It’s not unusual for a criminal defendant to believe he's innocent and can't possibly be proven guilty. And while most defense attorneys advocate aggressively on behalf of their clients, they don't always believe in their client's innocence.
Michael T. Dwan says he believed Kaleb J. Bobzien.
Bobzien, a resident of Bergen, was arrested in December and later indicted by a Genesee County Grand Jury of seven counts of rape in the third degree and criminal sexual act in the third degree. In common parlance, he was accused of statutory rape. At 23, he was accused of sexual intercourse with a 17-year-old girl.
All of those felony charges were dropped based on arguments presented by Dwan, and on Wednesday, Bobzien entered a guilty plea to two misdemeanors – on an Alford basis, meaning he doesn’t admit to the factual assertions of the charges, just acknowledges the likelihood of conviction at trial -- to a criminal contempt and to an obstruction breathing/blood circulation.
From the perspective of Assistant District Attorney Robert Zickl, based on an interview after Wednesday's court proceedings, he believes the girl who made the accusations, but there's a difference between believing an accusor and being able to sustain the charges in court.
If Bobzien had been convicted at trial on all of the charges in the indictment, he faced up to four years in state prison on each felony count and the prospect of being branded a registered sex offender for the rest of his life.
If Bobzien obeys all of the judge's orders -- basically, stay out of trouble -- between now and Feb. 1, he won't serve more than 364 days in the Genesee County Jail.
"I think that there's a strong argument to be made at sentencing that Kaleb has already suffered enough, considering that he was already incarcerated pursuant to these charges, and he and his family have had to go through great expense to get him to this resolution," Dwan said after Bobzien's appearance in County Court on Wednesday. "I think there are arguments to be made to the judge about why she should not incarcerate him whatsoever. That being said, it is her right to incarcerate him for up to one year, so long as he abides by the conditions."
Life lessons
At the end of Wednesday's hearing, Judge Melissa Lightcap Cianfrini wanted to make sure Bobzien understood a few things. First, his attorney worked hard and got him a very generous plea offer, so he should do everything he can between now and sentencing to preserve the sentence cap, which includes abiding by the order of protection currently in place, and understanding that when he is in her courtroom, he is to respect and obey the instructions of court personnel.
The implication was that Bobzien had failed to immediately stop using his mobile phone when instructed to do so prior to Wednesday's hearing.
During an interview with The Batavian, Bobzien said he will have no trouble following the instructions of the court.
It should be noted that Bobzien has multiple arrests going back to 2019. The now 24-year-old young man said he was working on getting his life flying forward on a straight path when these accusations arose, but that the arrest and legal tangle have helped him grow up.
"Before all this happened, I was going to pilot school, I was training to be a pilot," Bobzien said. "I just feel like, it's not really fair that I was put in this situation. But I learned a lot from it. I learned a lot about myself. I know people are gonna judge me for this regardless, had I been guilty or not guilty, whatever it may be, I was going to be judged regardless. I'm just happy that it ended the way it did. I'm happy that everybody can move on from the situation now."
Bobzien, who was raised as the adopted son of a white couple in the Town of Bergen, said he doesn't believe this case will stand in the way of his ambition to become a pilot.
"My attorney wants me to go to law school. I want to go back to flying airplanes," Bobzien said. "I want to go back to pilot school. All I know is the future is really looking up from here for me. With how everything played out, I can do anything that I want to do. I just want to have a positive impact on the community and show my people in Batavia that just because you hit a bump in the road, it doesn't necessarily mean it's the end for you, good things can still happen."
Beating the felony charges
Dwan said his client avoided the felony charges related to the rape allegations both as a matter of law and the fact that Bobzien didn't do what he was accused of doing, that the prosecution wouldn't be able to overcome his client's alibi.
First, Dwan said he was able to show the prosecution that there were overlapping allegations that couldn't be differentiated from one another. As a matter of law, that's not permissible.
"Prior to today, we had one count of statutory rape, and one count of criminal sex act as the highest possible charges remaining," Dwan said. "As it turned out, on the dates and times that the prosecutor believed that those acts occurred, my client was out of the country, and we were able to prove that, and so had this case gone to trial, I'm extremely confident that he would have been acquitted of all of the counts. Definitely, the serious counts, because none of them were true. ... The rest of them would have been unraveled through cross-examination."
Zickl said in deciding to reach the plea agreement Bobzien eventually accepted, he had to weigh the burden of proof he must meet to satisfy a judge and a jury. He didn't think the evidence available to him was strong enough.
"I don't think the girl is lying when she came forward," Zickl said. "Unfortunately, there are a lot of things that happened that we can't prove beyond a reasonable doubt."
Even though Dwan believes the charges against his client were false allegations, Dwan said he had no argument with law enforcement nor the District Attorney's office for going forward with the case once a complaint was filed.
"It is understandable that law enforcement takes seriously accusations made by an underage woman alleging sex acts," Dwan said. "It's understandable that the District Attorney's Office takes them very seriously. However, through motion practice, and through communication with the District Attorney's Office, we were able to show the District Attorney's Office that it was not possible that Mr. Bobzien did what he was accused of doing.
"I have a ton of respect for Mr. Zickl and the District Attorney's Office because when they realized that the fact pattern that they believed in when they charged Mr. Bobzien with all these serious crimes was not true, they acted appropriately and they reduced the charges down to something that I think is reasonable in light of the facts and circumstances."
An Alford plea
Bobzien entered guilty pleas to misdemeanor counts of criminal contempt in the second degree, allegedly violating an order of protection and to obstruction of blood circulation or breathing.
Because Bobzien was entering his plea on an Alford basis, it was incumbent on Zickl to recite for the court the facts of each charge as the facts would be presented to a jury.
On the criminal contempt charge, Zickl said that after Bobzien had moved out of a shared residence with the protected party, where multiple other people shared a residence, he was told that some of his personal belongings were available for him to pick up on a porch as the house. On Oct 5, 2021, Bobzien retrieved his property, thereby being on the property where the protected party was located, was seen by the protected party, when no responsible adult had given Bobzien permission to be on the property at the time of the incident.
Dwan said he believes if the case had gone to trial, his client could have beaten that specific criminal contempt charge. He and Zickl have different interpretations of the law on the matter.
"From the perspective of the District Attorney's Office, there was a change in circumstances allegedly that Kaleb had moved out of home, which may or may not have been true, actually. But because Kaleb allegedly moved out of the home, that negated the caveat (that allowed Bobzien to go to the home) in the order of protection.
"From my perspective, as an attorney, an order of protection can only be modified by the court that issued it. So a change in circumstances needs to be addressed in court. So I believe that that caveat would have held (allowing him to go to the house), and I don't think that Kaleb would have been convicted of violating the order of protection because I think that a jury would have said, 'No, the order says he's allowed to go there. And that's exactly what he did. And no judge ever told him to the contrary.'"
Zickl said he's comfortable with the criminal contempt allegation as charged.
"He wasn't living there anymore," Zickl said. "Looking at it through the prism of a 15-year-old girl feeling intimidated by somebody who abused her in the past, and then he shows up at her residence, and at that point in time, he didn't tell anybody he was coming out so they could have the victim out of the house, I don't have a problem with the criminal contempt charge. I don't know if he intended to mildly intimidate her, but that was the impact."
On the breathing/circulation charge, Zickl said he would have presented evidence to a jury that would have asserted that Bobzien and the alleged victim had gotten into an argument on June 24, 2021, and Bobzien had restricted the movement of her arms with his legs and put his hands around her neck and covered her face with a blanket. Bobzien attempted, he said, to stop her breathing and blood circulation though she never lost consciousness.
Dwan said law enforcement did not have all of the facts of what really happened when they arrested Bobzien, hence the guilty plea on an Alford basis.
"The facts, as they were alleged in the original indictment, were incorrect," Dwan said. "The incident that happened at the apartment that day was not factually reported to law enforcement. I think that Kaleb would have had a hard time if he had been forced to admit to the things that Mr. Zickl put on the record on our behalf today, so I asked the District Attorney's Office and the judge that Kaleb not be forced to say those words himself, because Kaleb is an honest guy, and he would have a hard time articulating that himself in court."
A young black man in the criminal justice system
So, if neither of these charges can be substantiated, why plead guilty?
"Because we walked into this with extraordinarily high risk," Dwan said. "Let's be real, Kaleb is a young black man who is facing sex allegations, so as an attorney, I begged Kaleb to accept the plea that was put before him, not because I don't think that we would have succeeded at trial, but because the risk of going to trial would have been extraordinary. As much as I would like to think that every jury is going to see things clearly and see things my way, I have learned the hard way that that is not always the case. And so Kaleb made a calculated decision to accept the criminal contempt and accept the obstruction of breathing charge."
Dwan said he advised Bobzien to accept a plea on an Alford basis as a matter of accepting reality in today's world.
"There's no doubt that, especially when it comes to sex crimes where the complainant is young and white and female, and the defendant is a 20-something black male, the statistics show that it's a problematic situation for that defendant," Dwan said. "Now, I have every confidence in the world that we would have been able to have a jury here in Genesee County that would have given Kaleb justice and would have seen the truth. However, as a parent, and as a friend of Kaleb and Kaleb's family -- I've known Kaleb's family for almost 10 years -- if Caleb were my son, I would have begged him to take the plea. And that's exactly what I did with Kaleb."
Staring down that reality, Bobzien said, is why he took the deal even though he doesn't believe he committed the crime.
"That was a big thing for me, and why I took the plea," he said. "I'm a young black man in this situation. I've read "To Kill a Mockingbird." I know how bad this could have ended for me, and I just took that off the table. It was a relief off my shoulders. It was a relief off my family's shoulders. And honestly, I wouldn't be here today without Mr. Dwan. I really owe it all to him."
Photo: Michael T. Dwan and Kaleb J. Bobzien outside County Court on Wednesday. Photo by Howard Owens.
