Superior Court Associate Judge David A. Wiseman yesterday issued an order denying former Department of Public Safety deputy commissioner Ambrosio T. Ogumoro’s motion to stay his one-year prison sentence pending the appeal of his conviction.
In a 10-page order, Wiseman ruled that upon review of the parties’ briefs, oral arguments, and applicable law, he finds that Ogumoro failed to show that his appeal would raise a substantial question of law or fact likely to result in reversal or in an order for new trial.
With Wiseman’s order, it means that the 57-year-old Ogumoro will remain in jail to continue serving his prison term at the Department of Corrections until a further court order.
The former DPS deputy commissioner started serving the prison term last April 13. Ogumoro, though counsel Daniel Guidotti, filed the motion last April 8 and also filed an amended motion last April 11. Wiseman heard the motion last April 13 and placed it under advisement.
Guidotti argued that the government did not show enough evidence to prove an element of felony theft of services and conspiracy to commit theft of services.
Guidotti also asserted that the government did not show enough evidence to prove that Office of the Public Auditor investigator Juanette David-Atalig was a law enforcement officer and that the court should have excluded all evidence of co-conspirator statements.
In addition, Guidotti argued that the court should not have convicted Ogumoro of misconduct in public office, as stated in count 13 of the information because the statute provides that all process should be “issued in accordance with law and the rules of procedure prescribed in accordance with law.”
On sufficiency of evidence arguments, Wiseman in the order yesterday said while he did not decide whether Ogumoro’s issues were substantial questions of fact, his grounds for relief are nonetheless denied on the merits.
Wiseman said Ogumoro did not show by affidavit or by citation to the record that he sufficiently preserved his objection for appeal.
Accordingly, Wiseman said, defendant has not shown that his sufficiency of evidence arguments would have been likely to result in reversal or an order for new trial.
On the issue of admission of evidence argument on hearsay ground, Wiseman said Ogumoro only states that he “will argue on appeal that there was insufficient evidence to admit statements made by [co-conspirators].”
Again, the judge noted, defendant did not show by affidavit or by citation to the record that he sufficiently preserved his objection for appeal.
“Without proffers of such evidence, the court cannot be persuaded that the issue is a substantial question of fact or that defendant is likely to obtain a reversal or an order for new trial on this issue,” he said.
On the issue that the government cannot prove the elements of the crime beyond a reasonable doubt, Wiseman said he does not find that Ogumoro met his burden to show that the issue meets the “substantial question of law” requirement.
Wiseman said he has relied on case law in this matter that supports the proposition that a person may not contemporaneously refuse to give a court summons its legal effect, even if the document is later found to be invalid.
The judge said while Ogumoro points to the plain language of the statute, he has not offered case law or policy arguments to support any contrary position.
Last January, a Superior Court jury rendered a unanimous verdict finding Ogumoro guilty of conspiracy to commit theft of services, and theft of services pertaining to the same incident of shielding of then-attorney general Edward Buckingham from being served with penal summons in August 2012.
Wiseman found Ogumoro guilty of five counts of misconduct in public office, one count of obstructing justice: Interference with a law enforcement officer or witness, and one count of criminal coercion.
Last Jan. 30, Wiseman slapped Ogumoro with a one-year prison sentence.