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Archive for March, 2010

By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: Tuesday, March 23, 2010

A Keene psychologist has surrendered his license to practice mental health therapy in the wake of allegations he sexually assaulted and stalked a patient.

Dr. Burton G. Hollenbeck, 56, of Richmond has been indicted in Cheshire County on eight counts of felonious aggravated sexual assault, two counts of violating a protective order and one count of witness tampering.

Each sexual assault charge carries a maximum prison sentence of 10 to 20 years. Witness tampering, also a felony, is punishable by 3 1/2 to seven years in prison. Violating a protective order is a misdemeanor charge with a possible sentence of a year in jail.

Hollenbeck’s attorney, Cathy J. Green of Manchester, declined an interview request but released the following statement: “Dr. Hollenbeck will enter pleas of not guilty to all of these charges and is confident that when all of the facts are brought before the court, justice will prevail.”

Hollenbeck, who worked out of an office on Roxbury Street in Keene, hung up on a reporter when reached by phone Monday.

In late January, Hollenbeck agreed to quit practicing psychology in New Hampshire until the state Board of Mental Health Practice resolves the allegations of misconduct pending against him. Psychologists are barred by ethical code from having sex with current clients or former clients within two years of the termination of therapy.

The sexual assault indictments against Hollenbeck allege that he had sex with a 36-year-old patient eight times between March and October 2008. State law forbids doctors from having sex with current patients or former patients within a year of the termination of therapy. The patient’s identity in this case is being protected because The Sentinel does not name alleged victims of sexual assault.

The state Attorney General’s Office has appointed Hillsborough County Attorney Robert M. Walsh to prosecute the case. Walsh did not return messages seeking comment.

The alleged victim and her husband — they were married in 1995 and have two children — began seeing Hollenbeck for marriage counseling in mid-2006.

After learning that the wife had been abused when she was younger, Hollenbeck asked her to have one-on-one therapy sessions with him, according to separate lawsuits the wife and husband have filed against Hollenbeck.

They are seeking hundreds of thousands of dollars in compensation for mental anguish, emotional distress, lost wages, legal fees and other damages, losses or expenses they say they suffered as a result of the alleged affair and Hollenbeck’s “wanton, malicious and oppressive” actions.

Shortly after the wife started her private sessions with Hollenbeck, the doctor bought her golf equipment, gold and pearl earrings, paid her auto insurance, gave her $200 toward a trip to Europe and paid $50 for her monthly phone bill between March and November 2008, according to the husband and his attorney, William Aivalikles of Nashua.

The wife and Hollenbeck became involved in a romantic relationship in February 2008, the husband states in his lawsuit. In October, Hollenbeck’s office manager blew the whistle on the alleged affair, but the wife and doctor denied the allegations, according to the lawsuit.

The husband states in court documents that he wrote a letter in support of Hollenbeck because he could not believe the doctor was having a romantic relationship with his wife.

But in early December, the wife came forward and admitted she was having an affair with Hollenbeck, her lawsuit states. She then ended the relationship, according to her lawsuit.

Her attorney, Paul M. DeCarolis of Nashua, declined to comment on the case.

“All I can say is we’re confident that the case will get before a civil jury in Cheshire County and the jury will issue the appropriate justice,” DeCarolis said.

Court documents indicate the wife is seeking at least $400,000 in compensation from Hollenbeck. Her husband wants $500,000.

Both lawsuits have been suspended until Hollenbeck’s criminal case concludes.

After the wife ended her romantic relationship with Hollenbeck, the doctor began stalking her, according to her lawsuit.

Claremont District Court Judge John J. Yazinski barred Hollenbeck from contacting the wife in a Dec. 22, 2008, restraining order. In her request for the restraining order, the wife writes that Hollenbeck followed her to a gas station on Dec. 3 and tried to block her car with his vehicle.

“I refused to tell him where I was going so he followed me all around Keene and a few miles out before giving up and turning around,” she wrote. “I fear for my life because I have reported him to the Board and I don’t know what he will do, how he will react and I have many phone messages for you to hear his temper.”

She writes that Hollenbeck won’t stop calling her and sending her text messages and that she’s seen him parked outside her house.

Four days after the incident at the gas station, Hollenbeck pulled the keys out of the ignition of the wife’s vehicle while she was trying to drive away from him during another confrontation, according to her statement in support of the restraining order.

Hollenbeck “told me I could have them back when I got to his office. Despite repeated (requests) to give them back he went to his office. As I entered he grabbed me and threw me on the couch. He threw me many times whenever I was able to get out of his grip. I told him, ‘No Burt No! Get off me!’ to no avail.”

Hollenbeck is accused of violating the restraining order by contacting the wife on Dec. 22 and Dec. 23, 2008. During the latter conversation, he told her, “I can’t help you from prison,” according to the indictments. The alleged statement led to the witness tampering charge.

On Dec. 31, 2008, Hollenbeck was arrested for violating the restraining order. He posted $25,000 bail and was released from jail the next day. The restraining order remains active.

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By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: March 18, 2010

The effort to free a man serving 10 to 30 years in prison for kidnapping a Jaffrey woman has hit a legal roadblock. A Superior Court judge rejected a request to give Brian R. Chevalier a new trial.

In 2004, Chevalier, 43, was acquitted in Cheshire County Superior Court of 10 other criminal charges — including aggravated sexual assault, criminal threatening and burglary — but a jury found him guilty of the kidnapping charge.

His ex-girlfriend testified during the trial that Chevalier held her against her will and repeatedly raped her at her Jaffrey home. The Sentinel does not identify alleged victims of sexual abuse.

Chevalier’s attorney, Justin P. Nadeau of Portsmouth, who has volunteered his legal services, and two retired police officials — one is a state representative — believe the ex-girlfriend concocted the rape and kidnapping story.

They base their belief on her phone records from the night of the incident and a linguistic polygraph test of the statement she gave to police. The linguistic polygraph test, known as Scientific Content Analysis, or SCAN, is used by law enforcement officials to gauge the reliability of a person’s retelling of an incident.

The ex-girlfriend testified during Chevalier’s trial that Chevalier became angry while he was kidnapping her because she was receiving calls from an unidentified caller during a three and a half hour period, but her phone records show no calls during that time, according to Nadeau.

Her statement to police about the incident is inconsistent and she uses language that indicates she was not a victim, according to John M. Healy, a retired N.H. State Police lieutenant who teaches the SCAN technique.

One of Healy’s students, state Rep. Dudley “Dan” Dumaine, R-Auburn, who is a former Keene police officer, also believes Chevalier is innocent.

Healy, Dumaine and Nadeau believe the ex-girlfriend concocted the story after her estranged husband walked in on her and Chevalier the morning after they spent the night together. They say she feared she’d lose custody of her daughter if her husband brought up her infidelity during divorce proceedings.

In an e-mail to The Sentinel, the woman said her now-ex-husband was engaged to another woman before the attack.

“I have never had a reason to lie. I did not lie,” she wrote. “My divorce was final long before things went to trial. I could have refused to testify.”

She declined requests for a phone or in-person interview.

Meanwhile, Nadeau filed a motion with Coos County Superior Court requesting that Chevalier be given a retrial based on the phone records and SCAN of the ex-girlfriend’s statement. The case is playing out in Coos because Chevalier is imprisoned there.

Nadeau believes jurors will overturn the kidnapping conviction after they hear about the SCAN of Chevalier’s ex-girlfriend’s statement.

He also believes that Chevalier’s original attorney, now-retired public defender Hampton W. Howard, was ineffective because he did not introduce the ex-girlfriend’s phone records during the first trial. Howard could not be reached for comment.

Judge Peter H. Bornstein recently rejected Nadeau’s request for a retrial. He concluded that Nadeau failed to prove that introducing the phone records or SCAN results would lead to a different outcome during a retrial.

Also, Howard cross-examined the ex-girlfriend during the first trial and convinced jurors that Chevalier was not guilty of 10 of the 11 charges he faced, which led Bornstein to determine that Howard handled the case effectively.

“For all of those charges, the victim was the only witness. … It is apparent, given the outcome of the case, that the jury did not believe much of the victim’s testimony,” Bornstein wrote in his decision.

“The petitioner has not shown a reasonable probability that SCAN evidence, which would have served only to further impeach the victim, would have yielded a different result.”

As for the phone records, another Superior Court judge, Timothy Vaughan, rejected a previous argument from Chevalier that introducing that evidence would have resulted in a different verdict. Because Chevalier did not appeal Vaughan’s decision, he waived further litigation on the argument, Bornstein ruled.

Calling Bornstein’s decision “disappointing,” Nadeau said he will appeal to the N.H. Supreme Court for a retrial. If that fails, he’ll take his request to federal court.

Nadeau said Chevalier’s case has been one of the most expensive cases he’s ever handled for free, or pro bono, in his career.

“When you take on a case pro bono, you do it because you want to, because you believe in the cause,” he said. “I believe in Brian Chevalier. I believe that at the end of the day he will have a fair hearing.”

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By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: March 12, 2010

MANCHESTER — Surrounded by three lawyers, the man who ran the now-shuttered Hinsdale Greyhound Park walked out of U.S. Bankruptcy Court in Manchester Thursday afternoon, closing the door on a Chapter 7 case that began in December 2008.

Joseph E. Sullivan 3rd declined an interview request through one of his attorneys, Arpiar G. Saunders Jr., after the hearing. Sullivan believes the “court order stands for itself,” Saunders said.

In the order, Chief Judge Mark W. Vaughn called the bankruptcy settlement “fair and reasonable and in the best interests of the bankruptcy estate.”

The settlement Vaughn approved calls for drawing $1,086,120 from the estate to repay the track’s creditors.

Dozens of bettors who were unable to withdraw their wagering accounts when the track closed stand to be repaid about half of what they’re owed, said Deborah Notinger, an attorney for the bankruptcy trustee, Michael S. Askenaizer. The court appointed Askenaizer to liquidate the track’s assets.

One of the track’s biggest bettors, Herschel Bird of Nevada, disapproves of the settlement. He suspects that Sullivan, who had a salary of more than $200,000 during the three decades he ran the track and took out $650,000 in loans from the business, may have hidden assets from Askenaizer.

“When you’re asked to take 50 cents on the dollar, you feel like you’re being ripped off,” Bird said. “Something doesn’t ring true about Sullivan’s finances.”

Sullivan stated in a deposition with Notinger that he is destitute and financially dependent on his sister, who loaned him $70,000.

Sullivan and his wife own a house and two properties in Swanzey valued at an estimated $575,000.

But after a $375,000 mortgage, they have about $200,000 in equity in those assets, according to Sullivan’s deposition.

Sullivan also lists $123,206 in other personal property, which includes a 2003 Cadillac Seville, a 2004 Jeep Cherokee, jewelry and art.

Based on the advice of his attorney, Bird did not file an objection to the settlement with the court, which might have altered the outcome of Thursday’s hearing. None of the track’s other creditors objected to the deal.

Under the settlement, $400,000 will be taken from the proceeds of a land deal Sullivan and business partner Carl B. Thomas, who owns Spofford-based Thomas Construction Corp., made with Wal-Mart Stores Inc. Sullivan has to come up with another $400,000 by selling the remaining former track land.

That land, about 66 acres, belongs to Hinsdale Real Estate LLC, a holding company Sullivan and Thomas created before the bankruptcy filing.

Sullivan sold the track land, originally 91 acres, and buildings to the holding company for $3.3 million.

Later, the holding company sold 25 acres to Wal-Mart for $2.1 million. The remaining 66 acres have been assessed at $1.2 million. The buildings on the property are assessed at $3.5 million.

Sullivan disagrees with those assessments. He has made an unsuccessful attempt to have Hinsdale lower the assessed value of the land and buildings, which would result in a decrease in property taxes. He is appealing the town’s decision to the state.

Sullivan and Thomas have two years to hand over $400,000 to the bankruptcy estate by selling all or some of the 66 acres at and around the track before the court steps in and forces an auction of the property.

The $800,000 from that land sale and the Wal-Mart deal will be combined with $286,120 the bankruptcy estate has from the track’s other liquidated assets, such as computers, furniture and vehicles that were auctioned last spring.

A peripheral condition of the settlement calls for Thomas to buy Sullivan’s 75 percent interest in Hinsdale Real Estate for $500,000.

Sullivan owes Thomas about $2.3 million for two loans secured by mortgages tied to the former track property. Thomas is gambling that he can recover his debt on the mortgages and perhaps make a profit by selling the 66 acres, even after the court takes a $400,000 cut from the proceeds.

“That land is worth bupkus. Nothing’s selling in that area,” Notinger said after the settlement hearing. “He’s taking all the risk and we’re getting money up front.”

Askenaizer and Notinger have raised concerns that Sullivan’s deal with Hinsdale Real Estate prior to the bankruptcy filing was a fraudulent property transfer.

But they agreed in the settlement to not pursue the allegation by filing a lawsuit against Sullivan.

They say legal action would be expensive and, even if it were successful, Askenaizer would be responsible for selling the track’s remaining property to pay off Thomas’ debt and the creditors.

Bird, the Nevada bettor, criticizes Askenaizer and Notinger for being too passive in their handling of the track’s bankruptcy — he wanted them to thoroughly investigate Sullivan’s finances instead of relying on the deposition and his financial affidavit.

Bird wants to know what Sullivan did with the money he made while working at the track and the $650,000 in loans he took from the business. Sullivan’s two daughters were also on the track’s payroll for years, making about $25,000 annually, even though they did not hold regular jobs, according to two former track employees who asked to remain anonymous.

In his deposition with Notinger, Sullivan indicates that he used a portion of the $650,000 that he took from the track to correct accounting errors.

Sullivan said the track’s vice president of operations, whom Sullivan appointed to run the company for a stint in 2005, had a gambling problem and used company money to fuel his addiction.

“When I had to let him go I went back in and the accounting was a wreck and I set about rebuilding it,” he told Notinger.

One of the former track employees wrote in an e-mail that Sullivan “representing himself to be ‘the cavalry’ riding back in to put (Hinsdale Greyhound Park) back in operating order after less than a year of mismanagement is bull crap. Joe never stopped controlling operations at HGP, he just hid in the shadows.”

Meanwhile, Bird said the track’s creditors may have gotten a raw deal because the bankruptcy trustee system is flawed. He said trustees have a financial incentive in the outcome of Chapter 7 cases in which assets are available to liquidate, which rarely happens.

Trustees receive a percentage of the funds they gather for the bankruptcy estate based on a sliding scale that ranges from 25 percent for the first $5,000, 10 percent for the next $45,000, 5 percent for the next $950,000 and 3 percent of the balance. They can also be paid for legal services.

The amount of Askenaizer’s payout was unclear and he did not return a phone message before press time today. An attempt to reach Notinger was also unsuccessful.

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By PHILLIP BANTZ
Sentinel Staff

The Keene Sentinel: February 21, 2010

A Portsmouth lawyer has joined the effort to overturn a kidnapping conviction against Brian R. Chevalier, a Merrimack man who has been in prison since the conclusion of his 2004 trial in Cheshire County.

Justin Nadeau, who last year won a landmark state case that paved the way for grandparents seeking visitation rights with their grandchildren, has taken Chevalier’s case pro bono.

Nadeau wants a judge to set aside Chevalier’s kidnapping conviction and hold another trial on the charge.

He argued during a hearing Thursday at Coos County Superior Court — the case is being heard in Coos because Chevalier is imprisoned there — that he has evidence that will prove Chevalier’s innocence.

If Judge Peter Bornstein declines to give Chevalier, 43, a second trial, Nadeau could take his argument to the federal level at U.S. District Court in Concord.

“This can definitely end right here in state court,” he said. “We’re hoping.”

A former Keene police officer, state Rep. Dudley “Dan” Dumaine, R-Auburn, and Justin M. Healy, a retired N.H. State Police lieutenant, also believe Chevalier is innocent. They say the statement that Chevalier’s accuser, an ex-girlfriend, gave to police doesn’t add up.

She wrote that Chevalier ambushed her inside her Jaffrey home, then held her hostage for 21 hours while he threatened and sexually assaulted her.

Her name is being withheld because The Sentinel does not identify alleged victims of sexual abuse. Attempts to contact her have been unsuccessful.

Chevalier was tried on 11 charges ranging from aggravated sexual assault to criminal threatening, burglary and kidnapping.

After deliberating for two days, a jury acquitted Chevalier of every charge but kidnapping. Because Chevalier had prior convictions for property crimes, he qualified for an enhanced prison sentence and received 10 to 30 years.

Chevalier’s lead public defender, Hampton W. Howard, had argued at trial that Chevalier’s ex-girlfriend concocted the rape and kidnapping story. He said the woman panicked when her estranged husband and young daughter walked in on her and Chevalier the morning after they spent the night together.

The woman feared she’d lose custody of her daughter if her husband brought up her infidelity during divorce proceedings, so she lied about her relationship with Chevalier to protect her own interests, Howard said in court.

Dumaine and Healy also concluded that she concocted the rape and kidnapping story after analyzing the written statement she gave to police after the incident. They used a linguistic polygraph test known as Scientific Content Analysis, or SCAN, to study the statement.

Healy trains local, state and federal law enforcement officials to use the technique. He was teaching a seminar in Boston when a police officer brought Chevalier’s ex-girlfriend’s written statement to class.

Healy used the document, which did not identify Chevalier or his ex-girlfriend, as an example of a blatantly deceptive statement. Healy found that the writer was inconsistent in her retelling of the incident and she used language that indicated she was not a victim.

Dumaine, a former longtime Keene police officer, enrolled in one of Healy’s seminars and, after seeing the statement, convinced Healy to track down Chevalier.

Nadeau said he trusts the SCAN technique and hopes a judge will allow Dumaine and Healy to testify about their findings if Chevalier gets a new trial.

Nadeau also wants to introduce the ex-girlfriend’s phone records — evidence that, like the statement analysis, was not presented during the first trial.

Nadeau said Chevalier’s ex-girlfriend testified that Chevalier kept her from answering the home phone and ordered her to play back any messages that were left on her answering machine.

She said she received several calls between 5:30 and 9 p.m., and each call made Chevalier more agitated because the caller kept hanging up without leaving a message, according to Nadeau.

She said Chevalier threatened to kill her if she didn’t tell him who was calling, and he dialed *69 in an attempt to identify the caller, Nadeau said.

But phone records show no calls were made to the ex-girlfriend’s house during the 31/2–hour timeframe she testified about, Nadeau said.

He said Howard, Chevalier’s former public defender, should have presented the phone records during trial to contradict the ex-girlfriend’s statements and “impeach her credibility.”

“This newly discovered evidence, the SCAN analysis and the phone records, would have had a profound effect on the jury and would have resulted in acquittal at trial,” Nadeau said.

Howard has retired from the public defender office. He did not return a message left at his residence.

In a March 2009 interview with The Sentinel, Chevalier proclaimed his innocence and said he was desperate to find a lawyer to fight for him.

“I’m not claiming to be an angel. I’ve done a lot of things. I’ve been in prison before,” he said. “But I did not do this. I did not rape or kidnap anyone. I’m just hoping that somebody will take another look at this case.”

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By PHILLIP BANTZ
Sentinel Staff

The Keene Sentinel: February 25, 2010

A proposed settlement has been reached in the Hinsdale Greyhound Park bankruptcy case that would help reimburse creditors and forgive the former track’s president for an alleged fraudulent property transfer prior to the Chapter 7 filing.

The track closed in December 2008, leaving dozens of racing bettors with an estimated $500,000 in their wagering accounts holding the bag. The track also owes more than $1 million to additional creditors, including other tracks it did business with.

The proposal calls for drawing $400,000 from an escrow account and another $400,000 from the sale of the property at and around the now-defunct track, which includes 106 acres. The $800,000 will be combined with another $286,120 the bankruptcy estate has from the track’s other liquidated assets.

This would give bankruptcy trustee Michael S. Askenaizer $1,086,120 to help repay the track’s debts. A trustee is a third party appointed by the court to administer a debtor’s bankruptcy estate.

“The trustee believes, in his best business judgment, that this settlement with the settling parties is fair and reasonable and in the best interests of the bankruptcy estate,” Askenaizer wrote in the proposal.

As part of the proposed settlement, Askenaizer would agree to not sue Sullivan and his estate for an alleged fraudulent transfer of property to a real estate holding company, subordination of mortgages and a $650,000 promissory note former track president Joseph E. Sullivan 3rd took from the track when it was operational.

Askenaizer wrote in the proposal that while sufficient evidence exists to file and possibly win a lawsuit against Sullivan, doing so would “involve the expenditure of lots of attorneys’ fees and expert fees in order to prevail.”

And even if the lawsuit were successful, Askenaizer said he would have to sell the track’s remaining property, pay off a $2.3 million debt to Sullivan’s business partner Carl B. Thomas and cover property taxes and other costs from carrying the property.

“Given the depressed values of the commercial real estate market in southwestern New Hampshire, where the remaining property is located, the trustee believes refusing this settlement offer and litigating instead is not in the best interests of the estate,” Askenaizer wrote.

Before the bankruptcy filing, Sullivan sold the track’s property and buildings for $3.3 million to Hinsdale Real Estate LLC, a holding company he created with Thomas of Spofford-based Thomas Construction Corp.

The holding company later sold 23 acres to Wal-Mart Stores Inc. for $2.1 million, with $500,000 going into the bankruptcy estate escrow account that, under the settlement proposal, could be used to repay creditors. The rest of the proceeds paid off a portion of Sullivan’s debt from property taxes and loans.

Sullivan still owes Thomas about $2.3 million. The debt is tied to two loans for a total of $2.1 million, plus interest, that Thomas gave to Sullivan. The loans are secured to mortgages against the track property.

The settlement proposal gives Hinsdale Real Estate two years to sell the remaining track property, about 83 acres. The bankruptcy estate will take 65 percent of the sale proceeds until it receives $400,000. The other 35 percent will be used to pay Thomas for the mortgages.

The remaining $100,000 from the escrow account tied to the Wal-Mart land deal will be used to pay outstanding property taxes.

If the land doesn’t sell within two years, the property would go to auction.

A separate agreement under the settlement proposal would give Thomas full control over Hinsdale Real Estate. He plans to purchase Sullivan’s 75 percent interest in the company for $500,000, according to Askenaizer.

Askenaizer and Sullivan’s bankruptcy attorney could not be reached for comment. Sullivan has declined to answer questions about the case.

A hearing on the settlement proposal is slated for March 11 at U.S. Bankruptcy Court in Manchester.

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