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Legal snarl in Niagara County Court could negate sex offender’s guilty plea

LOCKPORT – Niagara County Judge Matthew J. Murphy III wants to send a man to prison for 15 years for sexually assaulting a teenage girl last summer.

However, a legal tangle at last week’s sentencing could allow the defendant to withdraw his guilty plea.

Kenneth T. Mulcahy, 53, of Meadville Road, Town of Alabama, had pleaded guilty to a felony for taking pictures of the girl as he had sex with her in his former home on Jockey Road in Newfane.

He then allegedly used the photos to blackmail the girl into letting him have sex with her again a few days later, Assistant District Attorney Peter M. Wydysh said.

But last week’s sentencing was derailed over technicalities that left Mulcahy, who had been free on bail, sitting in the Niagara County Jail waiting for the wrinkles to be ironed out. Nevertheless, Murphy assured him that he will be serving a long prison sentence.

However, there’s also a chance that Mulcahy’s guilty plea could be canceled, potentially leading to a trial on the original indictment.

At first, Murphy imposed a sentence of five to 15 years, which the law calls an “indeterminate” sentence and which makes the defendant eligible for parole after serving the lower number of years. An indeterminate sentence also means that the defendant is not subject to any post-release supervision, a probationlike status that could lead to more prison time if he violates the conditions.

Wydysh told Murphy he believed that the sentence for use of a child in a sexual performance, the crime to which Mulcahy admitted, had to be “determinate” – an exact number of years, with parole possible after 85 percent of the time is served, plus post-release supervision.

After a timeout to review specifics of the law, Wydysh was proved right. Although Assistant Public Defender Michael E. Benedict asked for a 10-year sentence, Murphy then gave Mulcahy a determinate 15 years, the maximum for the crime, plus 10 years of post-release supervision.

However, no one could remember whether Murphy had told Mulcahy during the April 15 plea process that he might face post-release supervision. Judges are required to tell criminals all about their potential punishment before they plead guilty, or the plea could be legally invalid.

Murphy’s regular stenographer was on vacation last week, and no one could gain access to her files to resolve the question by referring to the April 15 transcript. The matter was held over for two weeks.

However, Wydysh said the original indictment potentially carried a sentence longer than 15 years, since it referred to two separate sexual assaults that could result in consecutive sentencing. Even if Murphy was incorrect, Mulcahy could accept the sentence, anyway, rather than risk a trial.

Murphy told Mulcahy that this was “one of the most reprehensible crimes I’ve seen in this court in many years.”

The judge said Mulcahy and his live-in girlfriend, Theresa A. Ferguson, 54, had “groomed” the 16-year-old for a sexual encounter over a period of time. They got her drunk July 18, and Ferguson held the girl’s hand to encourage her as Mulcahy assaulted her.

Ferguson, who previously was sentenced to four years behind bars, allegedly told the girl, “It’s time to be a lady now.”

Murphy told Mulcahy, “You weren’t finished yet. You decided you had to have a trophy of your lust. You took photos and tried to use those photos to blackmail this girl into silence.”

“I do apologize for my actions in this case. I wish her nothing but the best,” Mulcahy said. “My actions were unjust. … I hopefully haven’t destroyed her life. Hopefully, I haven’t seen the end of mine.”