This offense took place in the presence of his children

The defendant, Jose Bermejo, represented by Tamara Harris, a Lawyer, was indicted in August of 2008 for raping his wife, Blanca Mizhquiri. This offense took place in the presence of his children. During the assault, Mr. Bermejo demanded sex from his wife and she refused. Mr. Bermejo then proceeded to punch, slap, bite, pull her hair, threaten her, and forcibly have sexual contact with her. Mr. Bermejo was found guilty of the offenses.

Before Mr. Bermejo was sentenced, he filed a motion with the Courts through his lawyer, Ms. Tamara Harris to set aside the guilty verdict. The Court denied the motion on July 20, 2009. On July 27, 2009 Mr. Bermejo was sentenced to 90 days in jail for Forcible Touching and one year each term on Assault and Endangering the Welfare of a child. These sentences were to be served concurrently. Mr. Bermejo asked the Court to vacate his conviction.

Mr. Bermejo advised that his wife, Blanca Mizhquiri has a history of filing false sexual assault charges against others as evidenced by the fact that she has made unfounded sexual assault charges against Maria Lema, Mr. Bermeho’s niece, Peter Boda, Ms. Mizhquiri’s daughter’s piano teacher, and two unnamed men in Equador. Mr. Bermejo stated that this evidence was known to the state, but not provided to his attorney.

Mr. Bermejo wanted the Court to set aside his conviction and give him a new trial based on a motion that he filed dated January 18, 2010, June 20, 2010 and a supplemental affidavit on December 2, 2010. Mr. Bermejo states that his conviction was illegal because the landmark case Brady v Maryland (1963) prohibited it. Mr. Bermejo claims that his counsel at his original trial caused the jury to be prejudiced against him by their actions and he was denied a fair trial.

The state of New York denies his claims on both the merit of the case and on the procedures of the trial itself. Mr. Bermejo stated that because the state did not tell his defense attorney about all of the false sexual assault allegations that his wife had made, his rep, could not properly cross examine Ms. Mizhquiri at trial. Mr. Bermejo stated that without that information, he did not receive a fair trial. Mr. Bermejo argued that this situation falls under the protection of Brady v. Maryland because the prosecution concealed the evidence.

The state argued that it is not a Brady situation in that it is not the state’s job to inform the defense attorney of a fact that Mr. Bermejo was aware of or should have reasonably been aware of.

It is the Court’s job to evaluate the issue of whether the state did not turn over information to the defense any evidence that might be relative under the Brady case. The Court must decide if Mr. Bermejo met his burden of presenting a “clear and factual record.” The Court found that Mr. Bermejo failed to provide any evidence that his allegations about his wife were factual. In fact, there was never any evidence put forward to indicate that she had ever made any false allegations against anyone in any case. The Court found that Mr. Bermejo’s allegations against his wife were contrary to the evidence which was presented and were totally unsupported.

As evidence of the alleged molestation complaint filed by his wife against Maria Lema, Mr. Bermejo gave the Court an affidavit dated January 19, 2010 that was signed by a Maria Lema which stated that she had been questioned by a New York City Police Detective concerning a complaint that accused her of molesting Ms. Mizhquiri’s children and Ms. Lema’s own child stating that the complaint was false and humiliating. The affidavit stated that the detective had decided not to arrest her.

The Judge stated that the affidavit had no substance to support it because the document was “sparse and completely devoid of particularity.” In other words, it did not have any details to support it. There were no specifics such as the dates of the accusation, questioning, or any witnesses. There was no name given for the detective who questioned her.

In fact, the prosecution presented an affidavit dated March 10, 2010 signed by Ms. Mizhquiri swearing that she had never filed any complaints against Ms. Lema and that Ms. Lema was and is her babysitter. In this case, it is Mr. Bermejo’s burden to prove sworn facts that back up his accusations and the Court found that he had not done so in this case. The Court also found that Mr. Bermejo had not bothered to have the police records presented that would either prove or disprove that a police report had ever been made.The state, however, did contact the records department of the police department and found that in fact, no police records exist of any complaint filed against Ms. Lema by Ms. Mizhquiri.

On June 20, 2010, Mr. Bermejo’s defense attorney in his reply affirmation stated that the prosecution had conceded that a police report existed and that his attorney simply did not know about it at the time of trial. At first glance, this statement would give credence to Mr. Bermejo’s accusation. The problem is that when the Court became suspicious of the fact that Mr. Bermejo had not presented the minutes of the oral argument or a copy of the motion papers for the Court to review. The judge later discovered that the attorney’s statements were either intentionally meant to mislead the Court; or carelessly done causing the Court to be misled. The judge was offended and stated that at the least these actions by the defense attorney had “undermined” Mr. Bermejo’s defense.

The Court also found that because Mr. Bermejo should have known about the complaint’s himself, if they were true, that the situation would not qualify as a Brady violation

Secondly, Mr. Bermejo claims a Brady violation in regards to the information that his wife had accused two unknown Ecuadorian men of raping her. The court discovered that Mr. Bermejo’s defense attorney had cross examined Ms. Mizhquiri while she was testifying in another trial. That trial was the case of Peter Boda, the piano teacher. During this testimony, Ms. Mizhquiri testified that she had been raped by two men in Ecuador. Later in the trial on re-direct, Ms. Mizhquiri had stated that her account of the rape in Ecuador had been true. Therefore, the information about the assault in Ecuador was known to the defense attorney and Mr. Bermejo as Ms Mizhquiri’s spouse but not to the prosecution. Under Brady, it would be required to be known by the prosecution. Therefore, the Court ruled that this situation also did not qualify as a Brady violation.

The third part of Mr. Bermejo’s claim of violations under the Brady ruling was the claim against the piano teacher. Peter Boda. In the Boda trial, Ms. Mizhquiri was only a witness and not the complainant. In fact, the Assistant District Attorney, Elizabeth Dank was the one who had first informed Ms. Mizhquiri of the allegations. ADA Dank was made aware of the complaint against Mr. Boda when Ms. Mizhquiri ‘s daughter Hikma came forward and told her. ADA Dank stated that Ms. Mizhquiri had been totally unaware of the misconduct that Hikma claimed against Mr. Boda.

In fact, the Court was again troubled by the actions of Mr. Bermejo’s defense attorney in that he seemed to deliberately portray Ms. Mizhquiri as the complainant when in fact he knew that Ms. Mizhquiri was not. Further, the defense attorney misstated incidents reporting that Ms. Mizhquiri had testified at the Boda trial that she had seen Boda touch her daughter on the lap in a sexual manner while the child was not wearing a skirt. In fact, Ms. Mizhquiri had testified that she had only seen Boda touch her daughter on the leg or lap while she was wearing pants. The Court is offended that the defense attorney had “falsely suggested” that Ms. Mizhquiri had witnessed Boda touching a naked child rather than one just wearing pants instead of a skirt.

The Court found that again, the situation was not a Brady violation because the defense knew about the situation. Further, the complainant was Hikma and not Ms. Mizhquiri.

The next issue before the Court is that Mr. Bermejo is moving to have his conviction vacated based on criminal actions that he states were committed by his trial attorney. Mr. Bermejo states that his trial attorney blackmailed him with the threat of sabotaging his trial if Mr. Bermejo did not pay him $10,000.00. Mr. Bermejo stated that he refused to pay the attorney who then prejudiced the Court against him with “harmful trial strategies.” To support this allegation, Mr. Bermejo supplied affidavits from his family members. Unfortunately, the affidavits failed to state any dates, times, or witnesses. They did not address what actions that were taken or not taken as the case may be. Without specific details or any other kind of substantiation, the Court refused to investigate the matter further. Mr. Bermejo’s claim of ineffective council was denied based on an affidavit produced by the prosecution. The affidavit produced by the prosecution was from Mr. Bermejo’s trial attorney explaining reasonably why he had used the trial strategies that he had and denying any illegal activity.

Lastly, Mr. Bermejo claims that the Court violated his rights under People v. Molineaux (1901) by producing evidence of a crime that Mr. Bermejo had not yet been charged with without a prior ruling. The prosecutor had produced evidence that Mr. Bermejo had threatened to cut open his sister-in-law’s “pregnant belly.” The Court ruled that bringing forth testimony in reference to this incident was not in violation of Molineaux because it was demonstrative of the type of behavior that Mr. Bermejo was known for.

Judge William M. Eribaum decided this case on June 17, 2011. Judge Eribaum denied Mr. Bermejo’s claims in their entirety and upheld the original conviction of Mr. Bermejo.

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