Appeals court dismisses ex-detective’s conviction

Evidence presented at the 2010 trial of a now-retired city police detective was not enough to warrant convictions, an appeals court ruled Thursday. The ruling means that the two misdemeanor counts of which Sherri Barnes was found guilty are dismissed and she cannot be retried, officials said.

Barnes was accused of diverting another person’s prescription medications for her own use and committing official misconduct by flashing her badge to speed up a pharmacy transaction.

The Appellate Division of the state Supreme Court found that key elements of the charged crimes were not proven. Specifically, the court wrote that prosecutors did not prove the medication Barnes was accused of diverting was only available by prescription.

The court found that prosecutors didn’t prove that flashing her badge constituted criminal conduct, as opposed to the lesser professional misconduct.

The court also found issues with the trial itself.

Barnes consistently maintained her innocence, even at her October 2010 sentencing. She was given three years of probation, with Judge Karen Drago going against the prosecutor’s recommendation of a 60-day sentence.

Barnes’ attorney for both the trial and appeal, Paul DerOhannesian, said it was important for Barnes to press the appeal and clear her name, even in light of the minimal sentence she received.

“She was overtaken with emotion,” DerOhannesian said of his client’s reaction upon hearing the court’s ruling. “It’s something she’s waited a long time for and one we felt very deeply and strongly about.”

Handling the appeal for the Schenectady County District Attorney’s Office was Gerald Dwyer. Dwyer called the decision a well-written one that provides a clearer distinction between criminal misconduct and professional misconduct.

Barnes’ May 2010 trial on charges of criminal diversion of prescription medicine and official misconduct lasted more than three weeks.

Barnes was accused of illegally purchasing the muscle relaxant Soma from a woman named Susan Jewett and showing her badge to a pharmacist to speed up a transaction.

Prosecutors alleged that Barnes and Jewett would go to pharmacies and Jewett would fill the prescription and then give it to Barnes. Prosecutors contended Barnes had a prescription drug dependency that had been growing for several years. The acts alleged in her indictment spanned December 2008 to May 2009.

At the time of the alleged acts, Barnes was a detective in the department’s youth aid bureau. She formally retired during the jury’s deliberations with 20 years of service. She had been on leave for more than a year.

Prosecuting the case at trial was Amy Monahan of the Schenectady County District Attorney’s Office.

DerOhannesian argued that many of the witnesses in the case, including Jewett, were addicted to drugs or testified only for a benefit. Barnes was only trying to help the woman, DerOhannesian said.

Barnes and DerOhannesian also argued that Barnes never abused medication.

Part of her probation was that she undergo a substance abuse evaluation. DerOhannesian said after her sentencing that she underwent that and the evaluation found nothing.

Prosecution evidence included more than 2,600 phone calls between Barnes and her alleged drug supplier, all using Barnes’ police-issued cellphone. Prosecutors also used video and pharmacy signature records linking Barnes directly with the alleged supplier and the supplier’s medication.

The court wrote that information concerning the requirement for a prescription was an important one.

“While it may seem logical to infer that a prescription is required if one was obtained for that medication, such logic is faulty,” the court wrote. “Some medications are available either with or without a prescription.”

For someone to be convicted of criminal diversion of a prescription medication, the court wrote, it must be proved the medication required a prescription.

Pharmacists also testified that Soma was not a controlled drug. The court noted that it has since been reclassified as a narcotic drug, but wasn’t at the time of the alleged acts.

Regarding the official misconduct charge, the court found prosecutors did not meet the burden that a crime had been committed.

“While it is inappropriate and unfair for a police officer to use his or her position to receive faster service while on personal errands, the People did not present legally sufficient evidence to establish that defendant’s actions … constituted criminal conduct, as opposed to professional misconduct,” the court wrote.

The court also went deeper, noting that the trial included a “deluge of improper” evidence concerning prior alleged bad acts by Barnes. That deluge, the court wrote, would have required a new trial if the other problems did not require the case to be thrown out entirely.

Categories: Schenectady County