SHERIDAN - Dismissed.
In less than 10 minutes, the charges of third-degree harassment and criminal obstruction of breathing against former corrections officer William Prost, 52, of Stone Quarry Road, Fredonia, were dismissed Tuesday morning by Judge Lydia Romer.
The trial was expected to take up to three hours, with each side presenting witnesses, but a key witness did not appear in court: Prost's accuser.
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According to Assistant District Attorney Greg Drab, the case could not be prosecuted in the absence of the accuser, and asked for a new trial date.
"Without the material witness, I ask for an adjournment," Drab told the judge. "I spoke with her last night and explained to her the importance of her appearance here this morning," he said, but later added, "I did not get a firm commitment that she would be here today."
Attorney for Prost, John Schober, asked for a full dismissal of the case. "Your honor, I would oppose any request for an adjournment or continuance. The trial has been scheduled for a number of weeks," Schober responded.
"My client is here today. My witness is here today under subpoena," Schober said, and noted the witness for the prosecution was expected to appear 45 minutes prior to the beginning of the trial. "She is really the singular witness, based on my investigation."
The charges were made against Prost on May 8, while he was a corrections officer at Lakeview Shock Incarceration facility. He retired on May 29 after the alleged domestic incident. It is alleged Prost struck his accuser, a live-in girlfriend, in the face and covered her mouth and nose with his hand, preventing her from breathing.
According to Drab, the witness was served a subpoena by state police on Oct. 9.
"Without this material witness your honor, the People will not be able to prove this case beyond a reasonable doubt," Drab explained to the judge.
Schober restated his motion to dismiss, and Romer gave Drab another chance to move forward with the trial. "You believe that you cannot establish every element of the offense beyond a reasonable doubt with the testimony of the arresting officers and the photographic evidence?" she asked.
"Your honor, I cannot," Drab responded.
Before rendering a decision, Romer took a deep breath and paused for a moment.
"I take no pleasure in doing this. I take no pleasure in being here today or in granting this motion," Romer stated, "but I feel that under the law, I have no other choice."
The case was dismissed and court adjourned.
In a phone call after the trial, District Attorney David Foley said he spoke with Drab regarding the case (Monday) night, and knew the witness was uneasy about appearing in court. "Our proof is gone with her failure to show. We don't have a case without her," Foley explained.
"We have an ethical obligation to not move forward with a case we know we cannot sustain," he told the OBSERVER. "It would be malicious prosecution if I went forward with a case I could not prove. If I move forward, then I'm using my office as a sword. Ethically speaking, you can't do that."
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