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Conviction stands in 1993 murder case.

Byline: Bennett Loudon

The Fourth Department has upheld a decision by a Monroe County Court judge to admit a defense lawyer's notes into evidence at a hearing.

Defendant, Dale Kahley, was convicted of second-degree murder in August 1993 and sentenced to 25 years to life in prison. He was paroled in November.

Kahley, now 45, was 19 on Feb. 16, 1993, when he fatally shot 23-year-old Mark Bambarger on Murray Street. Kahley believed that Bambarger was driving recklessly on the snow-covered street, so Kahley fired two shots at Bambarger with a handgun, hitting Bambarger in the head.

The case has been before the Appellate Division of state Supreme Court, Fourth Department, at least five times and Kahley's conviction has always been upheld.

In 1995, Kahley appealed the conviction on several issues, including a challenge to the admission of testimony regarding the identification procedure used by police.

Later, Kahley claimed his previous appellate lawyer failed to raise the issue in the previous appeal that the trial judge did not tell the defense attorney the contents of a jury note, which is required under SPL 310.30.

In a split decision in 2013, a Fourth Department panel ordered a reconstruction hearing on the issue. The hearing was held and the judge ruled that "defense counsel had been made aware during deliberations of the contents of the jury note at issue."

But Kahley's most recent appellate attorney, Monroe County Conflict Defender Kathleen P. Reardon, claimed that during the hearing, the judge should not have allowed a page from the notes of the defense lawyer at trial to be admitted at the hearing because the notes constitute the attorney's work product.

"An attorney's 'interviews, mental impressions and personal beliefs procured in the course of litigation are deemed to be work product' and are not subject to disclosure," the majority wrote, citing Corcoran v. Peat, a 1989 First Department case.

"But documents do not become work product merely because they were prepared by an attorney," the panel wrote, citing see Hoffman v Ro-San Manor, a 1980 First Department case.

"The court properly determined that defendant did not meet his burden of demonstrating that the document constituted attorney work product because it was merely a recording of events in the courtroom," the majority wrote.

Assistant Monroe County District Attorney Stephen X. O'Brien represented the prosecution. (585) 232-2035

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Publication:Daily Record (Rochester, NY)
Date:Feb 11, 2019
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