An appeals court has ordered a new trial for a Cobleskill man who was convicted of rape and sexual abuse in a 2009 trial, saying he was “deprived of the effective assistance of counsel.”
Gary M. Arnold, 51, was accused of sexual conduct with a girl under age 15 and stood trial in Schoharie County Court. Following the four-day trial, a jury returned a guilty verdict on two counts of second-degree criminal sexual act, four counts of second-degree rape and four counts of second-degree sexual abuse.
Arnold is serving a six-year state prison term at the Marcy Correctional Facility in Oneida County.
The Appellate Division of state Supreme Court ordered a new trial in a ruling Thursday in response to an appeal by Albany Attorney Terence Kindlon, who argued the verdict was against the weight of the evidence. The only evidence introduced in the case was the testimony of the alleged victim, who was 15 when the trial took place.
Kindlon was not in his office Friday and could not be reached for comment.
According to the decision, the girl in 2007 alleged Arnold began abusing her when she was 12, in 2005. But when investigators went to interview her, she recanted the accusations and said nothing happened between her and Arnold.
During the trial, Arnold’s attorney, Paul Devane of Albany, presented emails the victim wrote to a counselor in which she stated that the “whole Arnold thing is a story” that she “made up.”
Despite the victim’s recanting and then reaccusing Arnold, the Appellate Division ruled that it would be the jury’s responsibility to resolve questions of the victim’s credibility. The court rejected the contention that the conviction was against the weight of the evidence.
But the Appellate Division said Devane wasn’t tough enough on the 15-year-old girl during cross-examination.
“Even after counsel elicited responses from the victim that directly contradicted those statements in her diary, he did not attempt to impeach the victim with such prior inconsistent statements,” the court ruled.
“Critically, although the record reveals that defense counsel’s primary trial tactic was to attack the credibility of the victim, he made no attempt to cross-examine her about the statements she had made in her supporting deposition to police, which was significantly at odds with the accusations she made against [Arnold] during her trial testimony,” the decision states.
The Appellate Division decision is most critical of the closing arguments Devane offered to the jury.
It states that Devane, when speaking about sexual activity between Arnold and the accuser, told the jury it was their job to decide “whether or not the actions were consensual … or posed a threat.”
All the charges Arnold faced were based on the accuser’s age, the court states in its decision, so “such activity, if it took place at all, was criminal, and whether it was consensual or posed a threat to the victim was entirely irrelevant.”
Those statements, the court ruled, could have been seen as an admission that Arnold had sexual contact with the girl.
“Tellingly, this was the sole element the People had to prove,” the court stated. The case is being sent back to Schoharie County Court for a new trial.
Devane declined to comment on the decision Friday.
Schoharie County District Attorney James Sacket said Friday his office will review the decision, speak to the accuser and make a decision on the next step.
Categories: Schenectady County