Speedy trail hearing in 2014 sex abuse case adjourned after rough start

Watertown Daily Times - 7/1/2017

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CANTON -- Hearings began Friday in St. Lawrence County Court to determine whether a Massena man had his right to a speedy trial violated in a 2014 sex-abuse case.

On Oct. 3, 2014, County Judge Jerome J. Richards dismissed two counts of first-degree sexual abuse against Gary P. Rousaw, 57, last known address 88 Woodlawn Ave., for what he said were violations to his right to a speedy trial.

The indictment charged that on Dec. 7, 2013, Mr. Rousaw had sexual contact with two girls under the age of 10 at his residence.

Judge Richards ruled the indictment had to be dismissed, with prejudice, because the district attorney's office was 57 days late in announcing trial readiness in the allotted 182 days, which started Dec. 14, 2013, and ended on June 13, 2014. Prosecutors announced readiness on Aug. 11, Judge Richards wrote.

A state Supreme Court judge has reversed the 2014 dismissal of two counts of first-degree sexual abuse against a Massena man by a St. Lawrence County judge.

During the start of the hearing, which was presided over by County Judge Derek P. Champagne, Assistant District Attorney Matthew L. Peabody called one witness, Mr. Rousaw's previous attorney, Edward F. Narrow.

During testimony, Mr. Narrow told Mr. Peabody that he didn't recall a Jan. 21 2014 meeting at his office with DA Mary E. Rain where he waived Mr. Rousaw's right to a speedy trial, verbally or in a written document.

Mr. Peabody presented Mr. Narrow with a one-page letter drafted from what he said was that Jan. 21, 2014 meeting, as well as an April 3, 2014 letter to DA Mary E. Rain, asking if it helped to refresh his memory as to whether he waived Mr. Rousaw's right to a speedy trial.

Mr. Narrow said it did not but offered that he would have a better recollection to what transpired if he were allowed to look over the notes for the case, which he no longer had, as he was no longer handling the case.

M. Rain had previously disputed Judge Richard's ruling that a speedy-trial waiver signed by Mr. Rousaw's attorney, with a copy provided to the defendant, was an insufficient waiver.

In the reversal, issued June 8 by Third Department Appellate Division of the state Supreme Court, Justice Eugene P. Devine cited case law and wrote that Ms. Rain "'show[ed] that there is a factual dispute in response to defendant's claims."

"Defense counsel averred, having discussed the matter with defendant, that defendant did not waive his speedy trial rights at any point during those eight months," Judge Devine wrote. He said Ms. Rain argued that prior defense counsel for Mr. Rousaw had waived speedy trial orally, in order to engage in plea negotiations.

"The People supported that claim by reference to the January 2014 letter waiving CPL 190.80 protections and, more importantly, the April 2014 letter revoking both that waiver and a speedy trial waiver," Judge Devine wrote.

"... But neither (the People) nor defendant 'conclusively' established an entitlement to success on the merits," Judge Devine wrote. "Thus, County Court erred in granting the motion without conducting a hearing, and we remit so that it may do so."

Judge Champagne adjourned the hearing Friday and ordered Mr. Rousaw's attorney, William J. Galvin, to recover Mr. Narrow's notes for Mr. Narrow to review. But he also said that he was concerned that Mr. Peabody hadn't properly prepared Mr. Narrow, as he was his witness, regarding his ability to recollect what it was that they called him to testify to.

"I just don't see why your office isn't prepared for this," Judge Champagne said.

Mr. Galvin said that Mr. Narrow's notes should be a part of the prosecution's files and said that he believed that it would be inconsistent with Mr. Narrow's practice as an attorney to make a speedy trial waiver orally and not in written form.

"The people's argument here is ridiculous," Mr. Galvin said. "I think that even though the appellate decision has the power to make this hearing happen, I think Judge Richards made the right decision."

The hearing was adjourned to July 28.

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