Burglary charges against three Lockport men were dismissed on motions of grand jury prejudice after a hearing in Niagara County Court on Thursday.
Citing precedents on what does and doesn't constitute grounds for dismissal, Judge Matthew J. Murphy III agreed to drop second-degree burglary charges against co-defendants Shawn P. Filipovich, 23, of Lincoln Avenue; Nicholas Doxey Sr., 25, of Gooding Street; and Richard L. Zuehlke, 29, of John Street.
The three men had been accused of burglarizing a family member's John Street home and stealing prescription drugs April 16.
Attorneys for the men argued that Assistant District Attorney Robert F. LaDuca went off the record in front of the entire grand jury and that what he said may have prejudiced the proceedings.
Doxey had recently been released from jail in connection with the morphine-overdose death of his daughter, 13-month-old Sierra M. Doxey, in 2008. Defense attorney E. Earl Key said any discussion of his client's involvement in a previous high-profile case could have prejudiced the case.
"We just don't know what was said," Key said.
Murphy called any off-the-record conversations in a grand jury proceeding "ill-advised."
However, Murphy said, while it is mandatory to record all grand jury instructions, it does not follow that the case is automatically dismissed.
He said that the failure to record has to rise to a such a level that it would prejudice the jury and that the defense has to prove that. But he noted that Doxey's high-profile case could have been discussed, which possibly could have prejudiced the grand jury.
"Mr. LaDuca answered honestly that he doesn't recall, but we are left to speculate," Murphy said.
Murphy linked all three co-defendants together in the dismissal but said the court gives permission to the prosecution to resubmit the case within 30 days.
In other court cases:
*A Niagara Falls man who had sex with a City of Lockport girl younger than 17 was sentenced to 10 years of probation by Murphy for third-degree rape.
Roy Davenport, 27, of Cleveland Avenue, pleaded guilty July 19. He was originally charged with second-degree rape and second-degree criminal sexual act and waived an indictment to accept the plea. He could have faced up to four years in prison and 10 years of post-release supervision.
Davenport will pay a fine of $1,000 and a fee of $325 and will be classified as a sex offender. The level will be set at a hearing Oct. 13. Under the classification, he was ordered not to have contact with any children younger than 18, including family members.
"I apologize and hope one day the family [of the victim] can forgive me. Never again, it will never happen again," Davenport said.
*Matthew P. Vaughn, 21, of Military Road, Town of Niagara, was sentenced by Judge Sara Sheldon Sperrazza to four years in state prison and three years in post-release supervision for his violent attack that left a 67-year-old victim permanently blind in one eye.
Vaughn pleaded guilty to second-degree assault July 21, admitting to an Oct. 13, 2010, attack on Edwin Lagace, on 100th Street in Niagara Falls.
Lagace showed the judge the damage to his eye and said the "center of my eye was hanging out" after the attack.
"I'm completely blind and can't see out of my left eye," Lagace said, noting that he also had hearing loss, chipped teeth and broken bones that took six months to heal. "This guy came to my house and beat the living daylights out of me."
Charges against a co-defendant, Michael G. Barber, 30, of Elderberry Place, Niagara Falls, were dismissed after Vaughn said he alone attacked Lagace.
Sperrazza had agreed as part of the plea to cap the sentence and called Vaughn a hothead.
"This is a really good disposition," Sperrazza said. "You should have gotten a lot more."