Man denied speedy trial in Tops threats case
The defense attorney for the Buffalo man accused of making phone threats referencing the site of the 2022 Tops Markets mass shooting one day after the racist violence there says Erie County prosecutors have waited too long to turn over evidence against her client.
The latest disclosure from prosecutors came last month, 10 days before Joseph S. Chowaniec’s trial on two misdemeanor charges was to begin in Buffalo City Court, according to court documents filed by the attorney.
“I remind all that any threat will be thoroughly investigated and prosecuted to the fullest extent of the law,” DA John Flynn said in a statement.
The District attorney’s Office wants to introduce information stemming from a call Chowaniec made to police in February 2022 – three months before 10 Black people were murdered at the Tops store on Jefferson Avenue – to report gunfire, according to court papers filed by Brooke A. Meehan, of Legal Aid Bureau of Buffalo.
Meehan argues in court documents that the new disclosure shows that prosecutors weren’t really ready for trial when they told the court they were in December 2022, and since then, they have exceeded the amount of time permitted under “speedy trial” requirements.
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“The delay in discovering and providing such information is a direct result of the People’s lack of due diligence,” Meehan said in court papers.
Joseph S. Chowaniec, 53, was charged in December with saying “Tops on Jefferson” during phone calls to two businesses on May 15, the day after 10 Black people were killed and three people were injured in a mass shooting.
According to police and prosecutors, Chowaniec, 53, called Bocce Club Pizza and Southern Tier Brewing Co. on the afternoon of May 15, 2022, and asked for free food. After being denied, he ended one call by twice saying, “You can thank the Tops on Jefferson,” and the other with “Tops on Jefferson,” also stated twice.
Prosecutors say the delay in turning over evidence was necessary because previous court rulings barred key evidence from being used in the case, namely data from Chowaniec’s phone and statements he made to Buffalo police recorded on body-worn cameras. The newly disclosed evidence arguably was not previously relevant and only became so after the phone data and statements were excluded.
County prosecutors have not filed a response in court to Meehan’s motions to dismiss and preclude evidence. Attorneys, who appeared in court Nov. 27, are due back in court Dec. 18. Chowaniec remains out of custody.
Another judge previously threw out the more serious terroristic threat charges against Chowaniec for the calls, which that judge said were “not terrorism.”
Chowaniec was initially arrested the afternoon of May 15, 2022, several hours after he reportedly made calls to the two restaurants.
Joseph S. Chowaniec was arraigned Wednesday in Buffalo City Court on two counts of second-degree aggravated harassment.
Erie County Judge James F. Bargensi dismissed the terroristic threats charges, which were felonies, in October 2022. On Dec. 14, 2022, prosecutors filed new charges: two counts of second-degree aggravated harassment.
Prosecutors on that date also declared themselves ready for trial on the misdemeanors, at the same time filing a court document – known as a certificate of compliance – declaring they had turned over all of their evidence to Chowaniec’s defense.
There have been multiple court rulings in favor of the defense since then.
City Court Judge Rebecca Town, on March 31, issued a ruling that prohibited prosecutors from using Chowaniec’s statements recorded on police body cameras because prosecutors did not properly provide notice about them to the defense. The judge that day, however, did allow the criminal case to proceed, rejecting a defense motion to dismiss it.
On Sept. 29, Town ruled Chowaniec’s phone could not be used as evidence because of how police seized it. The judge determined that police officers improperly followed Chowaniec into his apartment after he had been talking to them from the doorway.
The man’s public defender said his client has autism and suffers from post-traumatic stress disorder after a traumatic, abusive childhood that caused him to disassociate from reality.
On Nov. 3, prosecutors turned over the additional discovery materials – including police reports, body-cam video and 911 calls – from a Feb. 17, 2022, incident.
Prosecutors had the ability as early as June 2022 to subpoena records that showed whether Chowaniec owned the phone number in question, Meehan argues in court papers.
But now, they are trying to use information provided to police when Chowaniec called them to report a crime, Meehan said in court papers.
“The defendant was seeking emergency services,” she wrote in court papers, “and now the People are attempting to use that information against him at trial.”
Reach Aaron at abesecker[at]buffnews.com or 716-849-4602.
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