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DA to appeal reversal of Kuzdzal conviction and judge denies bail

The District Attorney's Office has moved to contest an Appellate court decision that reversed the conviction of Matthew Kuzdzal in the 2013 killing of his girlfriend’s 5-year-old son.

In the meantime, Kuzdzal, 29, who has been in state prison serving a 50-years-to-life sentence, will be held without bail in Erie County on charges of second degree murder and predatory sexual assault in the death of Eain Brooks, a judge ordered on Thursday. The child died Sept. 15, 2013. His skull was fractured and he also had lacerations to his body that indicated he had been sexually assaulted.

Kuzdzal had been convicted of those same charges in 2014, but the verdict was reversed in November by the Appellate Division of the Fourth Department, in a 3-2 decision. The panel ruled that, during Kuzdzal's trial in State Supreme Court, Justice Christopher J. Burns should have questioned two jurors about statements an observer claimed the two had made about the defendant, to see if there was pre-existing bias. A woman alleged that she heard the jurors refer to Kuzdzal as a "scumbag" when she passed them outside the courthouse.

When notified of the woman's allegations, Burns held a hearing and questioned the woman under oath about what she said she heard. He determined her testimony was not credible and did not discuss it with the jurors.

In reversing the verdict, the three Appellate judges were clear that, in their opinion, the evidence at trial supported the jury’s guilty verdict. Nevertheless, they wrote, the possibility of juror bias should have been explored more fully.

That decision sent the case back to Burns. During Kuzdzal's bail hearing Thursday, Assistant District Attorney Colleen Curtin Gable noted that her office has notified the Appellate Division that it is seeking leave to appeal the matter. She said it will take several weeks to learn whether the appeal can move forward, and if it does, it will take more time to file the formal appeal and have it heard by the Court of Appeals.

In the meantime, she asked that Kuzdzal remain in custody. Gable cited the lengthy criminal record Kuzdzal accumulated before he was charged with the murder, including arrests for illegal weapons possession, attempted robbery, probation violations and stalking.

She also said, "The court is well aware of the charges and well aware of the facts of the case, the strength of the case and that the strength of the case was confirmed by the Appellate."

Attorney Robert Cutting, who represented Kuzdzal during his trial, has been assigned to continue his representation. After Burns denied his request for $250,000 bail, Cutting said outside of court that he is hopeful the Appellate ruling will be upheld and the case can be retried.

"We have always maintained and we still maintain that [Kuzdzal] he is not guilty of the offenses he is charged with," Cutting said.

Not surprisingly, Acting District Attorney Michael J. Flaherty Jr. vigorously disagrees, both with Cutting and with the Appellate ruling.

"It is our opinion that Justice Burns handled the matter correctly," Flaherty said. "The judge brought the woman in and decided she was not credible, so he did not believe he had to take the extra step of bringing in the jurors to question them."

He added, regarding Kuzdzal, "The Appellate judges also found that the evidence was more than adequate and fully supported the verdict and the judge's sentence. What we have here is a procedural disagreement."

Assistant District Attorney Matthew B. Powers is handling the appeal for the DA's Office.

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