Offender fights ruling

See court decision HERE

9-3-2014 New York:

A level two sex offender, who was sentenced to five years' probation in January 2012 after being convicted of not reporting his address, was in State Supreme Court on Tuesday to argue that the failure to report conviction should be thrown out.

Roger L. Hueber, 51, 325 Ferry Ave., Niagara Falls, was granted the hearing at the beginning of the year, his current attorney, Parker R. MacKay, said. Known as a 440 hearing, such a proceeding determines whether a conviction should be vacated and a sentence set aside. But, those hearings are rarely granted, MacKay said.

"Most of them are dismissed," he said.

State Supreme Court Judge Richard C. Koch Sr., who found Hueber guilty of the felony charge in 2011, oversaw Tuesday's proceeding.

Hueber claimed that he was given ineffective counsel by several public defenders, leading to him not knowing about or testifying at his grand jury indictment hearing in September 2010, as well as not testifying at his trial in June 2011.

MacKay said there were "gaps created" in Hueber's ability to mount a defense against the charge because he was represented by several different attorneys during the course of proceedings.

"It appears that there was a large breakdown in the system," MacKay said.

Hueber was indicted in 2010 on charges that he did not register his home address, which is required under New York state law for level two sex offenders. At the time, authorities said he reported his home address as being on 12th Street in the City of Niagara Falls while he actually lived somewhere else.

According to Hueber, he was offered an initial plea deal from the district attorney's office through his court-appointed attorney, James Faso on July 19. Hueber said he turned down the plea in order to proceed with a trial.

Hueber said that Faso may have told him that there may be a grand jury indictment hearing at the time, but never notified him when it would be or that he could testify on his own behalf at the hearing.

"I was never aware of a grand jury hearing being held on me," he said during testimony.

Under the impression that his next court date was on Sept. 21 in the City of Niagara Falls, or that he would be notified of an indictment hearing, Hueber said he tried to contact Faso several times to see what the next step in the case would be.

"I was unsuccessful in that," he said. "I never got no callbacks from him."

Faso dropped off of the case because of a conflict of interest. At the time, Faso worked with the Niagara County Conflicts and Assigned Counsel Office.

According to Jean Caligiuri, confidential secretary at the office, the office had a conflict with Hueber because there was an assistant district attorney working in the conflict office.

"If one of our attorneys has a conflict, the whole office has a conflict," she said during testimony.

On Sept. 16, 2010, Hueber said he was arraigned on the charge, in absentia, after he was indicted by the grand jury.

"At the time, I was unaware that I was indicted," he said. "I was unaware that I even had a court date or I would have been there."

Missing the arraignment hearing led to a bench warrant being issued for Hueber, who was taken into custody by the Niagara County Sheriff's Office while preparing to appear in the City of Niagara Falls Court on Sept. 21.

"I was shaving in my bathroom when I heard a knock at my door," he said. "Sheriff investigators arrested me and took me to jail and I appeared in court later that day."

Speaking with a different attorney on that day in Niagara County Court, Hueber said he explained his situation to an attorney named "Mr. White," who he never saw again.

On Oct. 5, Hueber met with another public defender, Angelo Musitano, who represented him during the June 2011 non-jury trial. Hueber believed that he and his wife were going to testify, he said. Musitano recommended to Hueber to proceed with the trial with stipulated facts, which are facts in the case that both parties agree upon. Hueber still believed he would be able to testify on his own behalf, he said.

"It wasn't until I noticed that the trial was winding down or coming to a close that I asked Mr. Musitano... am I going to get a chance to get up there and testify on my behalf?," he said. "He said that at that point in time, you can't do it."

MacKay asked Hueber what his testimony would have been had he been able to testify at either the grand jury indictment hearing or his trial.

"My testimony would have been that the residence on 12th Street was my residence, it's where I stayed, where I received my mail, that's where I had a lease for," he said. "It was my legal residence and that's where I lived."

Hueber was placed on the sex offender registry after being convicted in 2006 with having several sexual encounters with teenage girls while living in Lockport. He was sentenced to serve 1 1/3 to four years in prison on the conviction.

His girlfriend at the time, Sheryl Rucci, went missing on the night of Aug. 9, 2005. She was also indicted on sexual abuse charges and was supposed to testify against Hueber.

Assistant District Attorney Cheryl L. Nichols represented the district attorney's office. She declined to comment on the case.

The hearing will continue at 2 p.m. Oct. 1 in State Supreme Court, with Faso and Musitano expected to testify. ..Source.. by Michael Canfield