STATE OF NEW YORK COUNTY COURT : ERIE COUNTY ‘THE PEOPLE OF THE STATE OF NEW YORK ve NOTICE OF MOTION PAYTON GENDRON, Erie County DA Legacy No. 00877-2022 Defendant. Please take notice that on May 19, 2022 or as soon thereafter as counsel can be heard, the defendant will move this Court for (i) an order restraining Erie County District Attorney John Flynn and his representatives from making further extrajudicial comments about the subject matter of this case during the pendency of the case, (ii) an order granting counsel for the defendant, and anyone working on his behalf, access to inspect, photograph, and measure the crime scene at 1275 Jefferson Ave., Buffalo, NY 14208, and that the condition of the premises remain unchanged in the interim. be BRIAN K. PARKER, ESQ. Counsel for the Defendant 390 Elmwood Ave. Buffalo, NY 14222 DISTRICT ATTOR! EGY 20 2022 9:3To: Hon. Susan Eagan Erie County Court 50 Delaware Ave. Buffalo, NY 14202 John Flynn: District Attorney Erie County District Attorney's Office 25 Delaware Ave. Buffalo, NY 14202 Lynne A. Burgess, Esq, Senior Vice President, General Counsel & Secretary Tops Markets, LLC 1760 Wehrle Dr. Williamsville, NY 14221.STATE OF NEW YORK COUNTY COURT : ERIE COUNTY _—__ ‘THE PEOPLE OF THE STATE OF NEW YORK vw PAYTON GENDRON, Defendant. STATE OF NEW YORK) COUNTY OF ERIE ) ss. CITY OF BUFFALO ) BRIAN K. PARKER, being duly sworn, deposes and says: SUPPORTING AFFIDAVIT Erie County DA Legacy No. 00877-2022 1, lam an attorney duly licensed to practice law in the State of New York. 2. |, along with co-counsel DANIEL J. DUBOIS and ROBERT J. CUTTING, am counsel for the defendant, PAYTON GENDRON, who is charged by felony complaint with one count of murder in the first degree (Penal Law § 125.27[1][a][viil]) for the shooting at Tops Friendly Markets at 1275 Jefferson Ave., Buffalo, NY 14208 on the afternoon of May 14, 2022. I make this affidavit in support of my motion for (i) an order restraining Erie County District Attorney John Flynn and his representatives from making further extrajudicial comments onThe District Attorney and his representatives should be restrained from making further public comments in this case. On Monday, May 16, 2022, during a lengthy commentary about the subject matter of the ‘case, Mr. Flynn told the assembled media that | had withdrawn the request for the forensic, examination. He then went on to make the following statement: “I don't see the need to ask for it myself, so I'm not going to ask for it. The judge has the ability — sua sponte ~ on his own, for those who didn't take Latin, to order the investi tion, a forensic. He did not feel the need to do that, so the mental health forensic part of this has now become a moot point, and is now off the table” (emphasis, added) (Brayton J. Wilson, “District Attorney Flynn Warns Public About Threats Similar to Tops Shooting,” May 16, 2022, https://www.audacy.com/wben/news/local/district- 5. This statement, one of many made by Mr. Flynn in the days since the charges were filed, is inaccurate and deeply prejudicial. Contrary to his assertion, a forensic examination can be issued at any time after arraignment and before sentence (CPL 730.30[1]). Additionally, the defense has thirty days after arraignment to file notice of a psychiatric defense, which is ag sparate from the issue of the defendant's competency to stand trial (CPL 250.10{1]). But the ee at potentially multiple additional charges to be filed. We are looking at tic afar charges, we are looking at hate crime charges, there's actually a fe called domestic terrorism motivated by hate. So, that chargeight there encompasses the actual terrorism and the hate charge together, all in one charge” (Adam Sabes, “Buffalo Mass Shooting: Erie County DA says Domestic Terrorism Charges are Possible in. Grocery Store Attack,” May 15, 2022, L woww. i mass i 5 15! r= =aHROcHM6Ly93d3cuZ29v72xILmNvb: ferrer_sig=é XI liUOmKZ3a7ov- WkolizCZ)- XhWeYb-SNgSiMpE6T6_ aYOGavbitFN3- MLQbEGwSPOXI2XJIEXZXFLOWR_mks5vIOIGPkMXcyUvILCiVa7 RmEVCRtYpEeXB7FBC4Le2 kWwf0cSyrBol7< 2LGeB1n), 7. Anorder restraining extrajudicial comments by the parties or counsel may be granted if there is “a reasonable likelihood of the existence of serious threat of the right to a fair trial” (Lowinger v. Lowinger, 264 AD2d 763 [2d Dept. 1999}}). It is incumbent upon a trial court to ensure that each of the parties receives a fair trial, and the Court “possesses both the power ‘and responsibility to safeguard their rights. The trial court, in so doing, must bear in mind the fact that prior restraints upon the rights of free speech and publication may only be overcome a showing of a clear and present danger of a serious threat to the administration of 1” (Ash v. Board of Managers of 155 Condominium, 44 AD3d 324, 325 (1* Dept. 20071). jing has been made in this case. If the defendant raises a psychiatric defense at ‘in the future, the defense should be evaluated on its merits by an unbiased jury. /a substantial risk that the jury pool has been tainted, and that threat will only er public comments by the District Attorney. Rules of Professional Conduct, “A lawyer who is participating in or has al oF civil matter shall not make an extrajudicial statement that the nably should know will be disseminated by means of publiccommunication and will have a substantial likelihood of materially prejudicing an adjudicative proceedin the matter” (Rule 3.6fa]). 10. Statements ordinarily likely to prejudice a criminal matter include references to (1) the character, credibility, reputation or criminal record of a party; (2) the existence or contents of any confession, admission or statement given by a defendant; and (5) information the lawyer knows or should reasonably know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial (Rule 3.6(b]).. 11, “Rule 3.6 prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of __ increasing public opprobrium against the accused” (Rule 3.8, comment 5). sibilities regarding lawyers and nonlawyers who work for or are associated with the office. Prosecutors should bear in mind the importance of these obligations in with the unique dangers of improper extrajudicial statements in a criminal case, xercise reasonable care to prevent persons assisting or associated with the |, the United States Supreme Court vacated a murder conviction where rotect a criminal defendant “from the massive, pervasive and14, While there may be no way to undo the prejudice these comments have already caused, this Court can ensure that no further damage is done — either to the defendant's right to a fair trial or to the community's right to the fair administration of justice. 15. In the alternative, this Court should issue an Order directing the District Attorney and his employees to comply with the ethical standards cited above and refrain from making any extrajudicial statement that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public prejudice against the defendant. The defense should be granted access to the crime scene, and it should remain unchanged in the interim. 16. CPL 245.30(2) authorizes this Court to issue an order permitting the defense, against whom an accusatory instrument has been filed, an opportunity for “reasonable access” to the premises for the purpose of inspecting, photographing, and measuring the crime scene, and requiring that the condition of the premises “remain unchanged in the interim.” In authorizing such motions, courts should consider (i) defendant’s expressed reason for access, (Ii) any cy interest in the premises, and (iii) whether the probative value of the scene will be by alternate means (id. xpressed need is significant. Upon information and belief, it is expected that both fore, essential for defense to conduct its own review of the premises to and collect evidence and information to potentially rebut evidence18. Second, the privacy interest implicated is non-existent. The incident occurred at a grocery store, which was widely accessible to public (see CPL 245.30(2); People v. Cruz, 70 Misc3d 1206(A] (Sup. Ct., Kings County 2020]). 19. Finally, upon information and belief, it is expected that law enforcement will be releasing the scene in the very near future. At such time, it will be impossible to review the scene as it was, Additionally, the return of shoppers to the store will frustrate the defense’s ability to conduct a meaningful inspection. ‘Accordingly, the defendant respectfully requests that this Court issue both orders L BRIAN K. PARKER, ESQ. JENNIFER A. HURLEY Notary Public, State of New York. ch ogoztusae1se Qualified in Erie Coun Commission Expires Apri 21°20STATE OF NEW YORK COUNTY COURT : ERIE COUNTY ‘THE PEOPLE OF THE STATE OF NEW YORK v PAYTON GENDRON, Defendant. ‘ORDER RESTRAINING EXTRAJUDICIAL COMMENTS Erie County DA Legacy No. 00877-2022 Upon reading the motion and supporting affidavit of BRIAN K. PARKER, ESQ., and any papers by the prosecution in opposition, it is hereby "the case. ORDERED that Erie County District Attorney John Flynn and his representatives be restrained from making further extrajudicial comments on the subject matter of this case during the pendency of HON. SUSAN EAGANSTATE OF NEW YORK COUNTY COURT : ERIE COUNTY THE PEOPLE OF THE STATE OF NEW YORK ORDER GRANTING ACCESS TO v PREMISES. PAYTON GENDRON, Erie County DA Legacy No. 00877-2022 Defendant. Upon reading the motion and supporting affidavit of BRIAN K. PARKER, ESQ., and any papers by the prosecution in opposition, it is hereby ORDERED that counsel for the defendant, and anyone working on his behalf, be granted access to inspect, photograph, and measure the crime scene at 1275 Jefferson Ave., Buffalo, NY 14208, and that the condition of the premises remain unchanged in the interim. HON. SUSAN EAGAN