PLATTSBURGH — An appeals court has vacated the plea of a Dannemora man who had been serving 25 years to life in prison for predatory sexual assault against a child.
That doesn't mean Kenneth Brassard Jr. will go free.
"The decision had nothing to do with the grand jury indictment," said Clinton County Assistant District Attorney Domenica Padula, who, with ADA Jaimie Douthat, prosecuted the case in 2015.
"As it stands right now, we are back to the point where the grand jury indicted him.
"The charge still stands."
Brassard and his wife, Shin Ping Brassard, were sentenced to state prison in May 2016 for sexually abusing the same child.
Mr. Brassard, a Dannemora town councilor at the time of his arrest, admitted guilt to first-degree predatory sexual assault against a child, a felony, in a plea agreement.
He had been charged with promoting a sexual performance by a child under the age of 17 and second-degree criminal sex act, both felonies, after a search warrant executed at his home on Route 374 had yielded evidence in the form of computer and recording equipment, State Police said earlier.
Mrs. Brassard, who pleaded guilty to first-degree sexual abuse, had also been charged with first-degree rape, second-degree criminal sex act and promoting a sexual performance by a child under the age of 17.
She was sentenced to seven years in prison, 10 years of post-release supervision, payment of a $1,000 sex victim fee and a Sex Offender Registration fee, and she was assessed fines.
Mrs. Brassard remains incarcerated at Albion Correctional Facility, a medium-security prison in Orleans County.
The earliest date she can be released is Dec. 11, 2021; if she fails to win parole at a hearing to take place sometime in October of that year, she would serve her full term, which ends Dec. 11, 2022.
'CAST DOUBT ON GUILT'
The State Appellate Division, Third Department's decision on her husband was handed down Nov. 21; he was released from state prison then arrested again on Nov. 30.
In Clinton County Court on Wednesday, Judge Keith Bruno ordered him returned to Clinton County Jail without bail.
The matter comes down to a statement he made at his sentencing — he said his victim was 13, not 12 when he began perpetrating the sexual abuse, the appeals court said.
"Such statement by defendant negated the element of predatory sexual assault against a child in the first degree that requires that the victim be under the age of 13," the ruling states.
"Notwithstanding defendant's statement, County Court did not make any further inquiry or give (the) defendant an opportunity to withdraw his plea prior to proceeding to sentencing.
"... we find that a statement made by defendant at sentencing cast doubt upon his guilt and, therefore, triggered 'the narrow exception to the preservation requirement and (imposed) a duty upon County Court 'to inquire further to ensure that defendant's guilty plea (was) knowing and voluntary.'"
A defendant's statements "that negate an element of the crime to which a plea has been entered . . . or otherwise suggest an involuntary plea (requires) the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea."
COURSE OF CONDUCT
"We disagree," Padula said of the finding.
The DA's Office is both looking at appeal options and continuing "negotiations with the defendant."
In the plea agreement Mr. Brassard accepted he admitted to the charge of first-degree predatory sexual assault, Padula said.
It was based on a course of conduct, she explained, which means it was required to have included a certain number of acts during a time frame of more than three months before a child turns 13.
"What elevates (the charge) to predatory, is she was under 13 and he was over 18," the ADA said.
Mr. Brassard also agreed to leave sentencing up to the court, she said.
In court Wednesday, the judge also reissued an order of protection for the victim, Padula said.
Mr. Brassard was represented by attorney Patrick McFarlin that day; his counsel is now Joseph Mucia.
His next appearance is set for 11 a.m. Tuesday, Dec. 18.
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