (A 2728). Defendant also brought some of his
Paul Davis labor force to work for ServPro (A 2729, 1595–1598). Upon
defendant’s recommendation, Laing hired Beard as a laborer in May of 2015
(A 2767).
In the summer of 2015, Beard and his girlfriend, Holly Barrett,1 moved
into a two-bedroom apartment located at 1696 Grand Central Avenue in
Elmira Heights, which was jointly owned by defendant and James Sheehan
(A 1386–1387, 1295, 1298). The apartment was located at the corner of
Grand Central Avenue and 8th Street in Elmira Heights (A 1665-1666). Rent
for the two-bedroom apartment was $700 monthly, which Beard paid directly
to defendant (A 1299–1300, 1386–1388). By the end of the summer, Beard

1

By the time of trial Holly Barrett had married Michael Beard and therefore testified as
Holly Beard (A 1385).

Page 4 of 163

 and Barrett had moved downstairs to a larger, four-bedroom apartment, with
an increased rent of $1000 monthly (A 1299–1300, 1387–1388).
On September 17, 2015, after other ServPro employees accused Beard
of stealing, drinking, and “making drug runs while on the clock,” Laing fired
Beard (A 1453–1457, 2103–2105, 2769–2770, 4596–4599).

After the

termination, Laing overheard defendant tell Beard that he would have to move
out of the apartment (A 2214). Tammi Black, ServPro’s office manager,
recalled defendant advising Beard that they would have to discuss the rent as
the latter was “not going to have money to pay it now” (A 4588-4589, 46044605).
Investigator Allison Regan, of the New York State Police Computer
Crimes Unit, performed a data extraction from Beard’s cellphone (A 35613562, 3578-3582, 3636-3637).

The extraction revealed text messages,

including the following exchange between Beard and a person identified as
Adam, following Beard’s termination on September 17, 2015:
(6:46 pm) Adam: hey don’t say nothing but you heard
what happened?
(6:48 pm) Beard: nutin to say, it’s all good
(6:48 pm) Beard: ain’t mad with nobody (A 3603).

Page 5 of 163

 Two days after his termination, Beard met defendant and then texted his
girlfriend at 8:35 p.m. stating “hey, just gave Tom the money, he said if we
don’t have four hundred by Friday, then we gotta move” (A 3751).
On Sunday afternoon, September 20, 2015, Beard and defendant
exchanged the following text messages:
(1:08 pm) Defendant: you home?
(2:01 pm) Beard: almost done yard working, helping a friend
(A 3605).
At 6:19 p.m., defendant placed a call to Beard (A 3605). Then they
exchanged the following texts:
(6:27 pm) Beard: hey, did you come by the house? Our babysitter
Just texted me. I’m trying to get the rent money up.
Should have it all by Wed. If not, we will be moving.
(6:34 pm) Defendant: yes, I stopped. Call me.
(6:35 pm) Beard: Ok, give me 10 minutes. (A 3605-3606).
At 6:54 p.m., Beard called defendant (A 3605).
The morning of September 21st at 8:49 a.m., defendant texted Beard “I
had a water loss, let’s make it 11:30.” Beard texted back “okay” (A 36063607). Less than 30 seconds later, Beard texted Larry Johnson, another
former ServPro laborer, and said, “yo, Tom wants to talk to me” (A 4257,
1662-1663).

Page 6 of 163

 The People produced Sy Ray of ZetX to visually map locations of
defendant’s and Beard’s cellphones, and certain ServPro vehicles equipped
with GPS systems. Ray was able to plot such locations by using analytical
software to upload call detail records from cellphone providers; Google
records providing location information in latitude and longitude coordinates;
and Fleetmatics GPS records (A3202, 3206, 3967-3968, 3976-3986).
Therefore, he testified that at the time of the 8:50 a.m. message, Beard
was at his apartment in Elmira Heights (A 4001-4003).
Defendant also texted his wife that morning asking, “are you still going
to the gym” and then made plans to meet at Wegman’s at 1:00 p.m. (A 36993670).
At 11:20 a.m., Beard’s phone was not at his apartment, but was moving
westerly (A 4005, 4006). By 11:42 a.m. the device was in the Caton area (A
4006). Meanwhile, defendant’s phone was also moving that morning (A
4009, 4079-4080). “[A]t a time roughly between 11:57 and 12:02”, both
Beard’s and defendant’s phones were traveling in an area that was west of
Elmira and extended to Lindley (A 4007-4008, 4080).
During the time the phones were traveling in the same area, defendant
placed two telephone calls: one to Mathew Lunger of Anchor Glass at 11:58

Page 7 of 163

 a.m., and the second to Richard Phillips of McLaughlin Roofing at 12:14 p.m.
(A 3239, 4403-4404). Defendant asked Lunger, if Anchor Glass was hiring,
as “he had a friend that had just been fired from ServPro and he was looking
for a job for him” (A 4404–4405). Defendant advised Phillips that he “had a
guy that worked for him… He wondered if I had any employment for his guy”
(A 2953–2954).
By 12:16 p.m., both phones had returned to Elmira (A 4009-4010). By
12:21 p.m., Beard’s phone was back in the area of his apartment, when a text
message was sent from his phone to defendant, stating “need a bike” (A 4010).
The next day, September 22, at 5:37 p.m., Barrett texted Beard “Tom is
here” (A 3608, 4013). At 6:02 p.m., Barrett texted Beard “he said he be here
at 8:30, 9:00 in the morning.” Beard responded “okay” (A 3609). At 6:23
p.m., a call was placed to defendant from Larry Johnson’s phone (A 36013602, 3836).
On Wednesday, September 23, Beard texted Larry Johnson at 9:04 a.m.
“tell Kevin got morning appointments, I’ll be ready after my interview” (A
3612). At 9:09 a.m., a call was placed from a ServPro alternative phone
number to Beard, who was at home (A 3618, 4016). At 9:12 a.m., defendant
texted James Sheehan, the co-owner of Beard’s apartment, asking, “eviction

Page 8 of 163

 notice, where do we get one of those?” (A 3880). Phone records from Verizon
reveal that defendant then placed a ninety-one second call at 9:15 a.m. to
Lattabrook Mini Storage, a storage facility located adjacent to ServPro (A
1977–1980, 2643, 4016). John Holchuk, the owner of Lattabrook Storage,
testified that he received a call about a week before the murder from someone
identifying himself as ‘Brian’ from ServPro, advising that there had been a
theft at ServPro, and that he wanted to know if any of Holchuk’s security
cameras showed his building (A 1976-1977, 2022-2023). Holchuk did not
know if the caller was Brian Laing (A 2023). Holchuk advised the caller that
one of his security cameras showed a portion of the back of the ServPro
building, but not the doors (A 1373). The camera also would not record
anyone walking in or out of the building (A 2023-2024).
At 9:19 a.m., Beard was still at his apartment (A 4013). Two minutes
later his phone had moved north and was in the area of 11th Street and
Horseheads Boulevard (A 4017).

The device continued its way north

traveling up Lake Road, and eventually arrived in the area of ServPro by 9:35
a.m., (A 4017-4018). A ServPro vehicle then powered on and moved along
Industrial Park Road toward Lattabrook Road (A 4017-4018). The ServPro
vehicle and Beard’s phone were in close proximity at 9:35 a.m. Then they

Page 9 of 163

 separated at 9:37 a.m., with the ServPro vehicle moving north toward Pine
Valley, while Beard’s phone travelled south on Lake Road to the area of
Grand Central Avenue and Cleveland Street in Elmira Heights (A 2897, 40184020). The trip from ServPro to the area past his house took Beard’s phone
approximately eight minutes to travel (A 4018-4020). Beard’s phone then
moved two blocks back north to his house arriving there by 9:47 a.m. (A 23962397, 4020). At 9:50 a.m., Beard sent a text message to defendant stating
“need that eviction notice and a letter of release and a little bit please” (A
3612).
On February 6, 2017, Sergeant Brian Logsdon of the Steuben County
Sheriff’s Office rode a mountain bike from ServPro to defendant’s home,
using two possible routes (A 4330, 4333-4337). The first route took over ten
minutes, and the second took over eleven minutes (A 4333-4337). Traveling
by mountain bike to the area of Grand Central and Cleveland would have
taken longer as that area was south of Beard’s residence (A 2396-2397, 40194020).
After defendant and Beard went their separate ways at 9:37 a.m. on
Wednesday, September 23, defendant eventually returned to ServPro by 11:53
a.m. (A 2746, 4081, 4082). He then left ServPro at 12:39 p.m. and travelled

Page 10 of 163

 to Beard’s neighborhood in Elmira Heights, where he spent four to five
minutes driving around (A 2750-2753).

From Beard’s neighborhood,

defendant travelled home, and then drove to Cleveland, Ohio for job training
(A 4022, 2735, 2807-2808). Although defendant owned a white Dodge Ram
truck in September of 2015, he left it behind that day, as he drove a green
ServPro Scion to Ohio instead (A 2730-2731).
In September of 2015, ServPro had the following vehicles: two Ford box
trucks, two Toyota Scions, a Chevy 2500 pickup truck, two vans, defendant’s
white Dodge Ram, and Brian Laing’s GMC pickup truck (A 2786-2788, 27302732). All of the vehicles with the exception of defendant’s white Dodge Ram
and Laing’s GMC truck were equipped with Fleetmatics GPS tracking
systems (A 2731-2732).
That Wednesday afternoon, Kevin Morris drove Beard from Elmira
Heights to Wellsburg to work as a laborer for his new business (A 1600-1601,
4600).
In Wellsburg, Beard worked with Larry Johnson painting walls at
Morris’ shop until approximately 11:00 p.m. or midnight, at which time
Johnson drove Beard back to Elmira Heights (A 1601-1602). At 12:28 a.m.,
Beard had Johnson pull over and park on either Cleveland or Garfield, which

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 was two or three streets away from Beard’s apartment (A 1671-1672).
Johnson recognized defendant’s white truck parked in this area (A 1671-1672,
4023). Beard and Johnson got into defendant’s truck, with Beard in the
driver’s seat, and Johnson riding as a passenger (A 1672-1673, 1678).
Beard powered off his cellphone at 12:38 a.m. and drove to the area of
defendant’s home in Caton (A 1674). Beard parked the truck on the road, got
out, and then pulled a mountain bike from the back of the truck (A 1674).
Beard rode away on the bike (A 1675-1676). Eventually Beard returned, and
climbed back into the truck (A 1676). Beard and Johnson were still in the
Caton/Lindley area at 1:42 a.m. (A 4023-4024). At 1:52 a.m., Beard was in
the Elmira area when he sent defendant a text “[W]hen you can, call me” (A
4025). At 2:01 a.m., Beard and Johnson were back in the area where Johnson
had parked his van and where he first observed defendant’s white truck (A
1672, 1676, 4029, 4084). Beard finally returned to his residence at 2:05 a.m.
(A 4030).
Later the same morning, the 24th, at 6:56 a.m., defendant called his wife
(A 3793). Defendant then called Beard at 7:25 a.m. and 7:31 a.m. (A 3613,
3793). At 7:33 a.m., defendant called Larry Johnson’s phone (A 3601-3602,
3793). This call and the earlier one made from Johnson’s phone on September

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 22 were the only two calls ever made between defendant’s and Johnson’s
phones (A 4032). At 7:40 a.m., defendant sent Beard a message “[I] spoke
with James about the eviction notice, he should be able to get that for you
today, call me when you have a minute” (A 3613, 3794). In response, Beard
called defendant at 9:28 a.m. (A 3794).
Text messages continued between defendant and Beard throughout the
day on September 24th discussing jobs for Beard (A 3717-3718). Beard
complained bitterly when Morris failed to pay him for his labor (A 3764,
4898). At 8:15:28 p.m., Beard texted defendant “the boxes are being watched
on the same street,” to which defendant immediately responds at 8:15:47 p.m.,
“what?” (A 3616, 3758). After Beard texted at 8:16:48 p.m., “remember
where I put the boxes on the street,” defendant called Beard and spoke with
him for over four minutes, followed up by another call at 9:01 p.m. that lasted
over two minutes (A 3616, 3759).
At 8:12 p.m. that evening Beard was at home (A 4035). However, by
8:15 p.m., when Beard sent defendant the first text about “where I put the
boxes on the street,” Beard had moved to the same area where he had returned
defendant’s truck the night before with Larry Johnson (A 1672, 1676, 40334035).

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 At 9:24 p.m. a text message from defendant asked Beard “did you go to
the roofers today?” to which Beard responded, “had no way, gonna ride bike
tomorrow” (A 3619).
At trial, Holly Beard stated that when she and Beard resided at 1696
Grand Central Avenue, defendant stopped and placed a mountain bike in the
garage for Beard (A 1398).
On Friday morning, September 25, 2015 at 8:04 a.m., defendant sent
Beard a text, “James has the eviction notice, is dropping in your mailbox this
a.m. what else do you need for DSS?” (A 3619). At 8:35 a.m., Beard texted
back “a letter of release from the job” (A 3619, 3708). Defendant responded
“okay, call Tammie in office and ask for one” (A 3619). On Friday afternoon,
defendant drove from Cleveland, Ohio to the Seneca Allegany Casino in
Salamanca, New York where he spent the night (A 2924, 2926, 4036).
Saturday, September 26 started with a text from Kelley to defendant at
8:18 a.m., asking “did you tell someone they could use the four-wheeler” (A
3808). Defendant answered that he gave Tetreault permission (A 3808). At
8:20 a.m., Kelley asked defendant “you in class?” to which defendant
answered “yes” (A 3809).

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 At 10:18 a.m., defendant placed a call to Beard which lasted seventy-five
(75) seconds (A 3237, 3810).

Seventeen minutes later, at 10:35 a.m.,

defendant texted Tetreault to advise “you don’t have to get the four-wheeler
back to my house, I will get it from you Monday at work” (A 3810).
Defendant then deleted that text message from his phone (A 3810).
At 10:37 a.m., defendant called Michelle Augustine of Finn Academy
and asked if she had found a custodian for her school (A 2701-2702, 3810).
Defendant recommended Michael Beard for the job (A 2703). Augustine said
the position was filled and she was not interested in hiring Beard (A 2703).
Defendant responded that Beard “was not a bad guy,” but just someone who
would spend his paycheck in a day or two (A 2703). He also said that Beard
rented an apartment from him (A 2703).

When asked why he was

recommending Beard, defendant explained that Beard had worked for him,
but was fired because he didn’t have a driver’s license (A 2703).
At 10:51 a.m., defendant called Mike Strobel, an employee at First Arena
in Elmira, who announced games and sold advertising for the Elmira Jackals
Hockey team (A 2708). Defendant asked if there were security cameras at the
Lindenwald Haus (where the Elmira Jackals housed their players) (A 27132715). Defendant claimed there was an incident with one of his vehicles (A

Page 15 of 163

 2714, 2719). When Strobel answered that to his knowledge there were no
security cameras, and then asked if defendant wanted him to find out for sure,
defendant said “no, that’s okay” (A 2714).
At 11:46 a.m., when defendant placed another call to Beard, the GPS
data on his vehicle revealed that he was in the Painted Post area (A 3811,
4037). Meanwhile Beard’s phone was still in the area of his apartment (A
4037).
By noon, defendant was entering Horseheads, while Beard was still at
his apartment (A 4037-4028). At 12:09 p.m., Beard called defendant, and was
then in the area of ServPro (A 4038-4039). By 12:13 p.m., both defendant
and Beard were in the area of ServPro (A 4039-4040). Beard left ServPro at
12:20 p.m., and travelled south on Lake Road, eventually arriving in the same
general area where Larry Johnson had observed defendant’s white truck
parked on September 24 (A 1673). Beard’s trip from ServPro that Saturday
afternoon took only seven minutes (A 4041). Beard’s phone then moved to
his apartment, two blocks away (A 4041).
On Sunday, September 27, defendant called Luke Tetreault and
reiterated what he had texted Saturday about not needing the four-wheeler
back (A 1773). Defendant also said that they would not unload the four-

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 wheeler at ServPro, but instead suggested they swap trucks so that defendant
could drive home, unload the four-wheeler there, and then swap the trucks
back at ServPro on Tuesday (A 1773).
On Monday, September 28, a Lattabrook Storage security camera
captured Tetreault’s red truck arriving at ServPro at 8:07 a.m. (A 1774-1775,
1999). The same camera filmed defendant’s white truck arriving at 8:10 a.m.
(A 1999-2000). Defendant and Tetreault switched keys (A 1776). Tetreault
did not give defendant permission to loan his truck to Beard (A 1792).
At 9:42 a.m., that morning, Greg Miller texted, “poker is on for tonight,
do I have any players” (A 1844, 3811-3812).

Defendant responded

immediately, “yes, I’m in” (A 3812).
The Fleetmatics GPS system in the ServPro vehicle defendant drove on
September 28 showed him in the vicinity of his Ginnan residence at noon (A
4088). Eight minutes later, at 12:08 p.m. his ServPro vehicle was at 391½
Park Avenue in South Corning (A 4088-4089).
Roland Duell, a mechanic at M&M Auto, located at 391 Park Avenue,
testified that defendant entered the service bay and asked if he could use one
of their phones as his cellphone was not working properly (A 1913, 19151916). Duell directed defendant to a shop phone with the phone number 607-

Page 17 of 163

 962-5634 (A 1916-1917). After placing his call, defendant left M&M Auto
(A 1917).
Rebecca White, of the Finger Lakes Technology Group, provided call
detail records for the phone number 607-962-5634 (A 1931-1932). The
records revealed that the 12:09 p.m. phone call placed by defendant from
M&M Auto was to Michael Beard (A 1941). At the time of the call, Beard’s
phone was in Elmira Heights in the vicinity of the Lindenwald Haus (A 4089).
Tetreault left work midday, driving defendant’s white truck, while his
own truck remained parked at ServPro with the four-wheeler (A 1776-1777).
Lattabrook security cameras recorded the white truck leaving shortly after
noon, and the red truck with the four-wheeler, leaving at 3:09 p.m. (A 17761777, 2000-2003).
At 4:46 p.m. Holly Beard texted Michael Beard “we ain’t got no money,
bills due, no food in this house and you are bullshitting on the real, me and
kids will be better off alone, just me and them” (A 3620). From 5:15 p.m.
through 5:54 p.m. Beard’s phone moved around his neighborhood (A 40424045).
At 5:55 p.m., Beard placed a seventy-seven second telephone call to
defendant (A 4045). At about this time, both devices were in the area of Lake

Page 18 of 163

 Road and 14th Street (A 4045). A security camera at R.S. Parker Landscaping
at 415 E. 14th Street then recorded a red Dodge four-door pickup truck at 6:01
p.m., traveling west to east on E. 14th Street (A 2306-2314, 2364-2370).
After the red Dodge truck drove past Parker Landscaping at 6:01 p.m.,
a Lattabrook Storage camera recorded Tetreault’s red Dodge truck pulling
into ServPro at 6:04:54 p.m. (A 2002-2003).
Investigator Christopher Wilkinson of the New York State Police
recorded the amount of time it took to travel from Parker Landscaping to
ServPro on Lattabrook Industrial Park Road, while operating at the posted
speed limits (A 2379-2383). Investigator Wilkinson drove the route five
times, and found that the average time was three minutes and forty-three
seconds, with the fastest time being three minutes and fifteen seconds, and the
slowest time over four minutes (A 2382-2383).
After the red Dodge truck arrived at ServPro at 6:04 p.m., Beard’s
cellphone manually powered off at 6:08 p.m., powered back on at 6:09 p.m.,
and then manually powered off again at 6:10 p.m. (A 3623-3624). Lattabrook
security cameras recorded Tetreault’s truck then leaving ServPro and going
past the end of Lattabrook’s driveway at 6:10:28 p.m. (A 2005-2007). The
cameras then recorded a green ServPro truck leaving ServPro and going past

Page 19 of 163

 the same driveway only twenty-four seconds later at 6:10:52 p.m. (A 2007).
According to Brian Laing, ServPro’s key fob system for its vehicles identified
defendant as the driver of the green ServPro pickup truck that evening (A
2720, 2727, 2733, 2757-2760).
The red Dodge truck was then recorded at 6:14 p.m. traveling east to west
on E. 14th Street past Parker Landscaping (A 2370).
Meanwhile, Clayton drove the green ServPro pickup truck to Head Over
Heels Gymnastics located at 914/916 Lackawanna Avenue, arriving there at
6:17 p.m. (A 2761, 2919).

Kara Sheehan arrived at Head Over Heels

Gymnastics before 7:00 p.m. to pick up her daughter and saw the defendant
there (A 1951-1952). When the Sheehans and Claytons left the gym, Sheehan
saw defendant walk to a green ServPro truck (A 1952-1953). Defendant left
Head Over Heels Gymnastics at 7:02 p.m., and arrived home at approximately
7:25 p.m. (A 2763). At 7:37 p.m., defendant left home and drove to Corning,
to play poker at Greg Miller’s home, arriving at 7:51 p.m. (A 1190-1192,
2763).
There were five other poker players in addition to defendant and Greg
Miller. (A 1845- 1846). One player, Nick Hojnoski, who sat to defendant’s
immediate right, testified that he and defendant used their cellphones during

Page 20 of 163

 the game (A 3105). Data extractions from defendant’s phone revealed activity
throughout the poker game, including texting (A 3812-3815). There was
conversation between defendant and David Pierri, another player, about tree
stands (A 3106-3107, 3121, 3137). Pierri asked defendant if he could help
move tree stands the next day (A 3107, 2121-3122, 3137-3138). Defendant
said he would help, but never said he would bring Beard, or anyone else (A
3122).
As of 9:47 p.m., defendant was still using his phone (A 3815). Miller
testified that cellular service in his home, including in the basement, was very
good, and that he kept cellphone chargers at his house for the players (A 18491850, 1855).
According to Linda Miller, during the game defendant came upstairs and
asked if he could borrow her phone as he needed to call a worker because he
said he had left his own phone out in his car (A 1894-1895). She loaned
defendant her phone, and he left the kitchen to place his call (A 1894). Miller
did not hear what was said during the call (A 1895).
The next morning, when Linda Miller attempted to retrieve the call detail
from her phone, she found no record of defendant’s call (A 1896-1897).
However, AT&T phone logs revealed that her phone was used at 10:53 p.m.

Page 21 of 163

 to place two phone calls that she did not make (A 1900). One call was placed
to 607-398-3890, a number which was stipulated by the parties as a telefax
number for Arnot Ogden Medical Center (A 1900, 3303). The second call
lasted twenty-five seconds and was placed to 607-398-8390, Michael Beard’s
phone number (A 1900, 3304). Miller did not recognize either number, nor
did she place the calls (A 1900).
During the game, Nick Hojnoski stated he had no desire to play past
midnight due to his work schedule the next morning (A 1848-1849). Greg
Miller remembered defendant “wanting to play longer and wanting Nick to
stay, and, for some unknown reason, Tom said that he would play until 5:00
in the morning if people wanted to, that he was free” (A 1848-1849). While
defendant was playing poker, his wife was at home (A 3377-3378). She sent
her last text message at 10:21 p.m. to her friend, Abbe Tipton (A 2980, 31403143).
Meanwhile, at 8:34 p.m., Beard turned his phone back on (A 3624).
Following defendant’s call at 10:53 p.m. to Michael Beard, the latter
moved north from his apartment (A 4050). By 11:00 p.m., Beard was at the
intersection of Grand Central Avenue and 14th Street in the area of the Dandy

Page 22 of 163

 Mini Mart (A 4050). Beard remained in the area of the Dandy until 11:07
p.m. and then returned to his apartment by 11:09 p.m. (A 4051).
Jennifer Butler, an employee of the Dandy Mini Mart, recalled that Beard
was in the area at such time (A 1458-1463). She was very familiar with him
as he was a regular customer (A 1461). Butler recalled that when Beard left,
he rode away on a mountain bike “headed south as if he was going home” (A
1462-1463).
At 11:24 p.m., Beard manually turned off his phone (A 3625). By 11:24
p.m., Beard’s phone had moved south from his apartment to Elmira (A 4052).
He manually turned it back on at 11:44:13 p.m., and then manually turned it
off again at 11:44:53 p.m. (A 3625).
Mark Blandford had known Michael Beard for three and a half years, but
only knew him by the nickname, “Kato” (A 1488-1489). In September of
2015, Blandford lived in a boarding house at 1411 Grand Central Avenue (A
1493). On Monday, September 28, Blandford began drinking in the morning
and consumed “probably ten to twelve 24-ouncers” of beer that day (A 1565).
Beard arrived at Blandford’s residence that evening, after which Blandford
climbed into a pickup truck with Beard, and they drove to a nearby Weston
Quick Store on Lake Road in Elmira, where Blandford bought three more 24-

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 ounce beers (A 1498, 1499-1500). According to Blandford, they then drove
down Clemens Center to Church Street, and then “out to 352 heading towards
like Corning” (A 1501). Blandford consumed another 24-ounce beer (A
1501).
At some point, Beard parked on the side of a road with no streetlights
(A 1502). He exited the vehicle, took something out of the back of the truck
and left, while Blandford remained in the truck as a lookout (A 1502-1505,
1563-1564). After approximately fifteen minutes, Beard returned to the truck
out of breath, sweating and holding what appeared to be a stick (A 1505).
Beard started the truck and began driving back toward Elmira while holding
the object outside the truck window (A 1505-1507).
On the way back to Elmira, they made two stops (A 1507). At the first
stop, Beard got out on the driver’s side, walked in front of the truck and tossed
the sticklike object that he had been holding (A 1507, 1549). Beard drove a
little farther and slowed down, whereupon Blandford threw from the truck a
bag containing beer cans, a black t-shirt and gloves, all items Beard had placed
therein (A 1508-1509). After returning to Elmira, Beard dropped Blandford
off on the corner of Clemens Center Parkway and Thurston Street, a block
from Blandford’s home (A 1509-1510). Before getting out of the truck,

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 Blandford wiped down the inside of the truck where he had been sitting as
well as the outside of the truck (A 1509-1510).
A Lattabrook Storage security camera recorded a truck returning to
ServPro at 12:55 a.m. on September 29, after which the reflectors on a bicycle
wheel were observed at 12:59 a.m. coming from the ServPro area and going
past Lattabrook Storage (A 2008-2012). Beard’s phone powered back on at
1:12 a.m. while in the vicinity of 11th Street and Horseheads Boulevard, not
far from Parker Landscaping (A 4052-4053). By 1:14 a.m., Beard’s phone
was “at or near his residence” (A 4052-4054).
Investigator Christopher Wilkinson recorded the time it took to travel
from ServPro on Lattabrook Industrial Park Road to defendant’s residence at
2181 Ginnan Road in Caton (A 2392-2393). Wilkinson described a route
from defendant’s residence to ServPro took him on Route 225 to Elmira,
eventually proceeding down Clemens Center Parkway to Grand Central
Avenue, where he turned north and went past the Lindenwald Haus, and then
past Beard’s apartment (A 2393-2395). Wilkinson took a right on E. 14th
Street and travelled the same route as he had taken when recording the time
from Parker Landscaping to ServPro.

It took thirty-two minutes for

Wilkinson to travel from 2181 Ginnan Road to ServPro (A 2395-2396).

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 Wilkinson also recorded the time to travel from the intersection of E.
8th Street and McCauley Avenue, an area two blocks from Beard’s apartment,
to defendant’s residence on Ginnan Road (A 2396). However, this trip
included a stop at the Weston Quick Store on Lake Road, where Blandford
said he and Beard had stopped to buy three 24-ounce cans of beer the night of
the murder (A 1499-1500, 2396-2397). This trip took Wilkinson thirty-one
minutes (A 2398).
Investigator Wilkinson travelled the distance a third time, starting from
defendant’s residence on Ginnan Road (A 2398-2399). He took a slightly
different route but found the distance between ServPro and 2181 Ginnan Road
to be the same as the first route he took, which was 17.5 miles (A 2399). The
time to make the trip was also thirty-two minutes (A 2399).
According to the Fleetmatics GPS system, defendant’s ServPro vehicle,
and therefore defendant, remained in the vicinity of Greg Miller’s home on
September 29, 2015, until 12:22 a.m. when the ignition started (A 2763-2764,
4049). Defendant then drove home where he arrived at 12:35 a.m. (A 2764,
2818-2819).
At 12:38 a.m., defendant called 911 and initially exclaimed “Help me,
help me, my wife, she’s dead . . . .” After providing his address and some

Page 26 of 163

 information to the 911 operator, defendant failed to hang up the phone, and
then after more than twenty seconds of silence, is heard asking Charlie his
daughter, “Did you see Mommy? Did you? Did you see a robber? A robber?”
(A 3926-3928).2 Defendant then drove to the Almy residence at 2150 Ginnan
Road arriving at 12:42 a.m. (A 1297, 2765).
Derek Almy was awakened and met defendant at the front door (A
1300-1301). Defendant entered the Almy residence and exclaimed, “We’ve
been robbed. We were robbed” (A 1302). Defendant asked Almy’s wife to
watch his children, and said that Derek Almy needed to go with him (A 1301).
Defendant and Almy then climbed into the ServPro truck and sped up the road
to the Clayton residence (A 1301-1302, 1304).
Before entering the house, defendant stopped Almy and said, “I have to
warn you, it’s gruesome” (A 1305). Upon entering the kitchen, Almy saw
Kelley Clayton lying on the floor and knew she was dead (A 1309-1310).
Almy testified that the “seriousness of the situation” became apparent
to him and he started to look around the house wondering if anyone else was
there (A 1310). Almy said that defendant knew he was a gun owner with

2

The People refer this Court’s attention to Peoples Exhibit 377, the 911 recording.

Page 27 of 163

 multiple firearms in his home, but never asked him to bring a gun back to the
house (A 1318). Almy noticed that at the landing of the staircase there was
blood on the wall above a hole in the sheetrock (A 1311-1313). Almy felt
uncomfortable, and the realization that he “was in some place [he] shouldn’t
be” came over him (A 1310). When the police arrived shortly thereafter,
Almy exited the home (A 1313-1314).
While Almy was in the house, and prior to the police arriving,
defendant called Kelley Clayton’s sister, Kim Bourgeois, to tell her Kelley
was dead (A 1342). Subsequently Kim, her husband Corey Bourgeois, her
daughter Molly Bourgeois, and Kim and Kelley’s mother, Elizabeth Stage,
travelled immediately to the Clayton residence (A 1361). Corey Bourgeois
testified that after they arrived the defendant neither looked up nor did he
respond to the family, even amid the hysterical reaction to Kelley’s death by
her mother and sister (A 1362-1363). Molly Bourgeois also testified that
defendant never responded to them (A 3449-3450). When asked by police
about possible suspects, Molly gave the names of Michael Beard and Tommy
Epperson, two Servpro employees fired on September 17 (A 3451-3452).
Steuben County Investigator Donald Lewis asked defendant to
accompany him in his police car to travel to the State Police Barracks in

Page 28 of 163

 Painted Post (A 3343). Once in the car, defendant blurted out “[w]ell, you’ll
know where I am because my vehicle has GPS in it” (A 3343). After they
arrived at the barracks, police took defendant to an interview room as they
wanted to question him as a witness (A 3344). Investigator Lewis and New
York State Police Investigator Brian Kozemko conducted the interview (A
3345). At 3:34 a.m., Kozemko advised defendant of his Miranda rights
because at that time they “didn’t have any idea really what had occurred or
who was a suspect, who wasn’t a suspect” (A 3346). Police first asked
defendant to recount a timeline of the day leading up to his discovery of Kelley
(A 3346). In response, defendant said the following:
 He worked at ServPro then went home for lunch to drop off a fourwheeler that Luke Tetreault had borrowed from him the previous
weekend (A 3347, 3377-3379).
 He drove the four-wheeler around a pond on his property and then
back to his house and went back to work (A 3347).
 That evening, he took his daughter, Charlie, to gymnastics at Head
Over Heels Gymnastics in Horseheads (A 3347).
 While at Head Over Heels, he played on his iPad.
 At some point, he left Head Over Heels for about fifteen minutes to
look at a fire in Elmira.
 He returned to the gym to pick up his daughter and take her back
home.
 At approximately 7:30 or 8:00 p.m. he went to Greg Miller’s house in
Corning to play poker.
 At approximately 12:22 a.m. he drove home, arriving at 12:35 a.m.,
when he found all the lights on in his house.

Page 29 of 163

  Upon entering the house, and finding his wife deceased in the entrance
near the laundry room, he called 911, and then took his children down
the road to Almy’s house where he left them, he then returned to his
home with Derek Almy (A 3347-3348, 3371-3372).
When defendant gave his statement to Investigators Lewis and
Kozemko, he claimed that his daughter said there had been a robber (A 3348).
Defendant was asked if there were:
any people around the bar where Kelley worked that might have
been bothering her, if he had any enemies, if she had any
enemies, if either of them had any significant others outside of
their marriage, if . . . [defendant] had any disgruntled employees
at work who were mad at him, anybody recently fired, any
enemies, [or] anyone he could think that would be involved in
this (A 3380).
Defendant “said he had no names, he could not mention one person” (A
3380).
The only suspicious activity that he could think of was from a year or
so before, when one of the neighbors had mentioned a suspicious white
panelled van in the area (A 3380). He also advised the investigator that his
wife had purchased a security system through Time Warner Cable, but that he
had no knowledge of how it worked or if it was ever on (A 3350).
During the interview, defendant further explained his whereabouts on
the night of September 28, 2015, as he provided the investigators with the
names of the other poker players at Miller’s residence (A 3351). He showed
Page 30 of 163

 investigators his cellphone, and in particular, a text message he had sent his
wife that evening while playing poker (A 3347-3348). Defendant said that
there was a couple thousand dollars in the house, a safe under the bed upstairs,
and a gun safe in the basement (A 3349).
Senior Investigator Kevin Sucher of the New York State Police outlined
the investigation undertaken by the New York State Police Forensic
Identification Unit (A 2168, 2169, 2294, 2299). At 7:45 a.m., his unit entered
defendant’s residence dressed in Tyvek suits (A 2173, 2174).
According to Sucher, the “bloodletting event” began in the master
bedroom where the forensics unit found bloodstains on the bedding, curtains,
hardwood floor and dresser (A 2222, 2178, 2179). Based on his observations,
Sucher was of the opinion that Kelley Clayton was struck more than once
while she was in bed (A 2191, 2223). The blood evidence at the end of the
bed revealed that the victim had been “upright, walking, traveling, with blood
dripping on the floor” (A 2192, 2223). In the upstairs hallway, there were
pictures knocked off the wall, and there was blood on the master bedroom
door at the top of the stairs, on the floor and on the walls (A 2181, 2223). The
blood evidence suggested that the victim fled down the hallway to the door of
the last bedroom, belonging to her daughter, Charlie (A 2182, 2223).

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 Investigator David Kuntz took a swab from just below the door handle on the
door to Charlie Clayton’s bedroom (A 1729).
Sucher opined that when Kelley Clayton went down the stairs, she
either fell or a struggle occurred (A 2223).
Investigator Jason Fifield of the New York State Police Forensic
Identification Unit also collected evidence from the Clayton residence (A
3455-3456). One of the items he collected was a large yellow fragment that
had blood on it (A 3458-3459). Fifield also collected two fragments from the
barstools in the kitchen (A 3909).
In light of the information that defendant had placed a call on Linda
Miller’s phone at 10:53 p.m. to Michael Beard, the New York State Police
picked Beard up for questioning at approximately 2:00 p.m. on September 29,
2015 (A 2045). Beard was taken to the State Police barracks in Painted Post
for questioning (A 2043-2045). There, Investigator Lambert obtained a
consensual buccal swab from Beard (A 2049).
Additionally, Beard turned over his cellphone to Lambert for
examination and analysis (A 2046-2047).

Investigator Allison Regan

examined Beard’s Samsung cellphone on October 2, 2015, and discovered a
lot of deleted activity and powering events that were of interest, as they

Page 32 of 163

 occurred during the time of the murder (A 3577-3578, 3582-3583). That
discovery prompted her to call a case agent and recommend they speak with
Beard again (A 3583).
On October 2, 2015, police found a yellow maul handle on State Route
225 and Kneale Road in the Town of Southport (A 4549). Investigator Sucher
took a photograph of the handle found in the grass on the hillside, thirty-six
feet from the road shoulder (A 2226-2227). According to Sucher, the handle
appeared stained with blood (A 2878). New York State Police Forensic
Scientist Ronald Stanbro later compared the large yellow fragment collected
from the crime scene by Investigator Fifield, with the yellow maul handle
recovered from Route 225, and determined that it was an exact match (A 39043912).
Additionally, Stanbro processed the eight items of debris from Kelley
Clayton’s body turned over to the State Police by the medical examiner, Dr.
Nadia Granger (A 3910). Scientist Stanbro performed a chemical analysis of
the two yellow kitchen fragments and the eight fragments from Kelley’s body
and the maul handle (A 3910). The two yellow fragments and the maul handle
were all made of polypropylene (A 3911). He concluded that the yellow
fragments could have originated from the maul handle or an object made of

Page 33 of 163

 the same material (A 3911). Scientist Stanbro also concluded that some of
the debris from Kelley’s body could have originated from the inner core of
the yellow maul handle (A 3911).
Dr. Nadia Granger, Monroe County Medical Examiner, performed an
autopsy of Kelley Clayton on September 30, 2015 (A 2545, 2548-2550, 2452).
She found debris on Kelley Clayton’s t-shirt consisting of white flakes, and
red and yellow flecks (A 2553). She collected the debris and turned it over to
police during her physical examination of Kelley Clayton. Dr. Granger
observed that the victim had suffered significant damage to her face (A 2567).
In that regard, Kelley Clayton’s facial features were distorted as she had
sustained numerous fractures to her facial bones, including her eye sockets,
nose, and portions of her jaw (A 2556). In Dr. Granger’s words: “the entire
face . . . [was] actually sunken into the surface” (A 2556). The victim’s teeth
were damaged with some missing (A 2556). Dr. Granger also found tooth
fragments in the soft tissue of Kelley Clayton’s mouth area and recovered a
tooth from the victim’s hair (A 2556). The victim also suffered injuries to her
back, right hip, and buttocks, as well as bruises and abrasions to her hands and
arms (A 2557). Dr. Granger said the injuries to her right hip and buttocks
were consistent with the damage observed to the drywall at the victim’s home

Page 34 of 163

 (A 2569). Kelley’s left thumb and middle finger were broken (A 2557).
According to Dr. Granger, Kelley Clayton died as a result of blunt force
injuries to the head (A 2567). Dr. Granger further opined that the maul handle
was an object that could have been used to inflict the blunt force injuries found
on Kelley Clayton (A 2569). Dr. Granger secured evidence using a sexual
assault kit, and also secured a blood card from the victim (A 2563).
On October 14, 2015, Sergeant James Bailey of the New York State
Police searched a creek in Elmira Heights (A 2339-2342). He found keys in
the creek bed on the south side of E. 14th Street in the area of a bridge
abutment (A 2341-2344). Defense counsel established that if a person were
traveling on E. 14th Street in an easterly direction, the creek bed in which the
keys were found would be on the right side of the road (A 2347-2348). When
traveling easterly as such, Parker Landscaping would be on one side of the
creek, Villa Serene would be on the other (A 2342-2344).3
One of the keys found by Sergeant Bailey had the letters “GAR” written
on one side (A 2345). Investigator Fifield subsequently took the set of keys
recovered by Sergeant Bailey to the Clayton residence on Ginnan Road (A

3

See Exhibits 209 through 213 (A 2383-2387, 2388-2390, 2746-2753, 2760), for maps of
the surrounding area.
Page 35 of 163

 3473-3475). He found the key with the “GAR” lettering opened the “man
door”4 to the garage, while the second key opened “the interior door from the
garage going in the house” (A 3473-3475).
On October 14, 2015, Investigator Wilkinson “recovered some clothing
that was in a . . . grey synch-type bag . . . in a swampy area” off Grand Central
Avenue in Elmira Heights (A 2371-2372). The items were found on the
easterly side of Grand Central Avenue just north of the Lindenwald Haus (A
2372). Investigator Jason Fifield examined the items recovered and identified
them as, inter alia, soaking wet black jeans and a t-shirt, which were sent to
the New York State Police Crime Laboratory for examination (A 3475-3476,
3480, 3482).
Leah Egnor, a forensic serologist with the New York State Police
Forensic Investigation Center, examined various items of evidence submitted
to the laboratory by the New York State Police and Steuben County Sheriff’s
Office in connection with the Clayton homicide (A 4341-4342, 4344-4345).
Egnor was tasked with finding “blood evidence and also taking touch or
ownership swabs from various items” (A 4345). The yellow maul handle

4

This is the door for foot-traffic in and out of the garage.
Page 36 of 163

 tested positive for blood (A 4355-4357). The black t-shirt and black jeans
recovered by Investigator Wilkinson tested positive for blood (A 4361-4363).
Egnor took ownership cuttings and swabs from the jeans and t-shirt (A
4361-4361). Various swabs from the crime scene also tested positive for
blood, including a swab from the east bedroom door (A 4366- 4368). Egnor
preserved all swabs and representative cuttings for DNA analysis (A 4357,
4359).
Amanda Brinton, also a forensic scientist with the New York State
Police Crime Laboratory, performed DNA analysis of various items submitted
to her for examination (A 4419-4421). The items included a buccal swab from
Beard and a bloodstain card from Kelley Clayton (A 4424-4425). She
extracted DNA from the known samples and developed profiles for both
Michael Beard and Kelley Clayton (A 4425-4427). She then performed DNA
extraction procedures on the other evidence samples, and developed their
profiles, which she then compared to the known profiles of Michael Beard
and Kelley Clayton (A 4427-4428). Brinton found that the profile from the
maul handle swabs matched Kelley Clayton’s DNA profile (A 4427-4428).
Swabs taken from the various bloodstains throughout the house also yielded
profiles also matched Kelley Clayton (A 4441). A swab taken from the

Page 37 of 163

 bloodstain on the east bedroom door also contained a profile that matched the
Kelley Clayton’s profile (A 4444). Brinton also obtained a Y-STR profile
from that bedroom door (A 4441). She concluded that “[it] was a mixture
profile consistent with Michael J. Beard admixed with at least one additional
male donor, with Michael Beard being the major contributor” (A 4441-4442).
The Y-STR profile is only developed for males (A 4431-4444). Brinton said
that the Y-STR profile from the east bedroom door was unique to Michael
Beard’s male family line (A 4443-4444).
As for the swabs taken from the clothing recovered from the swamp,
although they tested positive for blood, Brinton found them to be insufficient
for DNA comparison purposes (A 4459-4460). However, with respect to the
ownership cuttings Egnor had taken, Brinton found the profile from the tshirt’s collar matched Michael Beard’s profile, and a partial profile from the
right sleeve edge was also consistent with Beard’s profile (A 4433-4435).
Elisa Tetreault testified that she returned home at 4:00 p.m. on the day
of Kelley Clayton’s death (A 2025-2020). She found her son, Luke, at home
in the garage, very upset (A 2025-2026). She also observed defendant’s white
pickup truck in the driveway (2027-2028). The following day, upon learning
that Luke’s truck was at ServPro, she drove to the business in defendant’s

Page 38 of 163

 white truck intent on returning home with her son’s truck (A 2028). While
she was en route, Laing called her to say they could not find the keys to Luke’s
truck (A 2028). By the time she arrived, the keys had been found in a lockbox
outside Laing’s office (A 2029, 2772). Elisa Tetreault returned defendant’s
truck and left with her son’s vehicle (A 2029-2031).
Once inside the building, the lockbox, which was located in the main
bay area outside his office, could be opened and closed at will as it was never
locked (A 2785, 2852). To exit the main bay area, one could simply go out
the motorized front bay door by pushing a button and either walking quickly
or rolling under the door before it closed (A 2783-2784).
Laing said that after Tetreault’s mother left, he entered defendant’s
truck and retrieved defendant’s passport as well as a paper bag half filled with
stacked money (A 2778-2781). Laing did not know the amount, but he
testified that at defendant’s arraignment, defendant advised him “I’ll probably
need the money that we had for the building” (A 2774). Moreover, defendant
said to Laing something to the effect that “the money for the building is in the
truck” (A 2777).
Laing and defendant had previously discussed purchasing a building
and financing the purchase, either through a bank or by paying in cash (A

Page 39 of 163

 2776-2777). Defendant offered one hundred thousand dollars in cash for the
purchase (A 2777).
Defendant, in his own words to Brian Donovan, provided a different
reason for the money in the truck (A 3327-3328). Defendant said he always
had money like that “for going to the casino” (A 3328). Further defendant
said that “whenever he goes gambling, he takes money and his passport” (A
3329). Defendant also gave Donovan a different reason for why he used Linda
Miller’s phone the night of the poker party (A 3328). Brian Donovan was a
mutual friend of the Clayton’s, who was back in the Elmira area in midNovember of 2015 to do some hunting (A 3322-3325). After reaching out to
defendant by text message, the two met at a restaurant in Batavia (A 3326).
Defendant told Donovan “that he made a phone call from the card game to the
person responsible for Kelley’s death” because he always talked with Beard
“many times a day, because he had work for him to do” (A 3327). When
Donovan asked why defendant used someone else’s phone, defendant
answered that his own phone had died (A 3328).
Tammi Black, office manager of ServPro, recalled that in mid-August of
2015, Laing and defendant made an effort to use ServPro funds to pay eighthundred-twenty-eight dollars to the South Carolina DMV for fines that Beard

Page 40 of 163

 owed (A 4554-4595, 4601-4602).

The check was returned August 17,

because the South Carolina DMV would not accept business checks (A 4594).
Following Beard’s termination on September 17, defendant advised Tammi
Black that he still wanted to pay the outstanding fine with a personal check
(A 4595). Tammi Black advised defendant “that’s awfully nice of you
considering that he’s been fired” (A 4595). Black recalled clearly that this
conversation happened after Beard’s termination but before Kelley Clayton’s
murder (A 4602-4603).
Andrea Spirawk, Kelley Clayton’s lifelong best friend, testified that she
was unaware of any extramarital affairs on the part of defendant (A 2138,
2142). However, at Kelley Clayton’s last birthday party in 2015, defendant
confided in Spirawk that “he was not satisfied by Kelley sexually” (A 2143).
He confided in Spirawk, “Andi, I’ve never cheated on my wife, but I don’t
know what I’m gonna do, I’m gonna lose it” (A 2144). Defendant said he was
tired of hearing Kelley complain (A 2144). He also said, “I like to get fucked
up on drugs and have sex, and you know Kelley” (A 2144). Spirawk knew
defendant meant that such behavior was “not Kelley” (A 2144). Spirawk was
upset at the conversation because she loved both Kelley and defendant, and
thus suggested marriage counseling (A 2145). She tried to give defendant a

Page 41 of 163

 hug, and in response defendant attempted to kiss her twice on the lips (A 21462147). Spirawk broke away, and defendant said “hey, I just thought you were
trying to make out with me” (A 2146, 2157-2158).
Abbe Tipton, the close friend of Kelley Clayton who was the last person
to communicate with the victim by text message on September 28, spoke with
defendant in February of 2016 (A 3143-3144). Tipton said:
He basically told me that he would never do
something like that, he loved her, but he spent so
much money on her, he cared about her, "do you
know how much money I spent on her," and talked
about trips that he spent money on (A 3145).
When asked if he had ever cheated on Kelley, defendant said “no,
never” (A 3162). Tipton asked defendant that if he didn’t do it, “why would
Mike Beard do it?” (A 3145). Defendant’s response was that Beard wanted
money and called him at 5:00 p.m. on September 28 asking for money (A
3145). In response, defendant told Beard that “he didn’t have any money on
him, that it was all at the house, he wasn’t going to be home that night, he was
coming home the next morning” (A 3145-3146).
In contrast to defendant’s statements to Tipton that he loved his wife
and never cheated on her, the People presented several witnesses who testified
as to defendant’s various affairs as well as demeaning statements he made

Page 42 of 163

 about his wife. First to testify in that regard was Patricia Stone, a customer
service manager for State Farm (A 1423).
Stone testified that during the summer of 2014, defendant called his
wife a “bitch” on occasion, and also complained that all she did was “bitch”
(A 2077). During that same summer, defendant said he was going to divorce
his wife (A 2077-2078). Later that summer, he said he could not divorce her
because she would take everything (A 2078).
Stone also testified that she had a sexual relationship with defendant
that began in February of 2014 (A 2079). On one occasion Stone engaged in
sexual intercourse with defendant at her residence in Lawrenceville,
Pennsylvania, when a second woman participated at the same time (A 20772080). Defendant also bragged to Stone that he slept with other women (A
2081).
A second woman, Nicole Dillon, who had also worked for State Farm,
corroborated Stone’s account of the threesome encounter (A 3423). In March
or April of 2014, two months after the threesome event, defendant and Dillon
went upstairs at the State Farm offices in Corning and had sex (A 3425-3426).
Feeling guilty for her actions, Dillon asked defendant why he would cheat on
his wife (A 3424). Defendant said, “she’s a real fucking bitch” and “you don’t

Page 43 of 163

 know what it’s like when she take (sic) her top off and her tits fall to the floor”
(A 3424). Dillon asked “why don’t you leave her”, to which he said “that
there’s no way he could leave her, that she would take everything, and that he
wished someone would come and fucking take his wife” (A 3424-3425).
Next to testify about defendant’s affairs was Elizabeth Woodard, who
met defendant while she was working for Finger Lakes Premier Properties
which hired ServPro to clean up one of their flooded properties (A 34353436). She testified she had several sexual encounters with defendant: at job
sites; a casino; her apartment in Geneva, New York; in New York City; and at
defendant’s own home in the living room (A 3436-3438).
Woodard testified that just two weeks after Kelley Clayton’s death, she
and defendant had sex in her Geneva apartment (A 3436). The sexual
encounter in New York City was in February 2016 after the murder (A 3437).
Defendant also confided in Woodard, that he contemplated leaving his wife
before his daughter Charlie was born, but when he found out that his wife was
pregnant, he “opted to stay” (A 3439).
Molly Bourgeois, defendant’s niece also testified as to his affairs (A
3442-3443). Defendant had conversations with Bourgeois starting in the
summer of 2014 and continuing through the summer of 2015 regarding the

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 various women in his life other than Kelley Clayton (A 3445). In that regard,
defendant confided that he had slept with multiple women since marrying
Kelley (A 3445). He told Molly of a neighbor in North Carolina, of a woman
named Cheryl Johnson, and of a nurse in Elmira with whom he had been
sleeping with through the summer of 2015 (A 3446). On one occasion when
Cheryl Johnson and her husband slept over at defendant’s home, defendant
and Johnson had sex in one of the bathrooms (A 3446).
Defendant also confided in Molly Bourgeois that he did not love or like
his wife, that he would divorce her as the children got older, and that he did
not want to be with her (A 3446). He complained that his wife was very lazy,
such that when returning home, he would find the house dirty (A 3446).
During the Christmas of 2014, defendant advised Bourgeois that “this was
going to be the last Christmas with him around and us being together as a
family” (A 3447).
Kevin Morris also provided another insight into the relationship
between defendant and his wife. When discussing money that he supposedly
kept in a safe in his home, defendant said "I would never let Kelley have
access to that money. The only two people that have access to that safe are
myself and my mother" (A 1648).

Page 45 of 163

 Patrice Stone provided another insight when she testified that at the end
of 2014 and beginning of 2015, defendant wanted a quote on increasing his
wife’s life insurance from five hundred thousand dollars to one million dollars
(A 2078-2079).
Paul J. (P.J.) Gingrich was a State Farm agent who handled the
defendant’s insurance needs through 2014 (A 2635-2636). In August 2014
Gingrich started working at his uncle’s insurance’s agency, the Gingrich
Insurance Agency in Lebanon, Pennsylvania (A 2634-2635).

In 2012

Gingrich wrote a five hundred thousand dollar life insurance policy for Kelley
Clayton (A 2652-2653).
In September of 2014, defendant reached out to Gingrich advising that
his State Farm insurance was up (A 2614). Defendant wanted to increase all
life insurance policies, including doubling his wife’s policy from five hundred
thousand dollars to one million dollars (A 2642). The application for Kelley
Clayton’s policy listed erroneously that her annual income was five hundred
thousand dollars (A 2657). Gingrich said the mistake was on his part (A
2657). In any event, the life insurance policy was approved in November of
2014 (A 2659).

Page 46 of 163

 Following Kelley Clayton’s murder, defendant would appear at the
ServPro office with his father and talk about cleaning up the mess left behind.
He also displayed a photograph of the blood on the floor because he was upset
that he could not get it out (A 2111-2112).
Richard Flood, an adjuster for Erie Insurance, which had issued the
homeowner’s policy on the Ginnan residence, testified that no claim of theft
or property loss was ever filed regarding the events of September 29, 2015 (A
4406-4409, 4412). He specifically testified that there was no claim for any
theft of money, jewelry, or a lock box (A 4412).

Page 47 of 163

 POINT I
THE VERDICT WAS SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE AND WAS NOT AGAINST THE WEIGHT OF THE
EVIDENCE.
A. The People adduced sufficient evidence at trial to support the
jury’s verdict finding defendant guilty of murder in the first and
second degree.
1. Introduction
Kelley Clayton, defendant’s wife, was discovered during the early
morning hours of September 29, 2015, brutally murdered in her home in the
Town of Caton, in Steuben County. At the time, defendant was a local
businessman and lived with his wife and two young children. Although the
family appeared to be normal, the evidence at trial unequivocally showed that
defendant was unsatisfied with the marriage and frequently had other sexual
partners. He also repeatedly expressed his desire to be free of the marriage,
but claimed that he could not divorce Kelley for financial reasons. Further,
defendant doubled his wife’s life insurance policy to one million dollars.
Michael Beard was a local laborer who drank, used drugs, and was
frequently fired. He lived with his girlfriend and young children in an
apartment owned by defendant.

The relationship between Beard and

defendant seemed inexplicably close. Defendant collected rent from Beard;

Page 48 of 163

 tried to pay an outstanding fine for Beard; defended Beard against allegations
of theft on the job; and, although Beard was fired at least twice from
defendant’s businesses, rehired Beard and recommended him to other
employers.
In the days leading up to the murder, defendant and Beard frequently
met and communicated.

A mountain of evidence including traditional

telephone and GPS records, security camera recordings, and digital
intelligence, revealed the two communicating through text messages,
telephone calls, and face-to-face meetings.

During these critical days,

defendant provided Beard with multiple forms of transportation for use in the
crime, including defendant’s own truck, the personal truck of an unwitting
ServPro employee, and a mountain bike. From the facts established at trial, it
was clear that Beard had committed the actual murder. It was also reasonable
to infer that defendant had a motive for commissioning the killing. He had
provided the means, motivation, opportunity, knowledge, and direction for
Beard to commit the murder. By using Beard’s need for money and/or
employment, defendant exploited his intimate knowledge of Beard’s life to
hire him to commit the crime.

Page 49 of 163

 Defendant took significant measures to conceal his involvement in the
crime, including premeditating alibis, intentionally using vehicles equipped
with GPS tracking technology, using phones other than his own at critical
times, deleting certain communications, and attempting to secure
inconspicuous meeting locations. Shortly after discovering his wife brutally
murdered in their home, defendant began claiming that the events were the
result of a robbery, although there were no obvious signs of such a crime.
When questioned by police, defendant never mentioned Beard as a suspect.
Police uncovered significant inconsistencies in defendant’s account over the
course of the investigation into the murder (A 1895, 2774, 2777, 3105, 33273328, 3812, 3814).
2. Standard of Review
The standard on appeal for determining whether a conviction is
supported by legally sufficient evidence “is the same for circumstantial and
non-circumstantial cases—whether after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” People v.
Grassi, 92 N.Y.2d 695, 697 (1999) rearg. denied, 94 N.Y.2d 900 (quoted in
People v. Marvin, 162 A.D.3d 1744, 1745 [4th Dept., 2018]). “It is well

Page 50 of 163

 settled that, even in circumstantial evidence cases, the standard for appellate
review of legal sufficiency issues is whether any valid line of reasoning and
permissible inferences could lead a rational person to the conclusion reached
by the [jury] on the basis of the evidence at trial, viewed in the light most
favorable to the People.” People v. Hines, 97 N.Y.2d 56, 62 [2001] rearg.
denied, 97 N.Y.2d 678 [internal quotation marks omitted]; see generally
People v. Bleakley, 69 N.Y.2d 490 [1987]); People v. Clark, 142 A.D.3d
1339, 1340 (4th Dept., 2016) lv. denied 28 N.Y.3d 1143.
Indeed, when reviewing a jury’s finding, it is not an appellate court’s
duty “to determine whether it would have reached the same conclusion as the
jury with respect to a proposed innocent explanation of the evidence. Rather
the appellate court, viewing the evidence in the light most favorable to the
People, must decide whether a jury could rationally have excluded innocent
explanations of the evidence offered by the defendant and found each element
of the crime proved beyond a reasonable doubt.” People v. Reed, 22 N.Y.3d
530, 535 (2014) rearg. denied 23 N.Y.3d 1009. So long as the jury could have
rationally

drawn

a

guilty inference,

the

fact

that

other

innocent inferences may be drawn from the evidence is irrelevant. People v.
Rossey, 89 N.Y.2d 970 (1997). Measured by that standard, the proof in this

Page 51 of 163

 case was clearly sufficient. Although this was a purely circumstantial case,
there were no major gaps in the proof and the jury’s verdict rested on a sound
factual foundation.
3. Murder in the First Degree
Murder in the First Degree, as charged to the jury, required the People
to prove beyond a reasonable doubt that: (1) defendant caused the death of his
wife by procuring the commission of her killing pursuant to an agreement with
Michael Beard to commit the killing for or in expectation of receipt of
something of pecuniary value; (2) that defendant did so with intent to cause
the death of Kelley Clayton; and (3) that defendant was more than eighteen
years old at the time of the crime (A 5001-5002). It was conceded that
defendant was over eighteen years old and that Beard killed Kelley Clayton.
The outstanding question was whether Beard had killed her pursuant to an
agreement with defendant that the latter would provide Beard with something
of pecuniary value in return.
Defendant claims that the case against him lacked any direct evidence
that he sought, desired, intended, or agreed to the murder of his wife, or that
he procured the commission of the killing pursuant to an agreement with
Michael Beard to commit the murder. See Defendant’s Brief at 21. Defendant

Page 52 of 163

 goes on to claim that there were, and remain, significant gaps in the inferences
fairly drawn from the evidence. See Defendant’s Brief at 21-22. Further,
defendant claims that the jury’s verdict, rather than resting on sound analysis
and proof, was instead based on conjecture and explicit requests by the
prosecution in summation that the jury speculate. See Defendant’s Brief at
22. Ultimately, defendant concludes that his conviction must be set aside
because the People failed to prove beyond a reasonable doubt that he
procured, or was an accomplice to, the intentional murder of his wife, Kelley
Clayton. See Defendant’s Brief at 23.
The People disagree and submit that there was ample evidence that
defendant and Beard jointly planned, prepared for, and committed the murder
of Kelley Clayton, and that Beard agreed to participate in exchange for
something of pecuniary value.
a. Defendant’s close relationship with Michael Beard evidenced
defendant’s complicity in the murder.
The relationship between Michael Beard and defendant was very close.
It began when Beard worked for defendant at the latter’s Paul Davis franchise
some years earlier (A 1590-1591). The company performed restoration work,
and Beard was a general laborer (A 1590-1591). At one point while Beard

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 worked for defendant, the Paul Davis franchise operated from defendant’s
home, which allowed Beard to become familiar with the layout of the property
and the house (A 1612, 1625, 1764-1765). In addition, Luke Tetreault, a coworker of Beard’s at Paul Davis, testified that defendant always gave Beard
additional work when there was none available at Paul Davis, whether it was
cleaning up defendant’s property, cutting wood, mowing the lawn, or blowing
leaves (A 1764, 1765). Likewise, when there was work to be done on the side,
defendant gave it to Beard (A 1952, 1953). For instance, when his business
partners remodeled their home, defendant suggested Beard for the job and,
subsequently, the Sheehans hired Beard to do some of the demolition work.
(A 1952, 1953).
In early 2015, defendant joined with Brian Laing to open a ServPro
franchise (A 2723-2734, 2727-2728). Although defendant had previously
fired Beard from Paul Davis for stealing, upon defendant’s recommendation,
Brian Laing hired Beard as a laborer at ServPro (A 1591-1592, 2728-2729).
After all, Beard was a hard worker upon whom defendant could rely to
perform even the dirtiest jobs (A 2767). Above all, the relationship was such
that, when defendant called, Beard responded (A 1390). For instance, Holly
Beard (née Barrett) testified that defendant called Beard during her daughter’s

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 birthday party, and Beard left it to respond to defendant’s needs (A 1391).
Throughout their relationship leading up to the murder, Beard was only a
phone call away for defendant.
During the course of their relationship, Beard was not only monetarily
compensated, but also received personal benefits. For example, Holly Beard
testified that she, Michael Beard, and their family had been at the defendant’s
residence fishing in the pond (A 1393). Kevin Morris testified that not only
had Beard fished in defendant’s pond, but he was also allowed to use
defendant’s four-wheeler (A 1610, 1626).
Moreover, the two worked together, and Beard also rented an apartment
from defendant. In the beginning of the summer of 2015, Beard and Barrett
rented a two-bedroom apartment at 1696 Grand Central Avenue in Elmira
Heights for seven hundred dollars per month (A 1950). By the end of the
summer, Beard and Barrett moved into a four-bedroom apartment, at the same
address, paying one thousand dollars per month (A 1950).

Although

defendant had a business partner who usually collected the rent from tenants,
defendant was the only person who collected the rent from Beard (A 1388,
1949, 1958)

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 Laing fired Beard on September 17, 2015, but defendant continued to
stay in frequent contact with Beard in an effort to find him other employment
(A 2953, 3239, 4182, 4404, 4405). Defendant also continued to seek rent
payments after Beard’s termination.

Laing testified that he overheard

defendant tell Beard that he would have to move (A 2864). Defendant then
visited Beard at his apartment on at least two occasions, allegedly looking for
the rent (A 3605-3606, 4013, 4015).
This relationship, while not incriminating by itself, was the foundation
for defendant’s procurement of Kelley Clayton’s murder. Beard’s termination
was the event which afforded defendant an opportunity to exploit Beard’s
circumstances. It was Beard’s reliance on defendant for housing, employment
and future employment that made Beard a willing accomplice to commit the
killing. Thus began the planning, preparation, and execution of Kelley
Clayton’s murder for defendant’s personal benefit and for Beard’s pecuniary
gain.
b. Defendant had motive to have Kelley Clayton killed.
The jury was presented with the motive defendant had to hire Beard
to kill his wife. In addition to the close relationship between defendant and
Beard, and the various circumstances surrounding the planning and

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 preparation for the murder, the jury was presented with the motive defendant
had to kill his wife. Although the prosecution does not need to prove motive,
particularly in circumstantial evidence cases, “motive often becomes not only
material, but controlling.” People v. Mixon, 203 A.D.2d 909 (4th Dept., 1994)
lv. denied 84 N.Y.2d 909 (1994); People v. Toland, 284 A.D.2d 798 (3rd
Dept., 2001), lv. denied 96 N.Y.2d 942; People v. Fitzgerald, 156 N.Y. 253
(1898); compare People v. Carter, 158 A.D.3d 1105 (4th Dept., 2018) (In
reversing the conviction as against the weight of the evidence, this Court noted
that the People introduced no evidence of motive, and the Court “could not
conceive of a possible motive” from its review of the record). Moreover, as
the Court of Appeals stated in Harris:
[t]he rule is well established that when a husband is charged with
the murder of his wife it is competent to show his relations with
a paramour. The reason for the rule is stated to be that such
evidence tends to establish the absence of affection for the wife
and a motive for getting rid of her People v. Harris, 209 N.Y. 70
(1913).
Here, there was proof at trial that defendant, who had multiple
extramarital affairs, had lost affection for his wife. Several women testified
about their intimate relationships with defendant, and his disparaging words
about his wife.

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 Examples of extramarital affairs were disclosed by Patricia Stone and
Nicole Dillon, who testified as to separate sexual encounters they had with
defendant, as well a group sexual encounter (A 2079, 2082-2083, 3423, 34253426). Moreover, defendant told them that his wife was a “bitch,” that all she
did was “bitch,” and that he wanted to divorce her but there was no way he
could leave her, as she would take everything (A 2077-2078, 3424, 3425).
Finally, defendant made disparaging remarks about his wife’s appearance to
Dillon (A 2924).
Next, the jury heard the testimony of Elizabeth Woodard who also had
a sexual relationship with defendant (A 3436). Woodard said that she had
numerous sexual encounters with defendant, some before the murder and
some soon after the murder (A 3437, 3438). Defendant told Woodard that he
thought about leaving his wife before his daughter was born, but once he
found out she was pregnant, he stayed (A 3439).
To his niece, sixteen-year-old Molly Bourgeois, defendant confided
that he was sleeping with multiple women throughout his marriage (A 1361,
3445). In addition, he made statements to Molly that he did not love his wife,
let alone like her. Defendant said he was going to divorce her when the
children got older. He said he did not want to be with his wife because she

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 was very lazy (A 3446). Further, defendant told Molly that he would come
home and the house was not clean (A 3446). At Christmas in 2014, defendant
told his niece that it was going to be the last Christmas he would be around,
and the last time they would be together as a family for Christmas (A 3447).
Defendant denied having any extramarital affairs when confiding in
Andrea Spirawk, Kelley’s lifelong best friend. However, he told Spirawk that
his wife no longer sexually satisfied him and that he did not know what he
was going to do. When Spirawk tried to console him with a hug, defendant
attempted twice to kiss her on the lips. When she rebuffed him, he blamed
her saying he thought that Spirawk wanted “to make out” with him (A 2146).
This interaction occurred on approximately August 1, 2015, two months
before the murder.
The People submit that the numerous extramarital affairs, together
with defendant’s disparaging and at times crude remarks about his wife,
clearly demonstrated that defendant had lost affection for his wife, and wanted
out of the marriage without a financial loss.
There was also evidence that defendant had recently increased the life
insurance policy on his wife to one million dollars. Although defendant

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 offered an innocent explanation for the increase, this action nevertheless gave
insight into the broader picture (A 2651-2671).
c. Defendant provided the means and opportunity for Beard to kill
Kelley Clayton.
Even after Beard was fired from ServPro, defendant continued a
relationship and extensive communications with him. Phone records, which
included: location information; GPS records; the content and timing of text
messages; the times of telephone calls; and the telephone numbers used in
making calls; as well as testimony from many witnesses; all provided a mosaic
that, when considered together, provided the evidence from which the jury
reasonably inferred that Beard and defendant had an agreement to kill Kelley.
The evidence showed defendant’s strong motive and clarified that the murder
was the culmination of several days of preparation by defendant and Beard.
i.

Defendant provided Beard with the means of transportation to
commit the murder.

In the late evening hours of September 28, 2015, Michael Beard drove
a maroon pick-up truck to the area of defendant’s home in Caton, New York.
With him was Mark Blandford, who testified that the two drank beers and
drove to a road with no street lights. Blandford was to be the lookout. Beard
then took something from the back of the truck and left. He returned about

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 fifteen minutes later, sweating and carrying a sticklike object at his side (A
1497-1510). He had just bludgeoned Kelley Clayton to death with it.
The Fleetmatics GPS records, the Parker Landscaping and Lattabrook
Storage security videos, the cellphone data extractions, and the testimonies of
Mark Blandford and Larry Johnson conclusively proved that defendant
provided Beard with transportation, which constituted the means and
instrumentalities for committing the crime. Viewing this evidence in the light
most favorable to the People, as the court must on appeal, defendant provided
Beard with a vehicle on two occasions: first, on September 23, and then again
on September 28.
Defendant had access to his own white pickup truck and a green
ServPro vehicle from his business. Then, two days before the murder,
defendant’s employee, Luke Tetreault, borrowed a four-wheeler. He picked
it up from defendant’s house in his maroon truck (A 1768-1771). When
Tetreault drove his truck to ServPro on Monday morning, defendant suggested
they simply swap trucks, and he (defendant) would take Tetreault’s maroon
truck, unload the four-wheeler, and return the truck to Tetreault on Tuesday
(A 1773). Meanwhile, Tetreault would have defendant’s white truck. Thus,

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 on Monday, September 28, defendant had the use of the maroon truck as well
as a ServPro vehicle.
Around 6:00 p.m. on September 28, a number of events occurred, from
which the only reasonable inference is that defendant gave Tetreault’s truck
to Beard. At 5:55 p.m., the records revealed a phone call from Beard to the
defendant, after which the two were found to be in close proximity to each
other in Elmira Heights. At 6:01 p.m., Tetreault’s truck was recorded passing
R.S. Parker Landscaping at 415 E. 14th Street, headed east toward Lake Road.
At 6:04 p.m., Lattabrook Storage video recorded Tetreault’s truck arriving at
the ServPro parking lot. Phone records showed defendant’s and Beard’s
phones were both in the area of ServPro at 6:08 p.m. At 6:10 p.m., the
Lattabrook security video showed the same maroon truck pulling out of
ServPro. Within seconds, a ServPro truck operated by defendant also pulled
out from ServPro. Tetreault’s truck then passed Parker Landscaping again but
this time headed west at 6:14 p.m. By 6:17 p.m., defendant had driven in the
green ServPro truck to Head Over Heels Gymnasium on Lackawanna Avenue
(A 2763).
Defendant then drove home, arriving at 7:30 p.m. The evidence
supports the reasonable inference that defendant picked up Beard in Elmira

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 Heights, drove him to ServPro, and then gave Beard the maroon truck, and
took a ServPro truck for himself. Furthermore, after the murder, video
surveillance at Lattabrook Storage recorded that Tetreault’s truck returned to
ServPro, after which a mountain bike left the ServPro parking area (A 20082009). The next morning, Brian Laing found the key to that truck in ServPro’s
key lockbox.
The security video at Lattabrook Storage recorded the mountain bike at
approximately 1:00 a.m. on September 29, exiting the ServPro parking lot. A
maroon truck is recorded returning minutes earlier to ServPro, at a time
consistent with Beard having committed the murder in Caton and then having
returned to Horseheads.
Defendant provided Beard with a mountain bike. Beard first asked
defendant for a bike following his trip with defendant to the Caton area on
September 21 (A 3608).

Holly Beard testified that defendant delivered a

mountain bike to their home at 1691 Grand Central Avenue (A 1398). Larry
Johnson, who rode with Beard to the area of the Clayton residence during the
early morning hours of September 24, saw Beard take a mountain bike out
from the back of defendant’s truck at that location (A 1674). Later that day,
defendant texted Beard and, in response Beard said “gonna ride bike

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 tomorrow” (A 3619). Then, on September 29, shortly after 1:00 a.m., a bike
leaves ServPro approximately four minutes after a Dodge truck pulls into the
ServPro driveway with its headlights off (A 2008-2009).
From the facts and the reasonable inferences one can draw therefrom,
the jury knew defendant gave Beard a mountain bike, and that the need for the
bike was established during the planning of the murder. Ultimately, the jury
knew, based upon such circumstantial evidence, that it was Beard, who, after
murdering Kelley Clayton and returning Tetreault’s vehicle to ServPro, rode
past Lattabrook Storage on his way home. This above confluence of events
led to the clear inference that defendant had given Beard a bike and a truck to
facilitate the commission of the murder.
ii.

Defendant facilitated Beard’s access and provided critical
logistical and other information necessary for Beard to
commit the murder.

In addition to providing transportation, the evidence permitted an
inference that defendant also supplied Beard with the means to commit the
murder. No forced entry was found at defendant’s home, thus raising the
obvious inference that the killer had a means of access to the home (A 3350).
After the murder, the police recovered two keys to the Clayton home
from a creek located on the route Beard took when returning home from
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 ServPro after dropping off Tetreault’s truck at 1:00 a.m. on September 29.
One key, labeled “GAR,” opened the ‘man door’ to the attached garage, and
the other key opened the door between the attached garage and the defendant’s
house proper (A 2345, 3474, 3475). In fact, if the murderer were only to have
the single key from the shelf inside the garage, and the ‘man door’ to the
garage was locked, force would have been required to enter (A 2580). It is
highly unlikely that when planning for such a crime, entry would have been
left to chance.
As proven at trial, a means of entry and modes of transportation were
not the only items defendant provided Beard in furtherance of the murder.
Beard would have to know that Kelley Clayton was home alone with the
children and no husband. She was not at her sister’s or mother’s homes or
elsewhere at the time of the murder. The only person with that information
who would communicate with Beard was the defendant.
Another example of defendant providing Beard with information and
access occurred on September 21, when he and Beard drove to either the area
of defendant’s house or the house itself. That morning, defendant texted
Beard to set a meeting at 11:30 a.m. Beard immediately cancelled plans to
work. Sometime that morning, defendant texted his wife, and made plans to

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 meet her in Corning for lunch after her gym class at noon, and thereby ensured
that she would not be home until after 1:00 p.m. (A 909). Phone records
plotted by Sy Ray showed that during that morning, Beard’s phone had been
at or near his home in Elmira until shortly before 11:30 a.m., when he moved
to the west. By 11:42 a.m., Beard was in the Caton area near defendant’s
home. At 12:02 p.m., defendant’s phone was hitting off the same tower as
Beard’s. At 12:14 p.m., defendant’s phone made an outgoing phone call
“within the same general area.” Ray concluded that both phones started in
Elmira, went west, and then returned to Elmira. At 12:21 p.m., Beard, having
returned to the area of his house, texted defendant, “need a bike” (A 40014010). In the context of the other evidence, it was reasonable to infer that this
was a meeting to discuss defendant’s intent and instructions regarding the
crime.
iii.

Defendant directed Beard’s actions and coordinated his
movements.

Events during the week before the murder, considered as a whole, also
led to the reasonable inference that Beard acted in coordination with, and at
the direction of, defendant. Throughout this timeframe, there were numerous
calls and texts between the two. In addition to the sheer volume of messages,

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 these communications frequently happened at times that were tellingly close
to other events, indicating a probable connection.
One such example occurred on September 23. That morning, Beard
received a call from an alternate ServPro number (607-873-7654) (A 4013,
4016). Within two minutes of receiving that call, Google Wi-Fi recorded him
moving north to ServPro, where he arrived fourteen minutes later (A 4018).
Meanwhile, at 9:15 a.m., cellphone records showed that defendant called
Lattabrook Storage and asked about their surveillance cameras (A 2023,
4016). John Holchuk, the owner of Lattabrook Storage, testified that a week
before the murder, he talked to someone who claimed to be Brian from
ServPro about the camera angles (A 2023).
Once Beard arrived at ServPro, a ServPro vehicle engine started (A
4018). Within minutes, the cellphone records and Fleetmatics GPS records
showed the ServPro vehicle and Beard’s phone traveling in close proximity
and then going their separate ways (A 4018). This time, it took Beard only
eight minutes to arrive at Cleveland Avenue, an area farther away from
ServPro than his own apartment (A 4020).
According to Sergeant Logsdon of the Steuben County Sheriff’s Office,
it took at least ten to eleven minutes for a physically fit person to ride a

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 mountain bike from Beard’s house to ServPro (A 4336-4338). Based on the
sergeant’s testimony, as well as the sequence of communications and events
that took place, it is reasonable to infer that defendant called Beard, who
immediately rode the bike to ServPro, and then drove defendant’s white truck
to Beard’s neighborhood.
It is also important to note that although Larry Johnson’s involvement
is temporally removed from this sequence of events, his testimony at trial was
that he saw defendant’s white truck during the early morning hours of
September 24 parked a couple of blocks past Beard’s apartment. Johnson then
said they drove to the area of the Clayton home, where they parked in the road.
The reasonable inference one can draw from these facts was that defendant
loaned Beard his white Dodge Ram on the morning of September 23 after
checking on whether they could be seen by surveillance cameras. Beard drove
the truck from ServPro and parked it a few streets over from his apartment,
where it remained until he and Johnson drove it to the area of the Clayton
residence on the morning of the 24th.
On the afternoon of Wednesday, the 23rd, Beard sent a text message to
defendant asking for an eviction notice, a letter of release, “and a little bit
please.” (A 3612). The ServPro vehicle, which was traveling in the opposite

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 direction, eventually returned to ServPro at 11:53 a.m. At 12:39 p.m., the
defendant started the ServPro vehicle and travelled to Elmira Heights, where
he stayed for several minutes. Laing testified that in reviewing the Fleetmatics
GPS records, defendant was in Elmira Heights for five minutes before leaving
for home (A 2922, 4010). Afterward, defendant travelled home then, at 1:43
p.m., drove to Cleveland, Ohio for training (A 4020, 4022).
Later that night, after working with Larry Johnson in Wellsburg until
11:30 p.m. or 12:00 a.m., Johnson and Beard returned to the area a few streets
away from Beard’s apartment where Johnson saw and recognized defendant’s
white truck parked on Beard’s street (A 1671-1672, 1683). Johnson testified
that Beard had the keys and the two used the white truck to drive to the area
of defendant’s home, where Beard took a bike out of the back and rode toward
defendant’s house. When they were initially riding in the truck together,
Beard’s phone was turned off, but at 1:42 a.m. it was turned back on. Phone
records showed that Beard was in the Caton/Lindley area at the time (A 16731676, 1694, 4023). Ten minutes later, at 1:52 a.m., Beard and Johnson were
in the Elmira area, and Beard texted defendant, “when you can call me” (A
4025). Beard and Johnson drove back to where defendant’s truck had been
parked. Johnson left in a van and Beard went home to his apartment.

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 After Beard sent his text message on the 24th, defendant first called his
wife and then called Beard from Cleveland. He tried twice but made no
connection with Beard’s phone number, so he then called Larry Johnson’s
phone (which had been used to call defendant in the early hours of the 22nd).
Later that day, Beard texted defendant regarding some “boxes” being watched
on the street (A 4033-4034). In fact, Beard left his home to go to the same
area where defendant’s truck was parked the night before, and texted
defendant the message that “The boxes are being watched on the same street.”
Then, in response to defendant’s “what,” Beard texted, “remember where I
put the boxes on that street” (A 4033-4034). Immediately afterwards, there
was a call from defendant to Beard, and the two spoke for more than four
minutes (A 3758).
On Saturday, September 26, as defendant drove back from Salamanca
(where he had stayed overnight on the way home from Cleveland), he and
Beard had several phone conversations. As defendant neared Horseheads,
Beard travelled from Elmira Heights. Therefore, shortly after noon, they were
both in the area of ServPro (A 1836, 4035-4040). A few minutes later, both
left that area. Beard travelled to the same area where defendant’s white truck
had been parked on Thursday, September 24, and then returned to the area of

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 his apartment. A reasonable inference from this evidence is that Beard met
defendant at ServPro to return the white truck.
Finally, on the night of the murder, the 28th, defendant was at his
Monday night poker game. At 10:53 p.m. Beard was home when defendant
called him from the game (using his host’s wife’s phone and deleting that call)
(A 1900). Within minutes, Beard was on the move, riding the mountain bike
that defendant procured for him to the Dandy Mini Mart, which is located at
the intersection of Grand Central Avenue and E. 14th Street in Elmira Heights.
A clerk at the Dandy recognized Beard that evening and recalled that he was
at the store for a few minutes before riding away on a mountain bike, headed
south toward his apartment. She smelled no alcohol on Beard (A 1462-1463,
1465-1466). Beard returned home and left to pick up Blandford. They first
went to the Weston Store to buy some beer. Beard and Blandford then drove
to defendant’s home on Ginnan Road. Beard turned off his phone at 11:24
p.m. (A 3625). The reasonable inference from this evidence is that defendant
gave Beard the go signal; Beard went to the Mini Mart to establish an alibi,
and then headed to the murder site.
At each instance, the evidence showed Beard responding to defendant’s
direction. Indeed, no other inference would have been reasonable.

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 d. Defendant’s unusual behavior before and after the murder
implicated his direct involvement.
Although no singular instance would be particularly troubling, when
taken as a whole, and in conjunction with all the other events, defendant’s
behavior contributed to the reasonable conclusion that defendant was
instrumental in planning his wife’s murder.
In the days leading up to the murder, defendant was at times curiously
very open and at others quite secretive. For example, of his many phone and
text contacts with Beard, most were made from his own phone and, thus,
easily traceable by law enforcement. However, several key contacts were
either made from a different phone and/or were deleted. Most noteworthy
was the 10:53 p.m. call made to Beard on the night of the murder from
defendant’s poker game – that call was made from the phone of the host’s
wife and then deleted. Defendant lied to obtain the host’s wife’s phone, telling
her he had left his cellphone in the car. To the contrary, one of the players
testified that defendant used his phone at the poker table, a fact verified by
defendant’s cellphone records (A 1895, 3105, 3812, 3814).
Another time defendant used a phone other than his own was on
September 23 when he called Beard from an alternate ServPro telephone

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 number at 9:09 a.m., after which he called Lattabrook Storage at 9:15 a.m.,
inquiring about any security cameras with a view of ServPro, and while
pretending to be Brian. Defendant gave Beard a truck at approximately 9:35
a.m. in the area of ServPro that day. (A 2897, 4017-4020).
A third time defendant used another phone was the call defendant made
to Beard at 12:09 p.m. from a landline telephone at M&M Auto on September
28. Defendant placed that call after he had secured a truck from the unwitting
Tetreault, which he would later provide to Beard. At the time of the 12:09
p.m. call, Beard was in the vicinity of the Lindenwald Haus, which by
coincidence was the same business defendant had called on Saturday morning
inquiring about security cameras, after speaking with Beard, and after texting
Tetreault that he did not have to return his four-wheeler by Monday. (A 27132715, 3810). Although defendant claimed there was poor cellphone reception
at the M&M Auto shop, Roland Duell, M&M Auto’s head mechanic, testified
that Verizon cellphone service worked “perfectly” (Verizon was the carrier
for defendant’s phone) (A 1917-1918, 3213, 3217). Moreover, defendant was
only at M&M Auto long enough to enter the service bay, place the call, and
leave. The Fleetmatics GPS records showed defendant at home at noon, at
M&M Auto at 12:08 p.m., and then at State Farm Offices located at 341 Park

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 Avenue by 12:13 p.m. (A 4088-4089). In light of these facts, it was reasonable
for the jury to infer that defendant was attempting to conceal his
communications with Beard, who would drive a vehicle defendant provided
to commit the murder.
At the times defendant made the aforementioned calls to Beard from
phones other than his own, the credible evidence suggested that his own phone
was working properly (A 1914-1917, 3618, 4016).
Defendant’s text to Tetreault telling him he could keep the white truck
until Monday was also suspect. Of the many messages and calls defendant
sent that Saturday, that was the only message he deleted (A 4935).
Furthermore, defendant made several calls from his own phone to
business contacts to recommend hiring Beard. (A 2057, 3239, 3754). This
was suspious, as defendant had previously fired Beard for stealing while
working for Paul Davis, and Laing had just recently fired Beard from ServPro.
Defendant also used his vehicles in ways that could be interpreted as
purposely open or secretive. He used the ServPro vehicle with Fleetmatics
GPS tracking capabilities at times when he would want to be tracked, such as
driving it to the poker game on the night of the murder (A 1796-1797). He
provided Beard with Tetreault’s maroon pickup, which if it had been seen

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 would not have been readily associated with defendant. In that regard,
defendant secured use of that truck by telling Tetreault not to unload the fourwheeler, even though it would have been easy and quick for him to do so on
Monday morning at ServPro. (A 1773). Defendant also never mentioned to
Tetreault that he was lending the truck to Beard (A 1792). As already stated
above, when defendant loaned his own white truck to Beard, he only did so
after first calling from an alternate ServPro line and then checking on possible
surveillance cameras at Lattabrook Storage. (A 1373).
Beard’s efforts to conceal his actions also provide evidence of
defendant’s guilt.

For example, it is clear that Beard powered off his

cellphone at critical times. Beard shut off his phone just before he and Larry
Johnson drove up to defendant’s house on September 24 (A 1674). Beard
shut off his phone a second time on the 28th when he and defendant were
together at ServPro shortly before he left with Tetreault’s truck, with
defendant following him in a green ServPro truck (A 3623-3624). Beard also
shut off his phone during the time of the murder on the night of the 28th.
Investigator Regan testified that once she started looking at Beard’s
cellphone and noticed the powering events, she immediately called a case
agent and advised that they should question Beard (A 3582, 3583). Clearly,

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 from these circumstances, the jury could have reasonably inferred that Beard
shut his phone off at times he did not want his location known or later
discovered. If Beard did not want his location known when defendant
provided him with Tetreault’s truck the evening before the murder, the
implication was the exchange was not for any innocent purpose. Ultimately,
the totality of the circumstances showed the defendant gave Beard the truck
for only one reason—to provide a means of transportation so Beard could
drive to Clayton’s home and kill defendant’s wife.
Even defendant’s seemingly mundane communications with his wife,
although not telling in and of themselves, provided defendant with key
information about when she was or was not at home. On September 21, he
called her to make a lunch date after her gym class, guaranteeing she would
not be home when he and Beard drove there that afternoon (A 3020). Then,
he texted her from his poker game shortly before the murder, ensuring she was
home alone (A 3689).
The timing of the murder was also exactly coincident with his poker
game, giving defendant a solid alibi. He made clear to the poker group that
he was available to play as late as they wanted, even though some of the group

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 wanted to stop earlier (A 1849). He was actually one of the last two players
to leave the game (A 1847).
When defendant went home shortly after midnight on September 29
and found his wife brutally bludgeoned to death on the kitchen floor, clad only
in a t-shirt with her face all but obliterated by the attack and with blood
spatters up and down the stairs, it is significant and telling that after he failed
to hang up the phone upon completing his 911 call, defendant can be heard
talking calmly to his daughter and asking if she saw a robber (A 3926-3928).
It is also significant that defendant’s first words to his neighbors after the
attack were “We were robbed” (A 1302). Then he returned to his house with
his neighbor, Derek Almy, who testified that he was horrified by the scene
and worried about whether the killer might still be there, while defendant did
not seem to have that concern (A 1313). Moreover, notwithstanding the
violent nature of the crime, and the fact that they were returning to a house
where the killer might still be hiding, defendant never asked Almy to bring a
gun with him, although he knew that Almy had several (A 3384-3385).
When police arrived, defendant told them he was at a poker game and
that his daughter said she had seen a robber. However, there were no apparent
signs of a robbery. Defendant gave police a timeline of his movements on

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 September 28, but omitted any mention of giving Beard the maroon truck.
When police asked if there were any disgruntled employees at work,
defendant never mentioned Beard (A 3380). It was defendant’s niece, Molly
Bourgeois, who had the wherewithal to mention Beard as a potential suspect.
Although he later told Abbe Tipton that Beard had called him at 5:00 p.m.
asking for money, and he had told him it was all at the house and that he
wouldn’t be home until the next day, he never mentioned that fact to police
either (A 3144-3145, 3351, 3386).
The day after the murder, defendant asked Laing to retrieve the money
he had set aside for purchasing a building, which was in his white Dodge Ram.
That amount was presumably one hundred thousand dollars (A 2774-2777).
However, in November of 2015, defendant told another acquaintance, Brian
Donovan, that the money was cash he always had in the truck for gambling at
casinos (A 3328). Other witnesses testified that they would never carry that
much money for gambling (A 1641-1623). Greg Miller, the host of the poker
game, someone who had frequented casinos in the last ten years, testified that
on occasion he has carried sums of cash in the amount of seventeen or eighteen
thousand dollars, but that he doesn’t like to carry that much because there is a
chance of being robbed or of “somebody trying to do something to you” (A

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 1861-1863). Miller said he would never take a hundred thousand dollars to a
poker tournament (A 1862). It was reasonable to be suspicious of defendant
for having a sum that great in his vehicle without a clear explanation as to
why.
e. Defendant provided Beard with rewards of pecuniary value.
The jury was charged that in order to convict defendant of Murder in
the First Degree, in addition to finding that the People had proven that
defendant procured the commission of his wife’s murder, they also had to find
that he procured that commission pursuant to an agreement with Beard to
commit the killing for the receipt of or in the expectation of the receipt of
anything of pecuniary value from defendant.

The trial court defined

“pecuniary” as “consisting of money or that which can be valued in money”
(A 5001). The evidence described herein provided an ample basis on which
the jury could have inferred that there was such an agreement, and that Beard
expected defendant to recompense him for the murder. At trial, defendant
moved for a trial order of dismissal twice, both times incorporating his claim
that the evidence did not show there was an agreement with, expectation from,
or payment to Beard. The court denied the motion both times (A 4519-4520,
4535, 4800-4802, 4813). On appeal, defendant renews these claims. Contrary

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 to his assertions, however, the proof presented at trial was sufficient to permit
the jury to conclude beyond a reasonable doubt that defendant offered Beard
payment in several forms, and that Beard killed Kelly Clayton in anticipation
of said payment.
Tammi Black testified that after Beard was fired on September 17,
2015, defendant was still going to pay over eight hundred dollars with a
personal check to the South Carolina DMV for Beard’s outstanding fine (A
4595, 4602). In fact, Ms. Black testified she told defendant that it was nice of
him considering that Beard had been fired (A 4602). It was especially curious
in light of the fact that two days after his termination, Beard advised Holly
Barrett that defendant just told him they had to have four hundred dollars or
they would have to move.
Although the People submit that defendant intending to pay Beard’s
fine was sufficient for the jury to find the murder was contracted for
something of pecuniary value, defendant gave Beard other items of monetary
value. Specifically, we know the defendant gave Beard a mountain bike, an
object which carries monetary value (A 1398). The mountain bike was the
instrumentality to achieve the murder, but beyond this function, Beard and his
wife used the mountain bike as a general means of transportation (A 1398).

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 In addition, we know that defendant called other businesses to find Beard a
job, and that Beard was aware of at least some of these efforts. Especially in
light of Beard’s poor work record and his former contacts with the law, having
someone like defendant vouch for his character and urge that he be hired
would have carried a high value. Additionally, the fact that Beard still had
not paid the rent as of Friday, the 25th, when he was scheduled to move out,
but was still living there until at least September 29 reflects another pecuniary
value bestowed upon Beard by defendant.
Finally, there was one hundred, thousand dollars in cash in defendant’s
truck after the murder. Defendant gave various reasons and excuses for why
the money was there and not in his home (A 2774, 2777, 3329).
It was clear from the totality of facts and circumstances that defendant
held out several pecuniary inducements and that Beard knew of them and
committed murder in exchange for them. Beard also did not work for free.
This was evidenced by the time Beard worked for Kevin Morris and
complained when he was not paid (A 3764, 4898).
There is no requirement in the law that the payment actually be
delivered. Rather, it is the expectation of receipt that is important. People v.
Arroyo, 1998 WL 1806152, at 5 (Schoharie Cty. Ct., Sept. 29, 1998). Here,

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 the proven facts led to the reasonable inference that Beard expected to be
recompensed for the murder.

There was also no evidence to support

defendant’s suggestion that perhaps Beard was in a drug induced craze and
was angry at defendant, there simply was no evidence of either.
Furthermore, defendant’s suggestion that the lack of financial records
to show a payment was critical, (Defendant’s Brief at 33), is also not
persuasive. There is no requirement that the payment be in funds visibly taken
from a bank account. As the trial court noted in Arroyo, supra:
Penal Law §125.27(1)(a)(vi) is very clear that murder in
exchange for payment is prohibited and that the payment may be
made prior to the murder, after the murder or may be merely
expected to be made. The use of the word “agreement” in the
statute does not mean that the entire body of civil contract law is
brought to bear in the jury's deliberations. The general rule in
construing a penal statute is that the words of the statute are to be
given their usual, ordinary and commonly accepted meanings.
McKinney's Statutes §271(c). “Agreement” is a word used in
common parlance and capable of being understood by the
layperson.
When considering the evidence as a whole and in the light most favorable
to the People it supports the jury’s finding that all elements of Murder in the
First Degree were met beyond a reasonable doubt. As such, the verdict was
supported by sufficient evidence. Rossey, supra.

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 4. Murder in the Second Degree
As instructed by the trial court, to find defendant guilty of Murder in
the Second Degree, the jury was required to find that the People had proved
beyond a reasonable doubt that defendant acted in concert with Beard to cause
the death of Kelley Clayton and that defendant did so with the intent to cause
the death (A 5003). Earlier in the charge, the court defined accessorial
conduct, charging according to language of Penal Law § 20.00 that when
one person engages in conduct which constitutes an offense
another person is criminally liable for such conduct when acting
with a state of mind required for the commission of that offense,
he solicits, requests, commands, importunes or intentionally aids
such person to engage in such conduct.
Intentional Murder in the Second Degree is essentially a lesser included
offense of Murder in the First Degree. People v. Miller, 6 N.Y.3d 295, 301
(2006). Here, defendant was charged as a principal for Murder in the First
Degree and an accessory for Murder in the Second Degree. The People’s
proof amply demonstrated that defendant intentionally aided Beard to commit
the murder.
In the case at bar, in order to find defendant guilty of Murder in the
Second Degree, the jury had to find that the People had proven that defendant
had worked with Michael Beard to plan Beard’s killing of Kelley Clayton and

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 had done so with the intent that she be killed. As discussed in section A(3)
above, the evidence fits together to reveal defendant’s strong motive to kill
his wife. He supplied Beard with the opportunity and means to commit the
murder, and he directed Beard and coordinated with him to carry the plot
through to its conclusion. That evidence was amply sufficient to prove
defendant guilty of Murder in the Second Degree.
Contrary to defendant’s argument on appeal that there was no evidence
that defendant had the intent to kill his wife, the proof of defendant’s intent
“flowed naturally from the evidence.” People v. LaBruna, 66 A.D.2d 300,
303 (4th Dept., 1979). Even if the evidence that defendant shared Beard’s
intent was circumstantial, the test for legal sufficiency on appellate review is
the same for both direct and circumstantial evidence. People v. Cabey, 85
N.Y.2d 417, 421 (1995). There is often no direct evidence of a defendant’s
mental state and the jury must infer intent from the surrounding circumstances
and the defendant’s actions. People v. Steinberg, 79 N.Y.2d 673, 682 (1992).
Indeed, a defendant’s intent is rarely proven “by an explicit expression or
culpability by the perpetrator. People v. Barnes, 50 N.Y.2d 375, 381 (1980).
The necessary intent needed to support a finding of accessorial liability
“may be established through the actions of the accused, based on the entire

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 series of events.” People v. Carr-El, 287 A.D.2d 731, 733 (2nd Dept., 2001)
aff. 29N.Y.2d 546 (intent can be “established from an act itself, or from the
accessory's conduct and the surrounding circumstances”); People v. Platt, 278
A.D.2d 28, 28 (1st Dept., 2000) lv. denied 96 N.Y.2d 737 (accessorial liability
may be established “by the totality of the evidence”). The issue of accessorial
liability is “one of fact for the jury.” Cabey, supra, at 421-22.
Here, the jury had ample basis to conclude that defendant acted in
concert with Beard.

The evidence taken as a whole unmistakably

demonstrated that defendant and Beard operated with a common purpose and
collective objective. Indeed, defendant devised and determined the common
purpose.
Given all of the above, the proof supported the verdict and it should be
affirmed.
B. The verdict was not against the weight of the evidence.
A weight of the evidence claim requires the reviewing court to first
determine whether acquittal would not have been unreasonable, and if so, to
weigh conflicting testimony, review any rational inferences that may be drawn
from the evidence and evaluate the strength of such conclusions to determine
whether the jury was justified in finding the defendant guilty beyond a

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 reasonable doubt. People v. Danielson, 9 N.Y.3d 342, 348 (2007); People v.
Bleakley, 69 N.Y.2d 490, 495 (1987). Such a review in the case at bar
supports a finding that the verdict was not against the weight of the evidence.
Defendant points only generally to conflicting testimony and inferences
and relies on Carter, supra., in which this Court found “too many unanswered
questions” and “weak circumstantial evidence,” such that it could not affirm
the conviction. The case at bar was different. Here, the People provided
compelling evidence of defendant’s motive for, opportunity for, and planning
of his wife’s murder. Defendant speculates that other explanations were
possible but has not pointed out any discrepancies or material gaps which
would warrant a finding that the verdict was against the weight of the
evidence.
In this case, the People’s evidence was not so unworthy of belief as to
be incredible as a matter of law. This Court may set aside the verdict only if
it appears that the jury failed to give the evidence the weight it should be
accorded. See People v. Cahill, 2 N.Y.3d 14, 58 (2003) (quoting Bleakley,
supra at 495). However, this Court must be careful in substituting its opinion
for that of the jury, as great deference is accorded to the fact finder's
opportunity to view the witnesses, hear the testimony and observe the

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 witnesses' demeanor while giving testimony. Bleakley, supra at 495; People
v. Lesiuk, 81 N.Y.2d 485, 490 (1993); People v. Mateo, 2 N.Y.3d 383, 410
(2004) cert. denied 524 U.S. 946. The jury’s verdict should not be disturbed
unless it is clearly unsupported by the record. People v. Cummings, 291
A.D.2d 454, 455 (2nd Dept., 2002) lv. denied 98N.Y.2d 636. It cannot be
said in the case at bar that the jury failed to give the evidence the weight it
should have been accorded. People v. Reome, 64 A.D.3d 1201 (4th Dept.,
2009), aff’d on other grounds, 15 N.Y.3d 188 (2010).
The defendant makes three arguments as to why the verdict was against
the weight of the evidence. See Defendant’s Brief at 40-46.
1. Defendant’s argument that this was a robbery gone wrong is
without merit and the jury properly dismissed this argument by
weighing the evidence before them.
First, defendant claims that this crime was not a murder, but rather a
robbery that did not go as planned. See Defendant’s Brief at 40-41. His
contention is that Beard, fueled with anger after having been fired and having
him and his family evicted by the defendant, went to the defendant’s unlocked
or easily accessible home to steal money from the wealthy, money-flaunting
defendant. See Defendant’s Brief at 40-41. As support for this claim, the
defendant noted that he told the police his daughter said there was a robber.

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 See Defendant’s Brief at 40-41. In addition, defendant claims the police
ignored evidence consistent with his innocence and failed to find, collect, and
forensically test potential evidence. See Defendant’s Brief at 41-42.
Initially, defense counsel’s claim that Beard was angry with the
defendant because of his firing and eviction is not supported by the evidence
in this case. Specifically, on the night of his firing, Beard texted a friend,
“ain’t mad with nobody” (A 3603). Indeed, defendant, himself, was unaware
of any animosity, as evidenced by his conversation with his neighbor, Derek
Almy, who asked him after Beards’ firing if he was worried because Beard
knew where he lived (A 1321). In response the defendant said he was not
worried and dismissed Almy’s question (A 1320, 1322). Moreover, the sheer
number of all of the contacts, whether by text messages, phone calls or
meetings, between the two after Beards’ firing does not support the conclusion
that Beard was angry with defendant. Also considering the evidence that
defendant gave Beard a bike, continued to want to pay his fines, and reached
out to his associates looking for employment for Beard, it does not follow that
there was any animosity between them (A 1398, 4595, 4602, 2902, 2703,
2954, 2956, 4404, 4405). In sum, such evidence refutes any suggestion that
Beard would be angry with defendant. To the contrary, it suggests that he

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 would be appreciative of and indebted to defendant (A 4595, 4602, 2702,
2703, 2954, 2956, 4404, 3405).
Furthermore, defense counsel’s suggestion that Beard, merely as a
robber, entered the house through an unlocked door, or by using a key on the
shelf in the garage, ignores the fact that keys to defendant’s garage and house
were found in a creek along the route where Beard likely travelled the night
of the murder (A 2347-2348, 3473-3475). Those recovered keys ensured
Beard’s access to the Clayton home on the night of the murder even if the
doors were locked. In light of those facts, it was reasonable to conclude that
defendant had given Beard the house keys for the purpose of giving him such
access.
Additionally, the People agree that defendant told the police his
daughter said there was a robber, but the 911 call 5 reveals that it was
defendant, in questioning his daughter, who first planted the notion of a
robbery in her head (A 3348, 3372, 3384, 3926-3928, 4481).

In fact,

defendant not only told police it was a robbery, but those were the first words

5

See People’s Exhibit 377, the 911 Recording.
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 out of his mouth when he entered the Almy residence (A 3348, 3372, 3384,
4481).
Finally, defendant’s claims that police failed to find, collect, and
forensically test evidence is based upon mere speculation and conjecture
about whether any evidence would have been found, and if so, what it would
or could have shown. See Defendant’s Brief at 41. However, as the Court of
Appeals has explained, a weight of the evidence analysis requires this Court
to weigh conflicting testimony, review any rational inferences that may be
drawn from the evidence, and evaluate the strength of such conclusions. See
Danielson, supra. Here, defense counsel boldly asserts, without pointing to
any trial testimony or evidence from which to infer, that had the police
examined the safe and the overturned table for forensic evidence, counsel
could have established that Beard had attempted to steal money before Kelley
Clayton was killed during an alleged burglary and attempted robbery. See
Defendant’s Brief at 41. Such a claim has no support and is belied by the
record.
As to the forensic evidence on the safe in the basement, two
experienced crime scene investigators, Senior Investigator Sucher and
Investigator Fifield, testified that the Forensic Investigation Unit did not

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 process the basement for evidence because there was no indication that
anything of evidentiary value would be found (A 2272, 3468). Yet, during
the initial walk through of the murder scene, Investigator Armstrong took
photographs and checked the safe for any trace evidence, finding none (A
3064). Subsequently, on September 30, 2015, Investigator Fifield, after
getting the combination to the safe from defense counsel, opened the safe (A
3468). Investigator Fifield only found papers and some foreign coins in the
safe (A 3468). Thus, from the evidence at trial, the only inference to be drawn
was that no robbery had taken place or was ever attempted. In fact, the only
significant amount of money found in this entire case came from the
defendant’s own truck, i.e. one hundred, thousand dollars (A 1477-1478).
Lest we forget, defendant told Kevin Morris, "I would never let Kelley have
access to that money. The only two people that have access to that safe are
myself and my mother" (A 1648). Additionally, Investigator Fifield testified
that there were no signs of a forced entry into the safe (A 3530).
Next, as to the knocked-over table in the basement stairway, and
appellate counsel’s claim that had the police examined it for evidence, they
could have found evidence that Beard had attempted to steal money from
Kelley during the burglary and attempted robbery, and killed Kelley Clayton,

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 again, appellate counsel’s assertion is nothing more than mere conjecture and
speculation. See Defendant’s Brief at 41.

The pink table was a children's

table and the fact it was overturned on the stairway to the basement was clearly
not unusual knowing the Claytons had two young children (A 3468).
Investigator Fifield saw no items of evidentiary value in the basement. There
were no blood splatters on those stairs, no traces of blood evidence, and no
markings on the floor or wall of evidentiary value (A 3468-3469).
Finally, defense counsel claimed that had the police retrieved the
partially-eaten food that had been discarded from Tetreault’s truck and
conducted forensic testing on it, they could have confirmed the theory that the
truck was used in the murder. See Defendant’s Brief at 41. For this claim,
the People direct the Court again to the Danielson case, and note that defense
counsel’s claim is once more merely conjecture and speculation. Even if this
were an appropriate claim by defense counsel, the People note that the
evidence at trial showed that the half-eaten food was thrown away by
Tetreault’s mother at a gas station two days before the police were ever
notified (A 2031, 2037). Consequently, the chances that the half-eaten food
could have been found in the gas station two days later is doubtful. Further,
the chances that anything of evidentiary value would have been found on the

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 food after it mixed with other garbage was doubtful, and the jury surely could
have made that rationalization. In sum, the weight of the credible evidence at
trial established that the half-eaten food could not have been recovered. Even
if it could have, there was no reason to believe anything of evidentiary value
would have been discovered.
Defense counsel then makes a second claim regarding Tetreault’s truck.
This time, defense counsel claims that since the police found no trace or latent
evidence, such as fingerprints in Tetreault’s truck, failed to match any tire
tracks from the scene to Tetreault’s truck, and Tetreault’s truck did not match
the description given by Mark Blandford, who rode up to the Claytons’ with
Beard, then there was nothing to connect Tetreault’s truck to the murder. See
Defendant’s Brief at 41-42. Initially, it must be noted that Tetreault’s truck
was not examined for evidence until October 2, 2015, which could have
caused evidence such as fingerprints to be lost or damaged (A 1808).
Tetreault had been driving the truck since he got it back on September 30,
2015 (A 1808). In addition, Mark Blandford testified that when he got out of
the truck after they returned to Elmira, he wiped off the interior and exterior
of the passenger side of the truck. It certainly was not unreasonable to believe
that Beard would also have wiped down his side of the truck. Based upon

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 these facts and circumstances, it was not unreasonable for the jury to rationally
infer that any potential trace or latent evidence linking Tetreault’s truck to
Beard, if any existed, may have been destroyed.
In any event, the absence of any blood evidence in the Tetreault truck
did not mean the person driving the vehicle could not have attacked Kelley
Clayton (A 2488-2491). As Investigator Michael Lostracco, of the New York
State Police Forensic Identification Unit, and whose forensic training included
substantial instruction in blood splatter evidence, testified, the absence of
blood in a vehicle would not allow him to draw an inference that someone
committed a crime or did not, and then used that vehicle (A 2488-2489). As
Lostracco explained, blood does not always transfer because it will dry or
adhere to the surface it is on (A 2490). He advised that if an individual had
dried blood on their front, the blood would not transfer to the seat of the car
unless there was "some volume [of blood] still wet" and the person laid on the
seat (A 2491).
Moreover, even though no DNA evidence was found in Tetreault’s
truck, Beard shutting off his cellphone at the time of the truck exchange at
6:08 p.m. was evidence before the jury. In fact, Beard shut off his cellphone
at several crucial times throughout this case: during the dry run up to

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 Clayton’s house with Larry Johnson, during the truck exchange, and at the
time of the murder (A 1674, 3623-3624). Moreover, from other evidence in
this case, we know the defendant had previously given Beard his own white
truck to use as part of the plan to murder Kelley Clayton (A 2396-2397, 40194020). Furthermore, it was also significant that Elise Tetreault, when she
picked up Tetreault’s truck from ServPro after the murder, noticed the seat
pushed way back, farther than when Tetreault pushed the seat back (A 2030).
Holly Barrett testified that Beard was over six feet tall (A 1411). Therefore,
someone tall had last driven the truck and the jury heard that Beard was over
six feet tall.
The defense concedes in their brief that Beard committed the murder.
The credible proof clearly revealed that the defendant provided Beard with
Tetreault’s truck at 6:10 p.m. (A 2002-2003, 2005-2007, 2306-2314, 23642370, 2733, 2758-2760, 3623-3624, 4045). The proof established that, after
Beard received the 10:53 p.m. phone call, he did not immediately leave for
the Clayton residence, but instead rode his mountain bike to the area of the
Dandy Mini Mart and then returned to his apartment by 11:09 p.m. (A 14581463, 4050-4051). Sometime thereafter he picked up Mark Blandford and
they drove to a Weston store and purchased beer (A 1498-1500). By 11:24

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 p.m., they were still in the Elmira area (A 4052). Beard powered off his phone
at 11:44 p.m., and they drove to the Clayton neighborhood on Ginnan Road
where Beard parked the truck, left Blandford behind as a lookout, and then
killed Kelley Clayton (A 3625, 1501-1502, 1505-1507, 1549, 1563-1564).
After he returned to the truck, they left for Elmira, but along the way, Beard
stopped to discard the murder weapon (A 1507, 1549). Tetreault’s truck
returned to ServPro and entered the parking lot with the headlights off at 12:55
a.m. (A 2008-2012). At 12:59 a.m., a bike left ServPro and a few minutes
later, Beard’s phone powered on at 1:12 a.m. (A 2008-2012). At the time he
was in the area of 11th Street and Horseheads Boulevard, not far from Parker
Landscaping (A4052-4053). At 1:14 a.m., Beard was home (A 4052-4054).
Investigator Wilkinson took thirty-one minutes to travel from an area
near Beard’s residence to the Weston Store and then to the Clayton residence.
A 2396-2398). He took thirty-two minutes to drive from Clayton’s residence
to ServPro, a distance of 17.5 miles (A 2395-2396, 2398-2399). It took
Sergeant Logsdon, 10-11 minutes to ride a bike from ServPro to Beard’s
apartment (A 4333-4337).
Knowing that Beard committed the murder, it is clear from the above
facts that he must have driven Tetreault’s truck to Clayton’s residence,

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 returned the truck to ServPro after killing Kelley Clayton, and then ridden a
bike home. Such facts are not simply coincidental, but instead, clear
circumstantial evidence that Beard drove Tetreault’s truck that night. The
proof of the truck exchange at 6:08 p.m. at ServPro was also strong
circumstantial evidence establishing that defendant furnished Beard with the
truck.
Defendant’s failure to even mention the truck exchange or his
interactions with Beard when providing a timeline of his activities the day
before the murder evinced his consciousness of guilt about such actions with
Beard on the 28th (A 3346-3348, 3380). The rational inferences from these
facts are that Tetreault’s truck was used in the homicide, notwithstanding the
absence of any physical evidence, including blood trace evidence in the
vehicle. Further, the only rational inferences point to defendant’s guilt, not
his innocence.
2. Defendant’s argument that there was no agreement between
defendant and Beard lacks evidentiary support.
Second, defendant claims that the People failed to prove by the weight
of the credible evidence that there was any agreement between the two for
Beard to kill Kelley Clayton and that defendant procured the killing by giving

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 or creating an expectation that he would give anything of value to Beard for
the murder. See Defendant’s Brief at 42. The People rely on the arguments
set forth in Point I(a)(3) above, to refute defendant’s claims of no credible
evidence of agreement between defendant and Beard to kill Kelley Clayton
and that defendant procured the killing through a pecuniary benefit or a
promise of a benefit to Beard.
Here, defendant claims that all of the text messages and calls from
Beard to him and ServPro, were made because Beard was anxious about
“being evicted without money to live elsewhere.” See Defendant’s Brief at
43-44. Again, the People rely on the rationale and reasoning set forth in Point
I(a)(3) above, which absolutely belies this contention that the conversation
between Beard and defendant was only about being evicted and having
nowhere to live without money. Defendant also argues that the evidence his
mother was planning to be at his house, the night of September 28th,
undermines the People’s theory that defendant planned the murder that night.
See Defendant’s Brief at 44. Overall, defendant claims that it was “absurd”
for anyone to believe that defendant, having evicted Beard and his family,
would then hire him to kill Kelley Clayton in exchange for some job leads, a

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 used bike and an expectation of old fines being paid. See Defendant’s Brief
at 43.
Here, defense counsel made note of the lack of blood on defendant on
the night of the murder, his solid alibi, and his mother coming to town, as
evidence that defendant was neither the murderer nor that he planned the
murder. First, the People agree, the defendant did not actually bludgeon
Kelley Clayton to death, as evidenced by the lack of blood on him and his
solid alibi. As conceded by defense counsel several times in his brief, and as
supported by the scientific evidence, Beard bludgeoned Kelley Clayton to
death. See Defendant’s Brief at 5, 21, 40. However, we disagree that the fact
defendant’s mother was scheduled to be at his home disproves defendant’s
planning of the murder.
Defendant’s mother, Phyllis Clayton, testified at trial. In fact, Mrs.
Clayton claimed to have fallen asleep on the afternoon of September 28, 2015,
and decided not to travel to the defendant’s home (A 4763). However, Mrs.
Clayton’s tale is brought into question by her own testimony. Phyllis Clayton
testified that although she decided not to travel that day, and even though
defendant and Kelley Clayton were allegedly expecting her, she never called
them to tell them she was not coming (A 4763-4764). It was also evident at

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 trial that from the content of the text messages between Kelley Clayton and
Abbe Tipton that night, Kelley Clayton was not expecting her mother-in-law
the next day either (A 4764). It is worth noting that at the time of trial, the
jury had an opportunity to view Mrs. Clayton, hear her testimony, and observe
her demeanor. See Bleakley, supra. Here, the jury must have chosen not to
believe Phyllis Clayton’s testimony that she was planning to be at the
defendant’s house on the night of the murder, but failed to tell her son or
daughter-in-law that she was not coming.
3. There was overwhelming proof of defendant’s motive to kill his
wife.
Third, defendant claims the People failed to provide any evidence of
that defendant had a motive to kill. See Defendant’s Brief at 44. As support
for this claim, defendant argues that the increase in the value of the life
insurance policy on his wife was done upon the suggestion of an insurance
agent to double the value at only a slight increase. See Defendant’s Brief at
44. Defendant also claims that evidence of his sexual affairs was not impeded
by his marriage and did not create a need or desire for him to end his marriage.
See Defendant’s Brief at 45.

Page 100 of 163

 The People submit that defendant’s plan to commit this murder,
although realized more fully after Beard was fired, started several months
before the actual murder. We know the defendant, as early as December 2014,
had thoughts about getting rid of his wife. As Molly Bourgeois testified,
during Christmas 2014, defendant told her that was the last Christmas they
would be together as a family (A 3447). It was also in late 2014, early 2015,
when the defendant and Kelley’s life insurance coverage doubled (A 2657).
According to P.J. Gingrich, defendant’s life insurance agent, it was defendant
who reached out to him when defendant’s and his wife’s State Farm life
insurance policies were up, and sought to increase the life insurance amounts
on his family, including increasing his wife’s coverage to one million dollars
(A 2659). Gingrich was more than defendant’s insurance agent, as he golfed
with him, and had lunch and drinks with the Claytons (A 2637-2638). In
filling out Kelley Clayton’s life insurance application, Gingrich put an extra
zero on Kelley’s income when he submitted the policy to the underwriters,
which may have falsely qualified Kelley for the additional insurance (A
2655). Considering these additional factors, it was not unreasonable for the
jury to conclude that the increase of Kelley’s life insurance was a motive for
her murder. Defendant made statements that he wanted to avoid the cost of

Page 101 of 163

 divorce. We also know that he was the primary beneficiary of his wife’s
policy and was entitled to recover one hundred percent of the one million
dollar policy upon her death (A 2650-2652).
The People submit that defendant’s extramarital affairs were also
evidence that defendant had motive to kill his wife because he had lost
affection for her and wanted a way out of the marriage that would allow him
to avoid the cost of divorce. As the Court of Appeals stated in People v.
Harris, 209 N.Y. at 77:
The rule is well established that when a husband is charged with
the murder of his wife it is competent to show his relations with
a paramour. The reason for the rule is stated to be that such
evidence tends to establish the absence of affection for the wife
and a motive for getting rid of her.
Moreover, evidence of motive must possess a “relation to the criminal
act according to known rules and principles of human conduct.” People v.
Namer, 309 N.Y. 458 (1956).
Here, there was proof at trial that defendant, who had several
extramarital affairs, had lost affection for his wife. For example, defendant
told Molly Bourgeois that not only did he not love his wife anymore, but he
did not even like her (A 3446). He told Patricia Stone that he would divorce
Kelley but she would take everything (A 2078). Such statements, combined

Page 102 of 163

 with the large number of extramarital affairs, showed the jury that defendant
had lost affection for his wife and wanted out of the marriage without a
financial loss to himself. Here, as noted above, defendant saw a means to
escape his marriage by hiring Beard to murder his wife for a potential financial
gain.
Indeed, the People submit that defense counsel’s claims are shortsighted and fail to take into account defendant’s and Beard’s planning leading
up to the murder. The credible evidence supports the People’s theory that
there were no evidence of a robbery or burglary, only evidence of murder.
In performing its analysis, the People respectfully ask this Court to
consider the weight of all of the evidence in this case, not just the few facts
highlighted by defense counsel. Based upon the foregoing, even reviewing
the evidence in a neutral light, and giving the jury great deference in having
had the opportunity to view the witnesses and assess their credibility, the
People respectfully submit that the jury properly gave the evidence the weight
it should be accorded, and the verdict must stand.
C. Conclusion
There was a mountain of evidence that defendant orchestrated the
murder of his wife by Beard. That the jury would have had to make multiple

Page 103 of 163

 inferences is not unexpected; nor does it impair the strength of their
conclusion. Reasoning from the facts necessarily entailed finding multiple
inferences, but so long as all of the jury’s inferences were based on solidly
proven facts and all inferences flowed naturally and directly from those facts,
the verdict is not flawed. The evidence must be seen as a whole, and not
artificially split into unrelated parts. People v. Moran, 246 N.Y. 100, 104
(1927).
Defendant has offered a myriad of inferences that could be drawn to
counter the People’s evidence. It is, however, insignificant that other
inferences could be drawn, so long as the jury could have rationally drawn a
guilty inference. Rossey, supra, at 699. Viewing the evidence in the light most
favorable to the People and indulging all inferences in the People’s favor, the
evidence was legally sufficient to support the guilty verdict. People v.
Conway, 6 N.Y.3d 869, 872 (2006).
Finally, this is not an appropriate case for this Court to reverse in the
interest of justice as suggested by defendant. Defendant’s Brief at 23-24. The
power to reverse in the interest of justice, pursuant to CPL § 470.15(3)(c), is
used sparingly to “vacate a conviction as to which there is a grave risk that an
innocent man has been convicted.” People v. Kidd, 76 A.D.2d 665, 668 (1st

Page 104 of 163

 Dept., 1980) (quoted in White, supra). No such risk exists in the case at bar.
People v. Gioeli, cited by defendant, is also inapposite. (People v. Gioeli, 288
A.D.2d 488 [2nd Dept., 2001]).

Here, unlike in Gioeli where the

complainant’s credibility was impeached and it was unlikely the alleged crime
occurred, the murder in this case is undisputed. Beard committed it, and a
plethora of evidence led to the rational inference that he killed defendant’s
wife pursuant to their agreement.
The People submit that after weighing any conflicting testimony,
reviewing the rational inferences to be drawn from the evidence and
evaluating the strength of such conclusions the jury was justified in find
defendant guilty beyond a reasonable doubt.

Page 105 of 163

 POINT II
DEFENDANT RECEIVED A FAIR TRIAL.
The People provided voluminous discovery and Rosario materials to
defendant before and during trial. Concededly, there was delay in providing
some of those materials. However, all delays were inadvertent or explainable,
and defendant did not at trial, and does not now on appeal, make any showing
of prejudice such as would warrant reversal. Nevertheless, he claims error
regarding several witnesses. Contrary to defendant’s claims, he received the
remedies for which he asked and was not prejudiced by any delay.
Defense counsel claims that the defendant was denied a fair trial
because the People failed to disclose discovery and Rosario material. See
Defendant’s Brief at 47. As support for this claim, defense counsel asserted
that Rosario material was untimely for the following witnesses: Kimberly
Bourgeois, Mark Blandford, Richard Flood, Rebecca White, Michael
Lostracco and Sy Ray. See Defendant’s Brief at 48. In addition, defense
counsel claims discovery violations regarding Sy Ray. See Defendant’s Brief
at 48.

Page 106 of 163

 A. Defendant’s allegations
unsubstantiated.

of

Rosario

violations

are

First, as to Rosario, as the Court of Appeals made clear in People v.
Rosario (9 N.Y.2d 286 (1961), rearg. denied 14 N.Y.2d 876), the purpose of
the rule “is to afford the defendant a fair opportunity to cross-examine the
People’s witnesses at trial. See also, People v. Poole, 48 N.Y.2d 144 (1979).
The Rosario court found that it was “persuaded that a right sense of justice
entitles the defense to examine witness’s prior statement, whether or not it
varies from his testimony on the stand.” Rosario, supra.
The Rosario rule has been codified in CPL § 240.45, which reads:
After the jury has been sworn and before the prosecution’s
opening address . . . the prosecutor shall, subject to a protective
order, make available to the defendant (a) any written or recorded
statement, including any testimony before a grand jury . . . made
by a person whom the prosecutor intends to call as a witness at
trial and which relates to the subject matter of the witness’s
testimony . . . .
When, as here, the disclosure of the material was not a complete failure
to disclose, but rather, a delay in its disclosure, reversal is not required unless
the defendant demonstrates that he has been substantially prejudiced by the
delay. See People v. Ranghelle, 69 N.Y.2d 56, 63 (1986); People v. Perez, 65
N.Y.2d 154 (1985), People v. Boykins, 134 A.D.3d 1542, 1543 (4th Dept.,

Page 107 of 163

 2015), lv. denied 27 N.Y.3d 1066; People v. Chase, 158 A.D.3d 1233, 1234
(4th Dept., 2018), lv. denied 31 N.Y.3d 1080. Here the defendant has failed
to make such a showing. People v. Walters, 124 A.D.3d 1321 (4th Dept.,
2015), lv. denied 25 N.Y.3d 1209. Defendant received all the materials before
or during trial at such time that he was able to use them at trial, and he failed
to show that the delay materially contributed to the result of the trial. People
v. Barney, 295 A.D.2d 1001, 1002 (4th Dept., 2002), lv. denied 98 N.Y.2d
166.
As noted in the definition of Rosario, it includes material “which relates
to the subject matter of the witness’s testimony” and further, that the purpose
of the rule is “to afford the defendant a fair opportunity to cross-examine the
People’s witnesses at trial. Rosario, supra.
1. Kimberly Bourgeois was not a witness for the prosecution.
It is undisputed that Kimberly Bourgeois never took the stand at trial,
and therefore any statement she may have previously made, was not Rosario
material. See CPL § 240.45. (A 623, 626). As such, any alleged Rosario
violation relating to Ms. Bourgeois is moot, as she was never a witness and
any material regarding any alleged prior statements made by her did not fall
under the Rosario rule. CPL § 240.45(1)(a).

Page 108 of 163

 2. There was no Rosario violation for the People’s disclosure of
material regarding Mark Blandford’s polygraph examination.
The People gave delayed disclosure of Rosario material regarding the
videotaped recording of Blandford’s polygraph examination (A 1525).
Nonetheless, defendant has failed to show that the delay substantially
prejudiced him. See Ranghelle, supra; Boykins, supra; Chase, supra.
Initially, defense counsel was afforded a fair opportunity to crossexamine Mr. Blandford. See Poole, supra. Defense counsel began crossexamination of Mr. Blandford at 11:45 a.m. (A 1512). Sixteen minutes later,
the trial broke for lunch (A 1524). It was over the lunch hour that defense
counsel learned of the videotaped polygraph examination of Mr. Blandford
(A 1525). As a consequence, defense counsel requested an adjournment to
review Mr. Blandford’s videotaped polygraph examination before continuing
his cross-examination (A 1525). Upon realizing the oversight, the People
promptly provided defense counsel with a copy of the videotaped recording
and the court adjourned the trial until the next day (A 1526, 1535-1536).
During the adjournment, the New York State Police delivered the polygraph
test results to defense counsel in his hotel room at 9:30 or 10:00 p.m. that night

Page 109 of 163

 (A 1538), and not the next morning as appellate counsel claimed in his brief.
See Defendant’s Brief at 53-54.
Once trial recommenced, defense counsel did not ask for a further
remedy and continued his cross-examination of Mr. Blandford for an
additional thirty-one minutes (from 9:37 a.m. through 10:08 a.m.) (A 15421561). Thus, although the People inadvertently delayed the disclosure of the
videotaped recording regarding Mr. Blandford, defense counsel was able to
effectively cross-examine him, and thus the delay did not substantially
prejudice the defendant. See Ranghelle, supra; Perez supra. Moreover, the
defendant failed to show that the delay materially contributed to the result of
the trial. Barney, supra. Here, a perusal of Mr. Blandford’s trial testimony
reveals that his testimony dealt strictly with his role as a look-out when
Michael Beard went to the Clayton home to commit the crime. In fact, when
asked on cross-examination whether Mr. Blandford knew the defendant, he
testified that he had never met him (A 1513).

Furthermore, defendant

conceded that Michael Beard murdered Kelley Clayton and this was not an
issue at trial of this defendant. See Defendant’s Brief at 5, 21, 40. Surely,
under these circumstances, any inadvertent delay in handing over Rosario

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 material regarding Mr. Blandford failed to substantially prejudice the
defendant.
3. There was no Rosario violation regarding the People’s witness
Richard Flood and the People turned over Rosario material
about Flood immediately upon receipt.
As to Richard Flood (a representative from the defendant’s insurance
company), the People did not intend to call Mr. Flood when the trial began.
In fact, Mr. Flood was not on the People’s original witness list (A 885-890).
Indeed, it was only after defense counsel attempted, through crossexamination of witnesses at trial, to develop facts of a burglary as the motive
for the murder, that the People decided to call Mr. Flood as a witness to dispel
such a claim (A 4324, 4325). During trial, defense counsel questioned Kevin
Morris, Senior Investigator Kevin Sucher, Investigators Michael Lostracco,
Daniel Armstrong, Brian Kozemko and Jason Fifield and Trooper Thomas
McDonnell about an alleged lockbox under the bed containing thousands of
dollars (A 1630, 2264-2269, 22999, 2510, 3548-3549, 3189, 3400, 3534).
Moreover, during the questioning of Senior Investigator Sucher, the following
took place:
Question:

It wouldn’t be out of the ordinary to find it. You are
on a scene where somebody has been murdered,
you have been told that-or maybe you weren’t-but

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 the police know that there was a lockbox that’s
missing or at least that had been under the bed,
you were told that there was a robbery in the
house…” (A 2298-2299).
The Court: Counsel, approach. (sidebar). I don’t know if you can
say that they know there was a lockbox under the bed.
They were told there was a lockbox under the bed,
but…. (A 2299).
Ultimately, the only information presented at trial regarding the
existence of a lockbox came from the defendant, one of the two people
involved in the planning of the murder. In fact, in chambers, the trial judge
noted that the only proof of a lockbox was that the defendant had told police
that there was a lockbox (A 4321).
Moreover, it is worth noting that defense counsel received Mr. Flood’s
information immediately after the People received the information (A 4324,
4326). Further, a review of the less than 200 pages of material handed over
to defense counsel, reveals that almost all of the insurance information was
not even Rosario material (A 4321). Seventy-three pages were photographs,
and since it was defendant’s insurance company, he should have already had
a copy of those photographs (A 4322). Many of the pages were emails;
however, some of the emails were not Mr. Flood’s and were handed over as
a courtesy (A 4322). In addition, the material was comprised of copies of

Page 112 of 163

 checks defendant had received as payment; estimates provided to defendant,
which he turned over to the insurance company; a copy of the rental lease
between defendant and his parents (also turned over by defendant to the
insurance company); and a claim summary and content (A 4322). Thus, the
only Rosario material in the delayed materials was an affidavit from Mr.
Flood, dated January 26, 2017 (A 4322).
Finally, the day Mr. Flood testified, trial testimony began at 10:12 a.m.,
the jury took a break from 11:03 a.m. through 11:16 a.m., and then took lunch
at 11:58 a.m. through 1:19 p.m. (A 4355, 4376-4377). The People called Mr.
Flood to testify at 2:07 p.m. (A 4405). Thus, ultimately, defense counsel had
almost as much time as the People to review the material, having had the time
during the break and lunch hour to review. During trial, defense counsel had
a full opportunity to cross-examine Mr. Flood (A 4415).
4. There was no Rosario violation for the People’s alleged failure
to turn over Michael Lostracco’s ID-5 report and no prejudice
to defendant resulted.
Next, as to Michael Lostracco, defense counsel claims that the alleged
failure of the People to turn over an ID-5 report containing field notes of
Investigator Lostracco, was a Rosario violation. See Defendant’s Brief at 55;
(A 2523). The People disagreed and noted for the record that all of the

Page 113 of 163

 material had been turned over (A 2689). It appears that throughout this
appeal, appellate counsel makes arguments based upon unsupported claims
made by trial counsel. The People submit that even if defense counsel did not
receive the ID-5 form containing handwritten notes regarding a key found in
the glovebox of Tetreault Tetreault’s truck, such an alleged failure did not
prejudice the defendant, as the key was never found to fit any lock, thus it had
no evidentiary value to this case (A 2579).
Furthermore, it is worth noting that after argument in chambers the next
morning, and although the People do not concede they did not turn the
information over, defense counsel agreed that he could get any information he
needed through Investigator Fifield who had not yet been called to testify. (A
2689, 2690, 3507, 3508). In fact, on cross-examination of Investigator Fifield,
defense counsel questioned him about the ID-5 form (A 3507, 3508).
B. Defendant’s allegations of discovery violations are also
unsubstantiated.
The remedies for discovery violations are entrusted to the discretion of
the court. Under CPL § 240.70 when a party fails to comply with the
discovery mandates, the court “may order such party to permit discovery of
the property not previously disclosed, grant a continuance, issue a protective

Page 114 of 163

 order, prohibit the introduction of certain evidence or the calling of certain
witnesses or take any other appropriate action. The overriding concern on
appeal is to determine whether a party has suffered undue prejudice.
In this case, none of the claimed violations of Rosario or discovery was
shown to have prejudiced the defendant, and the trial court did not abuse its
discretion in providing limited remedies. Indeed, in most instances, defendant
got the remedy he asked for, and made no further objection. Thus, any claim
on appeal that another more severe remedy should have been imposed, is
unpreserved. People v. Rogelio, 79 N.Y.2d 843, 844 (1992).
1. Under CPL § 240.20, the People had no obligation to
provide discovery of call detail records that were
introduced at trial through Rebecca White.
Rebecca White provided and testified to call detail records containing
a telephone call made from the landline at M&M Auto to Michael Beard’s
cellphone on September 28, 2015 at 12:09 p.m. (A 1941-1942).
The People submit that the telephone records were not discoverable
pursuant to CPL § 240.20, as they did not concern any physical or mental
examination or scientific test or experiment. CPL § 240.20, Thus, the People
had no obligation to provide the documents in discovery. CPL § 240.20;
compare Sackett v. Bartlett, 241 A.D.2d 97, 101-02 (3rd Dept., 1998), lv.

Page 115 of 163

 denied 92 N.Y.2d 806; contrast People v. Brown, 9 N.Y.S.3d 830 (Bronx Cty.,
2015). However, defense counsel only requested time to review the materials
with his expert. The prosecutor agreed, and there was no further objection (A
1939). When the prosecutor offered the exhibit in question, counsel had no
objection, subject to the right of recall (A 1941). Thus, any complaint on
appeal is not preserved.
2. The People properly provided all Rosario and discovery
materials concerning expert witness Sy Ray.
Finally, as to Sy Ray, appellate counsel has claimed both Rosario and
discovery material were not timely provided. Again, as to the Rosario
material, this case does not involve the complete failure to disclose Rosario
material mandating reversal (see Ranghelle, supra), but a claimed delay in
disclosure, which requires reversal only if defendant suffered substantial
prejudice as a result. See People v. Martinez, 71 N.Y.2d 937 (1988). Rosario
material must be provided at a time when it meaningfully can be used to
prepare cross-examination. People v. Mackey, 249 A.D.2d 329 (2nd Dept.,
1998), lv. denied 92 N.Y.2d 927. However, material that is not in the People’s
possession does not constitute Rosario material. People v. Robertson, 256
A.D.2d 254 (1st Dept., 1998), lv. denied 93 N.Y.2d 978.

Page 116 of 163

 First, the People provide the following timeline of events:


Sy Ray was first contacted by the New York State Police about
this case shortly before Christmas 2016 (A 488).

 On January 11, 2017, defense counsel was advised that Sy Ray
would be called as a witness at trial (A 444). That same day,
Leslie Hyman, an investigator for the defense, spoke to Sy Ray
and requested access to the TraX system. Mr. Ray spoke to Mr.
Hyman at great length about how the mapping worked and
explained the type of data that could be expected from Mr.
Ray’s company. Finally, Mr. Ray advised Mr. Hyman that if
he had any questions, to call him (A 489).
 On January 12, 2017, the day before opening statements, the
prosecutor stated on the record that he would be calling an expert
to analyze location data from several sources and show by film
or some type of animation where certain cellphones were at
particular times. The prosecutor noted that he did not yet have
a report, but was encouraging the expert to provide something
as soon as possible (A 1170-1171).

Page 117 of 163

  On January 17, 2017, Mr. Ray provided an initial report to the
Chemung County District Attorney, who in turn, provided a
copy to defense counsel that same day (A 489, 458).
 On January 18, 2017, Mr. Hyman called Mr. Ray. Mr. Hyman
wanted to know what information Mr. Ray had not yet sent (A
489). Mr. Ray advised Mr. Hyman that he, Mr. Ray, was
coming to town to do drive testing on January 19, 2017 and
asked if they could get together then (A 489).
 On January 19, 2017, Mr. Hyman called Mr. Ray, and Mr. Ray
offered to meet with Mr. Hyman. Mr. Hyman stated he was
busy and informed Mr. Ray that Mr. Ray could do the local
police department a favor and scan the area near the Elmira
Correctional Facility (A 489).
 On January 25, 2017, Mr. Ray provided his supplemental report
to the Chemung County District Attorney, who then turned it
over to defense counsel the same day (A 489, 333).
 On February 6, 2017, defense counsel filed a Motion in Limine
requesting a --Frye hearing and preclusion of Sy Ray’s testimony
as an expert witness (A 259-288).

Page 118 of 163

  The People opposed defense counsel’s motion and submitted a
Memorandum of Law in Opposition, dated February 7, 2017.
As attachments to our Memorandum, we included Sy Ray’s
initial report, Supplemental Report, Curriculum Vitae and a
newspaper article (A 289-318).
 On February 8, 2017, the court denied the request for a --Frye
hearing and ruled that testimony concerning data mapping
would be permitted, but precluded testimony concerning call
pattern analysis (A 3953).
 On February 8 and February 9, 2017, Sy Ray testified on direct
examination (A 3967-4126). The February 9 testimony lasted
an hour and a half (10:10 a.m.-11:49 a.m.), and defense counsel
had the rest of the day to prepare for cross-examination (A 40774126).
 The next day, February 10, 2017, Sy Ray was subject to six
hours of cross-examination (A 4128-4290).

Further, after

redirect by the District Attorney (A 4290-4303), Sy Ray was
subject to re-cross-examination (A 4303-4307).

Page 119 of 163

 Based upon the above, it appears that the only item not disclosed as of
February 7, 2017, was Sy Ray’s final report. It is certainly worth noting that
the information provided prior to February 6, 2017, was sufficient for defense
counsel to make a motion for preclusion. In the motion papers, and attached
Affidavit of Leslie Hyman, the defense had a clear understanding of, and
consulted their own expert, regarding Sy Ray’s ability to take telephonic data
from a number of sources, plotting that data into a computer system, which
resulted in establishing movements, over a period of time, of the mobile
devices associated with people involved in this case (A 281).
Next, once Sy Ray took the stand and testified the first day and an
additional hour and a half the second day, defense counsel had the entire
afternoon and evening to prepare for cross-examination the next day (A 4126,
4128). During the lengthy cross-examination, defense counsel demonstrated
a firm understanding of the material and tried tenaciously, but unsuccessfully,
to elicit contradictory responses from the witness (A 4128-4290).

He

definitely was consistently able to talk “Sy Ray’s language.” For example:
Q: And the next one, 2555 is at 3:58 minus four, so that’s 11:58:19,
and the coordinates are 41.95237 minus 76.9884, right?
A: …
Q: It’s within 3,638 meters, right?
…

Page 120 of 163

 Q: So, again, this is the 11:58 call, this is the 11:44 call, this is the
11:42 call and at the bottom one is irrelevant to our discussion
right now. So these are four calls, 2554, 55, 56 and 57, right?
A: They’re not calls, but that is the data.
Q: Data transmission events captured by Google at those particular
times, right?
A: Correct (A 4157).
Clearly, reviewing the cross-examination as a whole, the People submit
that it is impossible to conclude that defense counsel did not have a reasonable
time to review the Rosario and/or discovery material before cross-examining
Sy Ray (A 4128-4290). Defendant failed at trial and now on appeal to show
that he was prejudiced by any delay or that the delay materially contributed to
the outcome of the trial.
Finally, it is also worth noting that defense counsel never requested an
adjournment to allow any expert to testify. Clearly, defense counsel had been
conferring early on with Vladin Jovanovic, an expert in the field (A 3943).
Further, Leslie Hyman, another claimed expert, was available for trial.
Additionally, the judge properly denied defense counsel’s inappropriate
request to question Ray outside the presence of the jury as a “form of a
sanction” (A 4068). (Contrary to appellate counsel’s claim that trial counsel
should have been permitted to question Ray “for the court to determine the
appropriate sanction for the discovery violation,” (Defendant’s Brief at 58),

Page 121 of 163

 that was not the request made at trial.) Defense counsel also asked for time to
review the materials (A 4068) and was accordingly granted the afternoon and
evening of February 9. He made no objection.
Trial counsel also mentioned preclusion of Ray’s testimony in his
Motion in Limine, but he did not provide any argument to support that request.
Preclusion is a drastic remedy, not to be imposed unless lesser sanctions are
inadequate. People v. Jenkins, 98 N.Y.2d 280, 284 (2002). In oral argument
on February 8, it was clear that the defense’s preclusion request was based on
the claims that Ray was not qualified as an expert and that this was junk
science (A 3937-3943). The request was not grounded in the defense’s
present claims on appeal of Rosario or discovery violations. Accordingly, any
claim on appeal that the court erred in not precluding the testimony is not
preserved. Defendant got the extra time he requested and did not seek more.
He had the materials he needed to cross-examine Ray and did so vigorously
and thoroughly.
On appeal, defendant argues that preclusion was warranted under the
holding in People v. Kelley, 19 N.Y.3d 887 (2012), but this reliance is
inapposite here. In Kelley, a course of sexual conduct against a child case, it
was discovered during trial that the prosecution had not had DNA testing done

Page 122 of 163

 on a towel that the girl’s mother had turned over to police. The prosecution
then procured DNA testing, which revealed the presence of defendant’s semen
and the DNA of a female, but not the complainant’s. Here, the defense knew
before opening statements that the People intended to call an expert witness
who would take data provided by Google, Verizon, AT&T, and GPS and
through use of a computer program, pinpoint where certain phones and
activity was located. The prosecutor also noted that he did not yet have a
report and would not have it before opening statements (A 1170-1171). Thus,
unlike the situation in Kelley, there was no surprise and ignorance of the
evidence was not a defense.
Moreover, defense counsel was clearly thoroughly familiar with the
material related to Ray’s testimony by the time he cross-examined him. The
prosecution acted in good faith and provided materials as soon as possible.
Under these circumstances, it cannot be said that the trial court abused its
discretion in permitting Sy Ray to testify despite the fact that his report was
not available until mid-trial.
In sum, many of the present claims are unpreserved for review on
appeal, and as to those that are preserved, defendant has failed to show the

Page 123 of 163

 required prejudice. The trial court did not abuse its discretion and its decisions
should be affirmed.

Page 124 of 163

 POINT III
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT
DENIED DEFENDANT’S REQUEST FOR A FRYE HEARING.
The trial court did not abuse its discretion in denying defendant’s midtrial motion for a Frye hearing. Frye v United States, 293 F. 1013 (D.C. Cir.,
1923). The court found that the evidence in question did not involve a novel
scientific technique, and defendant’s claims largely concerned issues of
foundation and weight, which were properly dealt with during the trial.
Nevertheless, on appeal defendant claims that a Frye hearing was required
because the evidence involved unreliable and novel scientific technique. He
is wrong for several reasons. First, the data on which the People’s expert, Sy
Ray, relied was admitted without objection through other witnesses and
therefore any arguments as to the data underlying Sy Ray’s mapping software
are unpreserved for the appeal. Second, and even if that issue was preserved
for appeal, the technical data that Sy Ray visualizes with his software is the
kind of data that has been held to be admissible for this purpose in courts
around the country. Finally, in denying the motion for a Frye hearing, the
court was entitled to take notice of the acceptance of the data and methods, as
well as the judicially recognized separation of Frye issues from issues of

Page 125 of 163

 weight and foundation. The court had before it the arguments of both parties
before it rendered its decision, and it cannot be said as a matter of law to have
abused its discretion in denying a hearing.
To the extent the weight of Sy Ray’s testimony is concerned, his
expertise and the merit of the science underlying his conclusions are beyond
the scope of a Frye analysis. Ray merely plotted that data onto computergenerated maps and made general estimates of where the defendant’s and
Michael Beard’s phones were at certain times. Those estimates were general
location approximations in this largely rural landscape and were made in
consideration of the inaccuracies inherent in the data and the methodology.
A. Standard of Review
Whether a Frye hearing is required is a matter directed to the trial
court’s discretion. DeLong v. County of Erie, 60 N.Y.2d 296 (1983); People
v. Rivera, 167 A.D.3d 550 (1st Dept., 2018); People v. Marusich, 51 A.D.3d
1201, 1202 (3rd Dept., 2008). An appellate court reviews the trial court’s
decision for abuse of that discretion.
The law is clear, a Frye hearing is held solely to determine the
admissibility of scientific evidence at trial. Unites States v. Williams, 583
F.2d 1194 (1978), cert. denied 439 U.S. 1117; People v. Wesley, 83 N.Y.2d

Page 126 of 163

 417 (1994); People v. Middleton, 54 N.Y.2d 42 (1981). If evidence does not
involve new methods of proof or new scientific principles, then the Frye
inquiry is not necessary. State v. Hayden, 90 Wash. App. 100 (1998).
Significantly, the Frye analysis has no interest in the merit or persuasiveness
of a particular theory or technique. Rather, a proper Frye analysis involves
“counting scientists votes” rather than “verifying the soundness of a scientific
conclusion.” See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 446-447 (2006),
rearg. denied 8 N.Y.3d 828.
The People also note the limited scope of this Court’s review.
Defendant argues on appeal that this Court can review not only the complete
record of the trial proceedings, but also the record developed after the verdict.
See Defendant’s Brief, at 84-85. Defendant filed a post-verdict motion
pursuant to CPL § 330.30 seeking to set aside the guilty verdict, in part on the
ground that new evidence had been discovered since the trial concerning the
evidence provided by the People’s expert, Sy Ray (A 329-330). Although, in
determining whether a trial court ruled correctly in a motion in limine, it is
appropriate for a reviewing court to consider a retrospective view of the trial
record, it is not appropriate to consider post-verdict proceedings. In People v.
Giles, 24 N.Y.3d 1066, 1068 (2014) cert. denied 136 S. Ct. 32, the Court of

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 Appeals ruled that “CPL 330.30(1) [does] not permit defendants to expand
the record to include matters that did not ‘appear[] in the record’ prior to the
filing of the motions.” A similar rule is appropriate concerning review of
motions in limine. Clearly the trial court did not have the “newly discovered”
evidence before it when it ruled, or at any time during the trial when it could
have reversed or modified its ruling if requested to do so. Just as a CPL §
330.30 motion does not serve to preserve a question of law for review (see
People v. Padro, 75 N.Y.2d 820, 821 (1990) rearg. denied 75 N.Y.2d 1005),
a post-verdict motion should not be permitted to expand the record on which
the court’s trial rulings are reviewed. Defendant’s citations to cases involving
severance rulings and permitting appellate review of the entire trial to
determine whether an abuse of discretion occurred, are not to the contrary.
They do not deal with post-verdict proceedings, but rather are limited to trial
proceedings. Accordingly, the defendant’s submissions in his CPL § 330.30
motion, including an affidavit and report of their expert attacking the evidence
presented by the People’s expert, should not be considered in reviewing the
trial court’s exercise of discretion in denying the defendant’s motion in limine
seeking a Frye hearing.

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 B. Procedural history and defendant’s arguments on appeal
Mid-trial, defendant filed a motion seeking a Frye hearing. In the
affidavit attached thereto, Leslie Hyman, a retired New York State Police
Senior Investigator, detailed the defense objections to the admissibility of the
proposed testimony of Sy Ray. Hyman noted that he had consulted with Dr.
Vladan Jovanovic and focused on the late discovery of data related to Ray’s
proposed testimony, claimed errors in his process, and the lack of accuracy in
the underlying data. He concluded that Ray’s “analysis and manipulation of
available data is incomplete and misleading” and constituted “junk science.”
In an accompanying Memorandum of Law, defense counsel argued that Ray’s
technique was a novel one that was not generally accepted as reliable in the
scientific or technological community; that no proper foundation had been
established for the evidence; that Ray’s “conclusions rested on inherently and
statedly inaccurate data measurements;” that Ray was not qualified to present
expert testimony; and that the jury did not need an expert witness to help
interpret the data. The Memorandum also noted that Dr. Jovanovic had been
consulted and would be available to testify via Skype at a Frye hearing.

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 The People responded in a Memorandum of Law that the motion should
be denied. They argued that the defense had confused Frye issues with those
regarding foundation and weight; the claims regarding data used were
foundation issues and the remaining claims related solely to the weight to be
accorded the evidence. They argued further that the techniques and tools used
by Ray did not constitute a scientific method, procedure or technique, and thus
were not subject to Frye constraints; Ray merely used information previously
admitted into evidence to create a file that allowed for the visualization of the
data. As such it did not involve a “novel scientific technique” and did not
require a Frye hearing. They also laid out Ray’s extensive experience with
law enforcement and working with cellphone data which entitled him to
testify as an expert in this field. Finally, they argued that this was an area not
within the ordinary training and intelligence of the jury, and that Ray’s expert
testimony would be helpful to the jury.
Oral argument of the motion occurred on February 8, 2017. Defense
counsel argued that Ray’s conclusions were misleading and not accurate.
Counsel again mentioned that he had spoken to Dr. Jovanovic (A 3937-3943).
The People contended that the defense was raising foundation issues, not a
Frye issue. Ray had basically taken “the information that’s already admitted

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 into evidence here between the telephone records, the videotapes, the Google
information, the GPS information and has plotted that out on a map, a Google
map” (A 3943-3944). He suggested that if the defense wanted to make this a
battle of the experts, he should bring his expert in. The prosecutor also
countered the defense argument that this was just summation material, noting
that Ray would be pulling together the various resources in evidence to show
how they relate to each other. Especially in light of the voluminous amount
of data, this was clearly beyond the ken of the jury and would be helpful to
them (A 3945-3948). Before argument began, the court made clear that it
would not allow testimony about “the psychological effect of phone calls;”
after arguments, it ruled it would not allow testimony on the call pattern
analysis, but otherwise would allow Ray to testify without a Frye
- - hearing
concerning data mapping, which would be subject to cross-examination (A
3937, 3953). Thereafter, defense counsel put on the record the basis for his
objection to Ray’s testimony as 1) he was not qualified; 2) the testimony was
being proffered in the nature of summation; and 3) they had been “spoon-fed”
the discovery on Ray. He further objected to the use of Ray’s thumb-drive of
pictorial depictions, and asked that, if it was to be allowed, it be used for
illustrative purposes only and not for use by the jury (A 3961-3963). After

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 reviewing the timeline of disclosure, the prosecutor suggested that he would
ask Ray to make “screenshots” of certain material and that the court should
wait until the end of Ray’s testimony to see how it felt then. The court agreed
(A 3965).
On appeal, defendant claims the trial court committed reversible error
by admitting exhibits and expert testimony through Sy Ray, which included
an animation regarding locations of the defendant and Michael Beard’s
cellphone at critical times, without conducting a Frye hearing.

See

Defendant’s Brief at 73. According to the defendant, the Frye hearing would
have allowed the court to determine: (1) whether the evidence was based on
analysis which had acceptance of reliability within the relevant scientific
community, and (2) whether the methods of analysis were appropriately
applied to establish a foundation for the admission of this evidence. See
Defendant’s Brief at 73. The defendant further argues that there was no proof
that the testimony and exhibits regarding the specific locations of the
telephone devices and drive test scans, conducted sixteen months later, were
based on accepted and reliable methodologies accepted within the relevant
scientific or technical community. See Defendant’s Brief at 73-74.

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 C. The issue is not preserved for appeal to the extent it is based on
data underlying Sy Ray’s mapping tool, because all was
admitted without objection. Any Frye issue in this appeal must
be limited solely to Sy Ray’s mapping tool.
Sy Ray utilized telephone records from AT&T and Verizon, GPS,
Google Earth and Google location information, and Fleetmatics GPS tracking
information for the ServPro vehicles as source data for developing estimates
of the locations of defendant’s and Beard’s cellphones at certain times. The
source data was all admitted without objection prior to defendant’s motion for
a Frye hearing (Fleetmatics) (A 2740); (Google) (A 2198-3200, 3204, 3208);
(Verizon) (A 3213, 3217-3220, 3222, 3228); (AT&T) (A 3295-3319);
(extractions from Michael Beard’s cellphone) (A 3561-3581); (extractions for
defendant’s phone) (A 3773-3898). Thus, although defendant on appeal
questions the use of Google location data on the ground that it has not been
accepted within the relevant scientific community, he did not object to the
admission of that data or specifically to its use in evidence. He has not
preserved his argument as to that data.

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 D. Even if the issue were preserved for appeal, the cellphone and
GPS data underlying Sy Ray’s analysis has repeatedly been
found to be admissible, as it does not involve novel science.
The People assert further that a Frye hearing was unnecessary because
the use of cellphone location data and GPS data does not involve a novel
scientific procedure. In People v. Littlejohn, 112 A.D.3d 67 (2nd Dept., 2013)
Iv. denied 22N.Y.3d 1140, for example, the appellate court found that the
lower court properly denied the defendants’ request for a Frye hearing
regarding cellular phone tracking testimony proffered by the prosecution,
because it did not concern a novel scientific theory, technique or procedure
but instead, involved deductions made from cellphone site data in a manner
consistent with a generally accepted scientific process. Moreover, many
courts have recognized GPS tracking without conducting a Frye hearing. See
United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013) (courts have generally
assumed the accuracy of GPS tracking); United States v Lizarraga-Tirado, 789
F.3d 1107, 1109 (9th Cir. 2015) (suggests courts can take judicial notice of
Google Earth); Carniol v. New York City Taxi, 126 A.D.3d 409, 410-11 (1st
Dept., 2015) (no Frye hearing warranted regarding GPS evidence because it
did not concern a novel scientific theory, technique or procedure); Still v.

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 State, 917 So.2d 250, 251 (Fla. Dist. Ct. App. 2005) (OnStar system not
new or novel) cited in People v. E.H., 2018 Cal.App. Unpub. LEXIS 6005
(testimony concerning Find My iPhone App not new or novel scientific
evidence).
Here, Ray also took the raw call detail records from cellphone providers
and uploaded that information and produced a visual map of the data (A 3968).
The People submit that using cell site location information to plot points on a
map is not new or novel. The first case in New York to deal with using cell
site location information given by a provider used to track a person’s
movements was in 2011. See People v. Hall, 86 A.D.3d 450 (1st Dept., 2011),
lv. denied 19 N.Y.3d 961. Having been utilized for at least five years at the
time of trial, this Court found that it was not new or novel. See also, People
v. Wooten, 283 A.D.2d 931 (4th Dept., 2001) lv. denied 96 N.Y.2d 943. Thus,
at the time of trial in 2017, using cell site location information to plot points
on a map had been used for at least six years. Following the logic, if at five
years this Court found that this procedure was not new and novel, then surely
at six years, the procedure was not new or novel.
For instance, a Washington court held that cell site location testimony
is not novel; it is widely accepted throughout the country. Ryan W. Dumm,

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 The Admissibility of Cell Site Location Information in Washington Courts,
36 Seattle U. L. Rev. 1473, 1501-02 (2013) (“With respect to reliability,
a Frye inquiry is unnecessary.”); see also, Hill, 818 F.3d at 298, supra,
(“Historical cell-site analysis can show with sufficient reliability that a phone
was in a general area, especially in a well-populated one.

It shows

the cell sites with which the person’s cellphone connected, and the science is
well understood.”). Other courts have held the same, including: Illinois
(People v. Fountain, 2016 IL App (1st) 131474, 407 Ill. Dec. 185, 62 N.E.3d
1107); Maryland (Stevenson v. State, 222 Md. App. 118, 134, 112 A.3d 959
(2015)); and Georgia (Pullin v. State, 272 Ga. 747, 534 S.E.2d 69 (2000)
(holding that “historical cell site analysis technology “has reached a scientific
stage of verifiable certainty to be admissible.”).
Moreover, “the use of cellphone location records to determine the
general location of a cellphone has been widely accepted by numerous federal
courts. See United States v. Jones, 918 F.Supp.2d 1 (D.D.C.2013) (citations
omitted), and Stevenson v. State, 222 Md. App. 118, 134 (2015), cert. denied
443 MD 737.

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 E. No Frye hearing was warranted for Sy Ray’s mapping tool,
which merely created a visual representation of otherwise
accepted and admissible data, as it did not constitute a scientific
method, procedure, or technique, much less a “novel” one.
A Frye hearing is held solely to determine the admissibility of novel
scientific evidence at trial. Wesley, supra. If evidence does not involve new
methods of proof or new scientific principles, then the Frye inquiry is not
necessary. State v Hayden, 90 Wash. App. 100 (Wash. App. Ct. 1998).
Initially, the People submit that a Frye hearing was not necessary in this
case because the use of the cellphone location data did not involve a scientific
procedure. The mapping of cellphone location information merely aided the
jury in seeing something that was already there but that was enhanced with
the aid of visually mapping. See People v. Wooten, 283 A.D.2d 931 (4th
Dept., 2001) lv. denied, 96 N.Y.2d 943) (“the use of lumi-lite was not a
scientific procedure, the lumi-lite merely “‘aids the jury in seeing something
that was already there but that was enhanced with the aid of the lumi-lite. It
was used “much in the same manner as powder is utilized to cause latent
fingerprints to become visible for taking and analyzing”).

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 Sy Ray’s analysis does not amount to a novel scientific technique.
Rather, it is merely a visual aid that makes voluminous, and scientifically and
legally accepted technical information, comprehensible to a lay jury. To put
this in perspective, the raw data included information from two cellphones
and amounted to sixty thousand records (A 3984). Making visualization
easier, Sy Ray color-coded the information on the map using red for the
defendant’s information and blue for Beard’s information (A 3984, 3988,
3989). Prior to mapping the information, Sy Ray had no information about
the case; he allowed the records to speak for themselves (A 3985). The map
was produced in a KML file that could be used in any Google Earth program
(A 3986).

Sy Ray, upon cross-examination, stated that none of the

information he received from Verizon, AT&T or Google used to produce the
report was altered in any way; it was math (A 4140). Based upon this
testimony, the People respectfully submit that Sy Ray’s testimony did not
involve a scientific procedure or technique implicating Frye.

Rather, it

involved plotting points created from radio communications emitted from a
source (a cellphone) to a receiver (a network of cell towers)-on a map.
In People v. Fountain, (2016 IL App (1st) 131474, lv. denied, 65 N.E.3d
844 (Ill. 2006), the court determined the trial court did not err in denying

Page 138 of 163

 a Frye hearing. It held that the reading coordinates of cell sites from phone
records and plotting them on a map is not a scientific procedure or technique
implicating Frye.

See also, People v.

Williams, 2017 Il. App. (1st)

142733, lv. denied 94 N.E.3d 670 (Ill. 2018).
This entire process was not a novel scientific procedure. “Deduction,
extrapolation, drawing inferences from existing data, and analysis are not
novel methodologies and are accepted stages of the scientific process. Ratner
v McNeill-PPC, 91 A.D.3d 63, 74 (2nd Dept., 2011), quoted in Krackmalnik
v Maimonides Med Ctr, 142 A.D.3d 1143, 1144 (2nd Dept., 2016). So long
as “the thing from which the deduction is made…[is] sufficiently established
to have gained general acceptance in the particular field in which it belongs”
(Frye, supra at 1014, quoted in Parker v Mobil Oil Corp, 7 N.Y.3d 434, 447
[2006], rearg. denied 8 N.Y.3d 828), there need be no Frye hearing. As the
trial court found, Ray’s use of data to produce maps was not a novel scientific
procedure. See State v Paton, 419 S.W.3d 125, 129-30 (Mo Ct App 2013)
(plotting the coordinates of cell sites from phone records on a map is not a
scientific procedure or technique and Frye is not applicable).

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 If this court finds that the method of plotting cell site location data is a
scientific procedure, a Frye hearing was not necessary because plotting cell
site location data on a map has been widely accepted in the courts.
Here, again, the law is clear, a court need not hold a Frye hearing where
it can rely upon previous rulings in other court proceedings as an aid in
determining the admissibility of the proffered testimony. See People v.
LeGrand, 8 N.Y.3d 449 (2007). Put more concisely, a court may find a
scientific test reliable based on general acceptance as shown through judicial
opinion. See Lahey v. Kelly, 71 N.Y.2d 135 (1987).
For example, in People v. Wilson, (107 A.D.3d 919 (2nd Dept., 2013),
lv. denied 21 N.Y.3d 1047), the court held that given the longstanding
acceptance of fingerprint evidence by New York courts. See People v.
Roach, 215 N.Y. 592 (1915); People v. Burnell, 89 A.D.3d 1118 (3rd Dept.,
2011, lv. denied 18 N.Y.3d 922; People v. Wofford, 66 A.D.3d 1404 (4th
Dept., 2009), lv. denied 13 N.Y.3d 943; People v. Garcia, 299 A.D.2d 493
(4th Dept., 2002), lv. denied 99 N.Y.2d 614), the County Court properly
determined that a Frye hearing was not necessary.
In the instant matter, the trial judge stated, after the People conceded
that the “cell pattern and stress analysis” sections of Sy Ray’s initial report

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 would not be allowed in front of the jury, “the data mapping was gardenvariety cellphone stuff” (A 3937). Subsequently, the trial judge, in his
discretion, denied the defendant’s request for a Frye hearing (A 3937).
F. Frye analysis does not involve the merits of an underlying
scientific principle or procedure. The weight of such is the
province of the jury, to which this Court should defer.

Furthermore, Ray repeatedly made clear that he was providing only
estimates of phone locations. He acknowledged that the data provided by
Verizon, AT&T, and Google could not be used to achieve precise locations,
and continually evidenced a respectful awareness of the limitations of the
technology (A 3977-3980, 3984, 3992, 4025, 4028, 4039, 4043, 4045, 4047,
4156, 4157, 4162, 4163-4164, 4171, 4192-4194, 4248-4249, 4296; on crossexamination 4856-4861). Ray’s testimony thus “made the jury aware not only
of the technique’s potential pitfalls, but also of the relative imprecision of the
information he gleaned from employing it in this case. United States v Hill,
818 F.3d 289, 299 (7th Cir., 2016) (cautioning the government not to present
historical cell-site evidence without “clearly indicating the level of precision
– or imprecision-with which that particular evidence pinpoints a person’s
location at a given time.”). In the Hill case, the court stated that a cellphone

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 transmits and receives signals throughout a cellular network like a two-way
radio. Just as noted in that case, Sy Ray testified that a cellphone was nothing
more than a radio using radiofrequency to communicate with cell towers (A
3974, 3983, 3991).
In light of Ray’s repeated disclaimer of precision in his estimates of
phone locations, defendant’s reliance on United States v. Evans (892 F. Supp.
2d 949 [ND Ill 2012]) is misplaced. See Defendant’s Brief at 104. In Evans
the proposed testimony purported to show “that calls placed from Evans’
phone during the course of the conspiracy could have come from the building
where the victim was held for ransom.” Evans, supra at 951. In the case at
bar, the witness made no claim for such precision, and indeed repeatedly
explained that he could give only a general location. See also, United States
v. Machado-Erazo, 950 F. Supp. 2d 49, 57 (D.D.C., 2013) (Evans
distinguishable from cell site testimony that goes only to general location.)
Ray testified that he performed drive test scans to improve the accuracy
of his location estimates. He testified that the scans were accomplished by
driving throughout the entire area a route from Beard’s home to the victim’s
home and from there to 75 E. 5th Street (A 4106). He described the process
and equipment used. His goal was to see what a phone sees “when it decides

Page 142 of 163

 to hand off or select a primary tower.” From that he determined what towers
a phone would utilize along the route (A 4107-4108). He explained that
distance to the tower was not the determinative factor – one must understand
the area, including elevation (A 4109). On cross-examination he agreed that
other factors such as atmospherics, moisture, foliage and others were also
relevant (A 4255).
Defendant’s attack on the reliability of the method and results from the
drive scans is based in large part on Dr. Jovanovic’s report filed with the CPL
§ 330.30 motion after the verdict. See Defendant’s Brief at 93-94. As noted
earlier, such post-verdict materials should not be used to bolster his argument
on appeal that the court wrongly denied a Frye hearing. In any event, drive
tests have generally been approved, and the attacks posed by defendant go
more to weight and foundation than to Frye considerations.
Defendant’s reliance on United States v Cervantes (2015 US Dist.
LEXIS 127048, 2015 WL 5569276 [N.D. Cal Sept. 12, 2015]), is misleading.
See Defendant’s Brief at 108. After the Court denied the defense motion for
a Daubert hearing, it did conclude that because of the delay between the time
of the events in question and the field experiments conducted by the FBI,
additional foundation was necessary to establish that the witness accounted

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 for possible differences in the cellphone or antenna characteristics, reception
and wave propagation in its field test conditions as compared to those relevant
to the facts of the case. The Court gave the government the opportunity to
submit supplemental declaration addressing these foundational issues. Id. at
12. After supplemental declarations indicated that cell tower locations and
sector azimuths at the time of the crime matched those at the time of the field
experiment, the Court denied the motion to preclude the testimony.
Cervantes, 2015 US Dist LEXIS 161910, 2015 WL 7734281 (N.D. Cal.
December 1, 2015).
Defendant’s cite to State v. Phillips, 163 A.3d 230 (MD App. 2017) is
also misleading. See Defendant’s Brief at 107. To be sure, the trial court did
exclude RF signal propagation maps and related expert testimony on drive
tests. However, the State filed a request for an en banc review of that order.
The en banc panel held a hearing and memoranda were filed, after which the
Court reversed the trial court. It held that the trial court abused its discretion
by conducting a Frye-Reed hearing and excluding the drive test evidence.
Phillips v. State, 233 Md. App. 184, 195-196, 163 A.3d 230 (Ct. of Spec.
App. MD 2016). On appeal from that order, the Court of Special Appeals
held that the en banc panel lacked jurisdiction and reversed the en banc panel

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 on that ground. Id. On further review, the Maryland Court of Appeals,
expressly noting that it did not concern itself with the substance of the panel’s
decision, agreed with the court of special appeals that no appeal could be taken
to a court en banc. State v Phillips, 457 Md. 481, 179 A.3d 965 (2017). This
hardly provides clear support for appellant’s claim.
In any event, Phillips trial court exclusion of the drive test has not been
followed by any court. To the contrary, several courts have expressly held
that drive testing testimony is sufficiently reliable to form the foundation for
expert testimony “if the expert acknowledges that drive testing only produces
an approximation of a cellphone’s location and the expert adequately accounts
for elements that could affect the test’s accuracy. United States v. Morgan,
292 F. Supp. 3d 475, 485 (DC Dis Ct 2018); see also United States v. Frazier,
2016 US Dist LEXIS 126479, 2016 WL 4994956 at 6 (Dist. of Nev. 2016)
(citing numerous cases acting drive test as an accepted methodology); State v
Montanez, 185 Conn. App. 589, 619-623 (2016). In the case at bar, Ray
adequately accounted for the factors that would have impacted the accuracy
of his scans.
Additionally, it warrants repeating that in a Frye analysis, it is not the
role of the court to evaluate and appraise the merits of the scientific technique

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 under consideration. As the Court of Appeals has repeatedly counseled, a
proper Frye analysis involves “counting scientists votes” rather than
“verifying the soundness of a scientific conclusion.” See Parker v. Mobil Oil
Corp., 7 N.Y.3d 434, 446-447 (2006); Wesley, supra; LeGrand, supra; see
also, People v. Debraux, 50 Misc.3d 247 (New York Co., 2015).
Defendant’s motion seeking a Frye hearing and many of his arguments
on appeal, focus on claimed errors in Ray’s process and lack of accuracy in
the underlying data. Such considerations are more properly part of the
foundation for admission and the weight to be accorded the testimony. Such
considerations are not part of the Frye inquiry, and they should not be
improperly commingled. Wesley, supra.
Thus, experts can and do disagree about estimates of signal strength or
what factors are relevant to the accuracy of drive scans or any number of
questions related to the reliability of the specific evidence. However, these
do not impact the fundamental methodology of using the data to make
reasonable, although not precise, estimates of phone locations. See Fountain,
supra (argument that the witness’s method represented the least accurate way
of estimating a cellphone’s location goes to weight, not admissibility); Parker,
supra (questions of the specific reliability of procedures followed to generate

Page 146 of 163

 the evidence offered at trial are questions related to foundation for the
reception of the evidence, not to Frye concerns); People v. Kelly, 288 A.D.2d
695, 696 (3rd Dept., 2001) Iv. denied 97 N.Y.2d 756 (arguments concerning
the qualification of the expert witness relate to issues of foundation and weight
to be explored on voir dire or cross-examination).
Frye inquiry as to whether scientific technique is generally accepted as
reliable by scientific community is “separate and distinct” from inquiry as to
whether technique was appropriately employed in a particular case.
Arguments as to the accuracy of the procedure and its effect on the ultimate
test results go to the weight of the evidence, rather than to the question of
admissibility upon which it is based. As such, they may be addressed by
cross-examination or through the use of defense expert witnesses.

See

Wesley, supra. The People presented ample evidence of Ray’s qualifications
to testify as an expert, and the court properly accepted him as such.
Disagreements concerning how Ray carried out his testing and the reliability
of his conclusions were the subject of extensive cross-examination and
argument. The jury was, therefore, thoroughly aware of the issues.

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 G. Conclusion
The trial court did not err in denying a Frye hearing. Should this Court
disagree, the remedy is to hold the appeal in abeyance and remit the case to
the trial court for a posttrial Frye hearing. See e.g. People v. Wilson, 164
A.D.3d 1012 (3rd Dept., 2018); People v. Hilton, 140 A.D.3d 1176 (2nd
Dept., 2016).

Page 148 of 163

 POINT IV
THE TRIAL COURT DID NOT ERR BY FINDING THAT VLADAN
JOVANOVIC’S AFFIDAVIT WAS NOT NEWLY DISCOVERED
EVIDENCE.
The power to vacate a judgment upon the ground of newly discovered
evidence rests within the discretion of the trial court. People v. Hazelton, 58
A.D.2d 945 (3rd Dept., 1977). The question on appeal is whether the trial
court abused its discretion in denying the defendant’s motion. CPL § 330.30;
People v. Slaugther, 37 N.Y.2d 596 (1975); People v. Bryan, 270 A.D.2d 875
(4th Dept., 2000), lv. denied 95 N.Y.2d 904; Hazelton, supra.
The People respectfully submit that the trial court correctly denied
defendant’s motion to set aside the verdict, without a hearing, brought
pursuant to Criminal Procedure Law § 330.30(3).
CPL § 330.30(3) states:
a verdict may be set aside when new evidence has been
discovered since the trial which could not have been produced by
the defendant at the trial even with due diligence on his part and
which is of such character as to create a probability that had such
evidence been received at the trial the verdict would have been
more favorable to the defendant.
The defendant contends that the affidavit of Vladan Jovanovic,
obtained after defendant’s conviction, disclosed newly discovered evidence

Page 149 of 163

 sufficient to warrant granting a new trial, or at least a hearing on the CPL §
330.30 motion. See Defendant’s Brief at 113-133. The defendant raises the
following three claims: (1) the trial court erred by ruling that the information
in Vladan Jovanovic’s affidavit was not newly discovered; (2) the information
provided by Vladan Jovanovic could not have been produced at trial even with
due diligence; and (3) had the information provided in Vladan Jovanovic’s
affidavit been admitted at trial, the verdict probably would change if a new
trial is granted. See Defendant’s Brief at 113-133. In sum, the defendant
claims that as a consequence of the People’s late disclosure and production of
underlying materials, information, and work product of Sy Ray, the
information and report provided by Vladan Jovanovic could not have been
disclosed earlier by the exercise of due diligence. See Defendant’s Brief at
117.
The seminal case of People v. Salemi, 309 N.Y. 208 (1955) cert. denied
350 U.S. 950, sets forth the criteria for determining the sufficiency of the new
evidence as: (1) it must be of such nature as would probably change the verdict
should a new trial be granted; (2) it must have been discovered since the
previous trial; (3) it must be of such nature that it could not have been
discovered before the trial by the exercise of due diligence; (4) it must be

Page 150 of 163

 material to the issue; (5) it must not be cumulative to the former issue; and (6)
it must not be impeaching or contradictory of former evidence. These criteria
have been repeated and relied upon since the advent of the present statute.
See People v. Bailey, 144 A.D.3d 1562 (4th Dept., 2016).
To establish that evidence is newly discovered, a defendant must show
“that the evidence could not have been discovered before or during trial and
produced at trial in the exercise of due diligence by the defense. See People
v. McCullough, 275 A.D.2d 1018 (4th Dept., 2000), lv. denied 95 N.Y.2d 933;
People v. Carrier, 270 A.D.2d 800 (4th Dept., 2000) Iv. denied. 95 N.Y.2d
864. In People v. Brown, this Court held that the evidence was not in fact
newly discovered inasmuch as the defendant allegedly learned of that
evidence on the evening before summations and thus had an opportunity to
use it before the case was submitted to the jury. People v. Brown, 104 A.D.3d
1203 (4th Dept., 2013), lv. denied 21 N.Y.3d 1014. See also, People v. White,
272 A.D.2d 872 (4th Dept., 2000) Iv. denied. 95 N.Y.2d 859. Further, a
defendant must show that the new evidence would have probably, not merely
possibly resulted in a more favorable verdict to the defendant if it had been
received at trial. CPL § 330.30; People v. Rivera, 108 A.D.2d 829 (2nd Dept.,

Page 151 of 163

 1985). In this regard, evidence that does not tend to exculpate the defendant
is insufficient. People v. Wadley, 108 A.D.2d 943 (2nd Dept., 1985).
Defendant in the case at bar did not meet his burden of establishing
either that the proffered evidence was discovered since the end of the trial or
that he could not with due diligence have discovered it in time to use it at trial.
To the contrary, Jovanovic’s affidavit and report, on which the motion rested,
addressed four main areas of Sy Ray’s testimony, each of which were known
at trial and were dealt with either in the direct or cross-examination of the
People’s expert, as well as in the arguments and summations of both parties.
Furthermore, defense counsel consulted with his expert, Dr. Jovanovic, before
and during trial, and indeed considered putting him on the stand. Appellate
counsel argues that the proffered evidence was crucial for his defense, yet
significantly, as the trial court noted, no application was made during trial for
an adjournment to secure it. People v. Davis, 43 N.Y.2d 17, 28 (1977) cert.
denied 435 U.S. 988. Appellate counsel argues that a continuance request
would have been futile, since it would have required adjourning the trial for
an extended period of time – he claims it took Jovanovic “two months of
tedious work” (Defendant’s Brief at 120), to reach his conclusions. See also,
Defendant’s Brief at 119-124. That assertion is undermined by trial counsel’s

Page 152 of 163

 admission that he had been consulting with Jovanovic throughout the trial,
and that he “almost put him on the stand;” by the omission from Jovanovic’s
affidavit of any dates when he did his analysis or any claim that he was unable,
unwilling or unprepared to testify at trial; by the availability before or during
trial of all the materials used by Jovanovic; and by trial counsel’s obvious
awareness of and competence with all the issues later raised by Jovanovic in
his affidavit and report. After Ray’s testimony, the People put on six more
witnesses, the defense called ten witnesses, and there were six days until the
case was sent to the jury. Defendant has not demonstrated by a preponderance
of the evidence that Jovanovic could not have been prepared and called as a
witness within that timeframe or with a short continuance.
Whether trial counsel decided not to put Jovanovic on as a trial witness
for financial reasons or as a shrewd calculation that the expert would be more
useful in a post-verdict motion if there was a guilty verdict, it does seem clear
that it was his choice. Under these circumstances, the trial court did not abuse
its discretion by denying defendant’s CPL § 330.30 motion. Having made
this choice, defendant was not entitled to a new trial on the claim that he had
newly-discovered evidence. People v. Messina, 73 A.D.2d 899, 900 (1st
Dept., 1980). This may have been a reasonable trial strategy, but it is not the

Page 153 of 163

 basis for a granting of a new trial. People v. Backus, 129 A.D.3d 1621, 16241625 (4th Dept., 2015) Iv. denied 27 N.Y.3d 991. Thus, the evidence put forth
in support of the CPL § 330.30 motion was not newly discovered and was, or
could have been, discovered before the case was sent to the jury.
Dr. Jovanovic’s report claimed first that the source data had no
guarantee of accuracy and in fact was often inaccurate (A 354-355). This
argument was made in defendant’s motion in limine dated February 6, 2017,
by his local expert, Leslie Hyman. It was also a constant theme in Ray’s trial
testimony on both direct and cross-examination. Jovanovic claimed, for
example, that the estimates provided by Verizon, AT&T, Google and
Fleetmatics had no accuracy guarantees. Sy Ray, throughout his testimony,
gave only estimated locations prefaced with the accuracy or inaccuracy of
same. (A 3977-3980, 3984, 3992, 4025, 4028, 4039, 4043, 4045, 4047, 4156,
4157, 4162, 4163-4164, 4171, 4192-4194, 4248-4249, 4296; on crossexamination 4856-4861). As a matter of fact, Sy Ray testified about the
accuracy and inaccuracy of the Verizon, AT&T, Google estimations (A 3977,
3979, 3980, 3984, 3992). Jovanovic also asserted that the location estimations
were not intended to be used for law enforcement purposes (A 354). Again,
in his testimony, Sy Ray agreed and stated that the data gathered by the

Page 154 of 163

 cellphone companies was used as a diagnostic tool in the very competitive
cellphone industry (A 3978).
Furthermore, in his summation, defense counsel argued in detail about
the inaccuracies of the source data (A 4856-4861). This was clearly a matter
that was well-covered during trial and one on which defense counsel
demonstrated that he was well versed.
Secondly, Dr. Jovanovic questioned Ray’s presentation of the data and
concluded it was misleading (A 355-356). This claim as well was raised in
Leslie Hyman’s affidavit in support of the defense motion in limine. (See
argument of counsel).
Thirdly, Dr. Jovanovic’s affidavit detailed his concerns about the
methodology used by Sy Ray in obtaining his drive test data (A 356-358).
Ray testified at length about how he had obtained his drive scan data (A 40274028, 4098-4102, 4109-4111, 4102).

He acknowledged the problems

involved in doing a scan at a date considerably after the event (A 4028; he
noted concerns with elevation, topography, attenuation, and foliage (A 36473657). This too was an area on which defense counsel vigorously crossexamined Ray. (A 3570, 3605-06, 3652-3657). Jovanovic further attacked
Ray’s claimed assertion that certain evidence was based on search warrants

Page 155 of 163

 (A 357). Defense counsel, however had questioned Ray on this topic as well
(A 2956-2958). And, counsel addressed these issues in his summation (A
4856, 4860-4862).
Finally, Jovanovic concluded that certain conclusions reached by Ray
on the basis of his drive test data were misleading (A 358-359). His claims
involved several location estimates made by Ray. These concerns with Ray’s
testimony were also dealt with in questioning by both counsel and in
summations. (cross-examination at A 4205-4917, 4225; defense summation
at A 4852-4855).
Throughout the questioning and his summation, counsel evinced a
thorough understanding of the material. Moreover, counsel stated that he had
been aware of Jovanovic’s expertise years earlier (A 1437) and repeatedly
mentioned that he and his local expert, Leslie Hyman, had consulted or was
going to consult with Jovanovic, and even that he “almost put him on the
stand” (A 1927, 4573, 3948, 3950, 4776; motion in limine, affidavit of Leslie
Hyman). Counsel argued also that he was “very familiar with” the issues
concerning the use of data to determine a phone’s location at a particular time
because of his awareness of Jovanovic (A 1437). Furthermore, there was in
Jovanovic’s affidavit no reference to when he did his analysis or how long it

Page 156 of 163

 took him. Counsel argues that it took Jovanovic “two months of tedious work”
(Defendant’s Brief at 120), to reach his conclusions, but Jovanovic’s affidavit
makes no such claim. Counsel also argues that Jovanovic would not have been
prepared to testify at trial (Defendant’s Brief at 124), but again, Jovanovic
makes no such claim. The materials he lists as those on which he relied were
available before and during trial (A 353) The problems he raises were largely
dealt with in the direct and cross examination of Ray and addressed in defense
counsel’s summation. Clearly, the existence of Jovanovic was not newly
discovered after trial; nor was the substance of Jovanovic’s criticism of Ray’s
methodology and conclusions.
Appellate counsel argues that the proffered evidence was crucial for his
defense, yet significantly, as the trial court noted, no application was made
during trial for an adjournment to secure it. Davis, supra. Appellate counsel
argues that a continuance request would have been futile, since it would have
required adjourning the trial for an extended period of time – he claims it took
Jovanovic “two months of tedious work” (Defendant’s Brief at 120), to reach
his conclusions. See also, Defendant’s Brief at 119-124. That assertion is
undermined by trial counsel’s admission that he had been consulting with
Jovanovic throughout the trial, and that he “almost put him on the stand;” by

Page 157 of 163

 the omission from Jovanovic’s affidavit of any dates when he did his analysis
or any claim that he was unable, unwilling or unprepared to testify at trial; by
the availability before or during trial of all the materials used by Jovanovic;
and by trial counsel’s obvious awareness of and competence with all the issues
later raised by Jovanovic in his affidavit and report.
After Ray’s testimony, the People put on six more witnesses, the
defense called ten witnesses, and there were six days until the case was sent
to the jury. Defendant has not demonstrated by a preponderance of the
evidence that Jovanovic could not have been prepared and called as a witness
within that timeframe or with a short continuance. Whether trial counsel
decided not to put Jovanovic on as a trial witness for financial reasons or as a
shrewd calculation that the expert would be more useful in a post-verdict
motion if there was a guilty verdict, it does seem clear that it was his choice.
Under these circumstances, the trial court did not abuse its discretion by
denying defendant’s CPL § 330.30 motion. Having chosen to not use the
witness and evidence at trial, he was not entitled to a new trial on the claim
that he had now newly discovered that evidence. Messina, supra. This may
have been a reasonable trial strategy, but it is not the basis for a granting of a
new trial. Backus, supra.

Page 158 of 163

 Under Salemi and CPL § 330.30(3) the proffered evidence must also
be of such nature as would create a probability (not merely a possibility) that
had it been received at the trial the verdict would have been more favorable to
defendant.

Rivera, supra.

Evidence that does not tend to exculpate a

defendant is generally insufficient. Wadley, supra. Defendant did not meet
his burden of showing that a more favorable verdict was probable. Here, as
the trial court determined (A 5344), the evidence was aimed at impeaching
the testimony of Sy Ray. All of Jovanovic’s affidavit and report focused on
attacking Ray’s credibility, methodology, and conclusions, rather than
asserting new evidence.
Defendant argues that new evidence which impeaches trial evidence
may be the basis for granting a new trial where such evidence is critical to the
prosecution’s case. See Defendant’s Brief at 129. His reliance on such cases
as People v. Rensing (14 N.Y.2d 210 [1964]; Defendant’s Brief at 130-131),
is misplaced. Rensing was a death penalty case where, after trial, a key
witness for the prosecution was found to be suffering from a long-standing
mental illness. The Court of Appeals found that had the jury been made aware
of that mental illness, they might have been reluctant to attach credence or

Page 159 of 163

 weight to his testimony, thus resulting in a more favorable verdict for
defendant. Rensing at 214.
Here, the jury was aware of the problems addressed in Jovanovic’s
affidavit through direct and cross examination, as well as in the summations
of both attorneys. Furthermore, Jovanovic’s assertions focused primarily on
his view that phone location could not be precise using the data Ray utilized.
In this regard, it must be remembered that Ray repeatedly acknowledged the
problems with location data and testified that he was making only estimates.
Jovanovic would have undoubtedly testified that the imprecision was greater
than Ray acknowledged. That is what impeachment evidence does. It would
not have directly contradicted evidence of guilt; it would have weakened it.
That is merely impeachment and not the kind of evidence present in the cases
on which defendant relies. Thus, as in People v. Shilitano, 218 N.Y. 161, 170
(1916) the proffered evidence would not have “destroy[ed] the basis upon
which the judgment of conviction rests.” See also Defendant’s Brief at 129.
In Jovanovic’s report, he asserted that the drive scans performed by Sy
Ray sixteen months after the calls were made would not allow accurate
conclusions about cellphone coverage due to the difference in foliage (A 356).
In that regard, Sy Ray testified that the best drive scan would have been done

Page 160 of 163

 on the day the phone calls were made (A 4028). Hence, even though it appears
Jovanovic and Ray agree on some things, Jovanovic still claimed that,
according to his calculations, Ray’s conclusions were incorrect. Based upon
the foregoing, it is clear that Jovanovic’s testimony would only have served
to contradict or impeach Ray’s testimony for the jury. Such impeachment
evidence does not constitute newly discovered evidence. CPL § 330.30.
Accordingly, the trial court was within the scope of its discretion in
finding that the proffered evidence was “an attempt to get evidence from
Jovanovic to impeach what was presented by Sy Ray.” (A 5044). In the
context of all the circumstances in this case, it was also within the court’s
discretion to deny the CPL § 330.30 motion.
The court was also within the bounds of its discretion in reaching its
determination without first holding an evidentiary hearing.

Whether to

conduct a hearing pursuant to CPL § 330.30 is a determination that is within
the sound discretion of the trial court. People v. Windsor, 165 A.D.3d 709,
710 (2nd Dept., 2018). Iv. denied 165 A.D.3d 709. Here, defendant's motion,
on its face, was legally insufficient.

Even though Jovanovic was in

Washington, that should not have been a valid reason– Sy Ray “when he left
here from testifying went to the state of Washington.” (A 5044). Under these

Page 161 of 163

 circumstances, the trial court's exercise of its discretion to deny defendant's
motion without a hearing was completely appropriate.
Finally, based upon the foregoing, the defendant has failed to show that
the impeachment evidence would have resulted in a more favorable verdict to
the defendant had it been received at trial. CPL § 330.30; Rivera, supra.
In sum, the trial court properly denied, without a hearing, defendant’s
motion to set aside the jury verdict. The defendant has ultimately failed to
show that Jovanovic’s information could not have been produced at trial
through the exercise of due diligence. Further defendant has failed to show
that had the evidence been admitted, the verdict would have been more
favorable to the defendant. Therefore, defendant has not met his burden and
his verdict should not be set aside.

Page 162 of 163

 CONCLUSION
DEFENDANT’S JUDGMENT OF CONVICTION
SHOULD BE AFFIRMED.
Respectfully submitted,

WEEDEN A. WETMORE, ESQ.
Chemung County District Attorney
Special District Attorney for Steuben
County Attorney for Plaintiff-Respondent
Susan Rider-Ulacco, Esq.
of counsel
226 Lake Street
P.O. Box 588
Elmira, NY 14902-0588
Telephone: (607) 737-2944

Page 163 of 163

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