Sean M. Vickers' conviction for sodomy and criminal sexual acts against minors has been reversed by an Appellate Court that objected to changes made in the charges before the case went to a jury. One conviction, sexual abuse in the first degree, was allowed to stand.
Vickers, 47, was found guilty in Genesee County in 2014 of sexually abusing five boys and sentenced to 50 years in prison.
After that conviction, he pleaded guilty in Niagara County to sexually abusing three of those boys in that jurisdiction, and was sentenced to 20 years in prison. That conviction was independent of the Genesee case and is unaffected by the ruling.
The judges of the Appellate Division, Fourth Department reversed the convictions without prejudice, which means the Genesee County District Attorney’s Office can present the evidence again to a grand jury for consideration. The judges also wrote in their decision that the guilty verdicts were supported by the evidence.
In a unanimous decision, the judges ruled that prosecutors erred during the trial when, after all evidence was presented, they asked for and were granted a motion to change several counts in the indictment against Vickers.
The judge agreed to replace two counts of course of sexual conduct against a child in the first degree with two counts of sodomy in the first degree, according to the appellate ruling. The judge also replaced two counts of predatory sexual assault against a child with two counts of criminal sexual act in the first degree.
Vickers was convicted on all counts.
However, the Appellate judges said indictments cannot be amended after the fact in any way that does not reflect the evidence that was presented to it.
In this case, indictments alleging ongoing and repeated sexual acts were replaced with sodomy charges that refer to single sexual acts.
The court maintained that every defendant “has a fundamental and nonwaivable right to be tried only on the crimes charged’ ”
District Attorney Lawrence Friedman said he disagrees with the appellate ruling.
“Our intention is to seek leave to appeal the decision" to the Court of Appeals, Friedman said.
He added that, should the reversal be upheld, his office would take the case back to a grand jury for a new indictment.
The appeal was filed on Vickers’s behalf by attorney Benjamin L. Nelson of the Legal Aid Bureau of Buffalo. Nelson said he believes the ruling will be upheld and that the case will have to be reindicted to move forward again.
According to Nelson, the decision to change the charges after testimony had concluded but before the jury began deliberations in the original trial was unfair to Vickers. Attorneys built a defense based on the charges the prosecution was trying to prove, not the charges that eventually were considered.
He pointed out that a “course of conduct” charge does not have to be particularly precise, but it does have to be recurring within a specific time frame. “The district attorney wanted to change them to a single offense, and it was allowed,” he said.
Nelson also noted that the ruling has no immediate effect on Vickers’s status.
“He still has a seven year sentence (from Genesee County,) and this has no effect on Niagara County,” Nelson said.
Judge Robert C. Noonan, sentenced Vickers’ to 107 years in prison. By law, that sentence was converted to the maximum possible of 50 years in prison.
In a related case, Vickers's brother David Vickers was convicted in federal court of sexually abusing the same boys, plus one other.