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SUBSTITUTE TEACHER'S CONVICTION IN SODOMY CASE NULLIFIED BY FLAW

An appeals court overturned a former Buffalo substitute teacher's sodomy conviction Friday, reducing his prison term by more than a decade.

The Appellate Division of State Supreme Court in Rochester also unanimously overturned Kevin Foreman's related stolen auto conviction, leaving him facing almost immediate parole.

The appellate court questioned a State Supreme Court jury's imprecise verdict in the May 1989 felony sodomy and felony stolen car convictions, but left standing a related grand larceny conviction.

Foreman, 34, is serving a 14 1/2 - to 29-year term in the case, but the appellate ruling reduced his term to two to four years.

Chrysanthe Vergos, the Buffalo Legal Aid attorney who represented Foreman for the appeal, said she challenged the lack of clarity of Foreman's indictment. She also questioned the failure of either prosecutors or State Supreme Court Justice Julian F. Kubiniec to resolve the lack of clarity during the trial.

The appellate court didn't specifically blame either the judge or prosecutors.

Foreman's 14-count indictment "never specified which count" dealt with which of two sodomy incidents the victim charged. And neither prosecutors, during their opening statement to the jury, nor the judge, in his final legal instructions to the panel, cleared up the matter, Ms. Vergos said Friday.

Foreman was found innocent of two rape charges and another sodomy count for four sexual incidents with a 30-year-old woman teacher in his Stockbridge Avenue home Oct. 30, 1988. The jury left it unclear which of the two sodomy incidents it convicted him of, the court said.

The jury rejected the woman's claim that Foreman also forced her to have intercourse twice, the court noted.

The court record in the case "is devoid of anything connecting" the verdict specifically to either of the two sodomy incidents, the five-judge panel ruled. That makes "meaningful appellate review impossible" without jeopardizing Foreman's double jeopardy rights against being tried twice for the same crime, the Rochester court said.

The attack, and Foreman's theft of the woman's car, her two automatic bank teller cards and $9, occurred after Foreman and the woman had been drinking together for several hours in his home.

The appellate court, which heard the case two months ago, reduced his felony stolen auto conviction to a misdemeanor.

The court said evidence in the case indicated Foreman stole the victim's car immediately after sodomizing her, legally linking the sodomy and stolen auto counts.
Without the felony sodomy count, the unauthorized use of another person's vehicle is only a misdemeanor, the court said.

The grand larceny count linked to the theft of the woman's bank cards and money was upheld.

Foreman's arrest in the case and the belated discovery of his felony criminal record by Buffalo public school officials, prompted a review designed to tighten the system's hiring practices.

Foreman was paroled in 1987 after serving five years of a five- to 15-year prison term for earlier attacks on two other women and an Amherst shopkeeper.

In August 1989, Kubiniec imposed the 14 1/2 - to 29-year term on the sodomy, grand larceny and stolen auto convictions.

Ms. Vergos said he is now an inmate at the state's Wende Correctional Facility. She said he is eligible for immediate parole on the remaining two- to four-year prison term he got for the grand larceny count.

District Attorney Kevin M. Dillon said his staff will review the case for possible appeal to the Court of Appeals in Albany.

Ms. Vergos said prosecutors have little hope of a successful appeal because they "conceded" before the Rochester Court that the record of the case makes it impossible to tell on which sodomy charge the jury voted to convict.

Foreman maintained his innocence and contended at his sentencing that the incident in his home bore a resemblance to the sexual relationship in the popular movie, "Fatal Attraction." He described himself as a "God-fearing man."

Foreman had worked with the victim as substitute teachers at the Buffalo Academic Challenge Academy, the former School 6, during 1987-88 and the fall of 1988.

In 1982, Foreman pleaded guilty to sex abuse, burglary and robbery charges for attacking one Buffalo woman, stealing another woman's pension check and beating up an Amherst store owner.

In 1981, a State Supreme Court jury acquitted Foreman of multiple counts of attempted murder, assault, rape and robbery in connection with the stabbing of a 34-year-old Buffalo woman.

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