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Child molesting conviction overturned

An Olean man Wednesday was granted a new trial on child molestation charges after an appeals court ruled two jurors with professional experience dealing with abuse improperly influenced other jurors during the deliberations.

Timothy L. Jerge, 33, of Prince Street, had been sentenced by Cattaraugus County Judge Larry M. Himelein to seven years in prison March 14 after his convictions for second-degree sexual abuse, course of sexual conduct against a child and child endangerment. He was convicted of repeatedly molesting a girl under age 13 between 2004 and 2009 in Olean.

But the appellate court said two jurors -- a Cattaraugus County Department of Social Services caseworker and a substance abuse mental health counselor -- rendered "improper professional opinions" during the deliberations.

During the post-trial hearing last spring, two other jurors, according to the appellate court, testified that the caseworker and the counselor said the alleged young victim's inability to recall when she was molested was standard in such cases.

The appellate court majority, headed by presiding Justice Henry J. Scudder of Rochester, said that constituted offering "improper professional opinions that were not the subject of expert testimony and were not subject to cross-examination."

The majority added that the two jurors' comments were "particularly problematic because they stated not only that sexual abuse victims may delay reporting or be unable to recall specifics of the abuse" but that "based upon their professional experience (the girl) acted like a victim of sexual abuse."

Jerge has been free on appeal bail and appeals attorney Thomas Theophilos said he hopes prosecutors will either drop the case or expedite his retrial.

In its 4-1 decision, the Rochester appellate court faulted the judge as well as the two jurors in overturning Jerge's Sept. 27, 2010, conviction. The appellate court majority agreed with Theophilos that Himelein erred in rejecting his motion to overturn the verdict because of the prejudicial comments made by the two jurors.

Dissenting Justice Eugene M. Fahey said that while he concurred on the dismissal of the sexual abuse conviction, he felt Cattaraugus County District Attorney Lori Pettit Rieman should be given a chance to re-present the charges to another county grand jury for possible indictment. Rieman could not be reached to comment on whether she will ask the Rochester tribunal to reconsider the case or take it directly to the state's high court in Albany for further review.


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