Months after transcripts were completed from witness hearings in the case against attorney Edward Brockman, Penn Yan Justice Matthew Conlon has dismissed the case.
Following the drug overdose death of the accuser, the case against Brockman, Yates County’s former Public Defender and Penn Yan’s Village Attorney, was in doubt. He was accused of groping a teenage female client in his office in February 2016. State Police charged Brockman, 70, of Naples, with forcible touching as a misdemeanor. Prosecution of the case was complicated by the death of his accuser, later identified as Shylo Zirkle, 20, who died in September 2017.
Brooks Baker, the Steuben County District Attorney appointed as special prosecutor, said in October 2017, that with no complainant to testify in court and with a defendant’s right to face his accuser, the case became technically difficult.
A hearing of the subpoenaed testimony of Wendy Christensen, Zirkle’s mother (no relation to the reporter) was held in the spring of 2018. Baker says Christensen was one of five witnesses who gave testimony in closed hearings. The motion made by Baker was that the statements made by Zirkle to these witnesses were “excited utterances,” a legal term that could be considered an exception to hearsay, and admissible in court.
In phone interview early last week, Brockman’s defense counsel Robert Zimmerman said he received Conlon’s decision in December, stating the excited utterances did not rise above the legal threshold of hearsay, and would not be admissible. Zimmerman said he immediately responded by letter proposing an order for the dismissal of the charge. “It’s time to put this case to rest,” said Zimmerman. In a Yates County Courthouse interview last Thursday, Feb. 7, Zimmerman added he received a letter from the village court Feb. 6 dismissing the charge and sealing the record.
In a phone interview Feb.11, Baker said that without the testimony of those witnesses, he had no evidence and no way to go forward. “I knew it was a longshot. Unfortunately, the death of the victim also meant the death of the prosecution.” Baker says that from his research, the possibility of an appeal of this kind is virtually zero. “The decision was at the judge’s discretion,” said Baker. “The legal standard for the right of a defendant to confront and cross examine his accuser is very high.” Baker says Conlon did what he was supposed to do; he held hearings for those witnesses’ statements and, after a long time, made his determination. “I’m not thrilled nor in agreement with his decision, but it is at the judge’s discretion.” Baker added that he is confident the decision was made based on Conlon’s research of the law. Baker also says that once the charge was dismissed, Conlon was legally required to seal the record of Brockman’s case.
Despite the fact that Brockman is still employed by the Village of Penn Yan, the case remained in Village Court, a point that raised concerns of impartiality. At the outset, Zimmerman requested Conlon recuse himself from the case because of his prior interactions with Brockman. Conlon denied the request saying, “I believe I can be fair and impartial.” Baker states while Conlon and Brockman are both paid by the Village of Penn Yan, there is no legal control over Conlon by the village hierarchy. Conlon is supervised under the N.Y.S. Unified Court system by the Honorable Richard A. Dollinger, Acting Supreme Court Justice of Monroe County, who is responsible for all town and village justices in Cayuga, Ontario, Seneca, Wayne, and Yates Counties.