Accused rapist seeks confidential records of victim

Aug. 5—Niagara Falls attorney and political operative Nicholas D'Angelo returned to a Niagara County courtroom Thursday afternoon in his oft-delayed rape and sexual assault case.

Some eight months after his last court appearance, D'Angelo's defense team asked Acting Niagara County Court Judge Debra Givens to issue judicial subpoenas that would allow them to see the confidential medical records of one of his alleged victims.

D'Angelo, 29, has pleaded not guilty to a grand jury indictment that accuses him of multiple rapes and sex crimes and with engaging in a commercial sex act with a juvenile.

He faces one count of first-degree rape and two counts of first-degree criminal sexual act in connection with a woman identified as "Victim 1." Those crimes are alleged to have occurred in the fall of 2016.

The indictment charges D'Angelo with one count of first-degree criminal sexual abuse in connection with a fall 2018 incident involving a woman identified as "Victim 2."

And he is charged with two counts of third-degree criminal sexual act, two counts of third-degree rape and three counts of third-degree patronizing a person for prostitution in connection with encounters between August and October 2019 involving a woman identified as "Victim 3". Prosecutors have said "Victim 3" was under the age of 17 during her first two meetings with D'Angelo for a commercial sexual encounter and had just turned 17 before her last meeting with him.

In April, D'Angelo's defense attorneys, Brian Melber and Jessica Kolpit, filed a motion with Givens asking her to subpoena up to nine agencies or service providers who may have provided medical, psychological or substance abuse treatment to Victim 3.

Kolpit declined to say, in open court, why the defense was seeking those records. She told Givens that the defense had made their arguments in written submissions to the court and trusted her judgment in ruling on the request.

Lawyers from Erie County District Attorney John Flynn's office, who are acting as special prosecutors in the case, staunchly opposed the defense request. Assistant Erie County District Attorney Daniel Mattle told Givens "the defendant has failed to provide a good basis that the confidential medical records are relevant."

They also told the judge that D'Angelo, who had served as an assistant Niagara County attorney, prior to being charged in the case, had contacted a "legal supervisor" at the Niagara County Department of Social Services (NCDSS), seeking assistance in accessing records for Victim 3 that may be held by the department.

Givens said she was "concerned about allegations that Mr. D'Angelo has contacted (Social Services)" in connection with his criminal case.

Joseph Scalzo, an attorney for NCDSS, told the judge, "Any records or information (about Victim 3) in our file is considered confidential."

"Under the case law, our records are sacrosanct," Scalzo said. "These are highly sensitive records. I agree with the prosecutors that this is a general fishing expedition for (material to use in cross-examining a witness at trial)."

Kolpit shot back that the arguments from Scalzo and prosecutors had "been belabored in our papers and we have confidence in the court to reach a decision on this."

Scalzo noted that D'Angelo's attorneys had failed to notify Victim 3 that they were seeking a court order for her medical records. Kolpit told Givens they had not made Victim 3 aware of their efforts because they did not want "to upset her."

Givens said she would rule on the subpoena request soon. She then held a private conference with D'Angelo's lawyers and prosecutors.

Late Thursday afternoon, the Erie County DA's office indicated that the judge had set a trial date of Sept. 9, 2023 for the case. A trial had been expected sometime in 2022.

Givens was appointed to handle D'Angelo's case in January, replacing retired State Supreme Court Justice Richard C. Kloch Sr., who had been handling the matter. At D'Angelo's last court appearance in December, Kloch trimmed one charge from what had been the 12-count indictment facing D'Angelo.

Kloch dismissed a charge of unlawful imprisonment, but rejected a motion from D'Angelo's defense asking that all the counts in the indictment be dismissed. The former justice also declined to order separate trials for each of the three victims named in the indictment.

Prosecutors have previously characterized the evidence against D'Angelo as "extremely disturbing."

D'Angelo has steadfastly denied the allegations and has said that he intends to "take his case to a jury."

Hearings in the case were delayed multiple times as a result of the COVID-19 pandemic. If D'Angelo were to be convicted on the remaining 11 counts in the indictment he could face a potential prison term of 35 years.

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