Contractor with Ties to former NYPD Commissioner Gets a New Trial



Peter DiTommaso, a contractor with ties to disgraced former New York City Police Commissioner Bernard Kerik has won his appeal to the First Department, Appellate Division, and will receive a new trial unless there is another disposition reached.

Mr. DiTommaso’s conviction was overturned when the appellate court found that the trial court incorrectly allowed into evidence the grand jury testimony of a prosecution witness who was not testifying the way the District Attorney had expected.

The witness, Tim Woods, whose company, Woods Restoration, allegedly received payments from Mr. DiTommaso’s company, Interstate, for renovations it performed on Kerik’s apartment. It was alleged that these payments were hidden by being made for work on other projects. The prosecution claimed that Mr. DiTommaso paid for these renovations as a kickback to Mr. Kerik for favorable treatment in his official capacity as then New York City Correction Commissioner.

The error at the trial occurred when the Court allowed the prosecution to introduce Mr. Wood’s grand jury testimony, which was clearly favorable to the government’s case that Mr. DiTommaso lied to a Grand Jury that he paid for Mr. Kerik’s renovations. Mr. Wood testified that he could not remember what exactly happened between him and Mr. DiTommaso because he was confused about whether he was testifying from his own recollection or if his recollection had been affected due to numerous preparation sessions with the district attorney before and after his grand jury testimony. Furthermore the alleged incident happened in the year 2000, six years before his testimony in the grand jury, and another six years before the trial in 2012.

The Court allowed the admission of the grand jury testimony under the obscure, and rarely used past recollection recorded exception to the hearsay rule. Under the rule, “a memorandum of a fact known or an event observed in the past may be admitted if the witness is unable or unwilling to testify as to its contents, and otherwise competent evidence establishes that ‘the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information’ (People v Taylor, 80 NY2d 1 [1992]).”

The Appellate Court held, “the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six- year gap between the underlying events, which concluded in 2000, and Woods’s grand jury testimony in 2006.” Therefore, the government could not demonstrate that the memorandum (the grand jury testimony) contained Mr. Wood’s recollection of the events in question, or that they were fresh at the time he testified.

On this basis, the Court concluded that Mr. DiTommaso did not receive a fair trial, overturned his conviction, and sent the case back for a new trial.

As an observation, the long backlog of criminal cases in the Bronx is exemplified by the facts of this case. It is absurd that it would take six years to bring a simple perjury case to trial. Additionally, if Mr. Wood could not remember what happen in 2000 at a trial in 2012, how will he be able to remember what happened at some future trial in 2015 or beyond? I have a strong inclination that this case will never be retried, and Mr. DiTommaso will get a pass.

Read the original decision here.
People v DiTommaso



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