Harvey Weinstein. Photo: Mark Lennihan/AP

A Manhattan state court judge has blocked Harvey Weinstein's bid to dismiss a new indictment charging the disgraced movie mogul with revised charges of predatory sexual assault ahead of a planned Jan. 6 trial.

New York Supreme Court Justice James M. Burke on Tuesday denied Weinstein's motions to dismiss two counts of predatory sexual sexual assault on constitutional grounds and said that an attempt by Weinstein's lawyers to toss the new indictment was "factually and legally flawed."

Weinstein had argued that the Manhattan District Attorney's Office did not obtain permission from the court before presenting evidence to a grand jury, which led to the new indictment in late August.

According to the Associated Press, prosecutors said the at the time that the new indictment was needed to include evidence from actress Annabella Sciorra, who claims that Weinstein had raped her inside her Manhattan apartment after she starred in a movie for his film studio in 1993.

Sciorra was not added to the the case as a victim because the alleged assault fell outside the state statute of limitations, but prosecutors wanted to use her testimony to establish that Weinstein had engaged in a pattern of assaulting women—a necessary component of the predatory sexual assault charges.

An original 2018 indictment and the new one were consolidated to include five counts of felony sex crimes, including the two counts of predatory sexual assault, criminal sexual act in the third degree, first-degree rape and third-degree rape.

Weinstein has pleaded not guilty and denies all accusations of forced sex.

Weinstein's defense team argued that the court had "effectively" dismissed the predatory sexual assault charges in the 2018 indictment, thus requiring prosecutors to get authorization from the court before presenting evidence in front of another grand jury.

But Burke said his Aug. 8 ruling did nothing of the sort: "There is no reading of that decision which held that those counts were dismissed," he said.

"Therefore, there was no legal bar to the representation of the predatory sexual assault charges to the grand jury that returned the [new indictment] and such presentation was entirely proper," Burke wrote in a 12-page opinion dated Nov. 26.

The ruling was announced Wednesday by a spokesman for Manhattan DA Cyrus Vance Jr.

A spokesman for Weinstein said Weinstein's lawyers "are reviewing options before saying or doing anything."

Weinstein was represented in the matter by Donna Rotunno of the Law Offices of Rotunno & Giralamo, based in Chicago.

Enacted in 2006, the crime of predatory sexual assault carries a possible life sentence. The defense argued that including an allegations from 13 years before the law went into effect violated the U.S. Constitution's "ex post facto clause."

Burke, however, found not constitutional violations because Weinstein was on notice as of 2006 that if he committed any further alleged crimes, he would be subject to enhanced penalties under the New York's predatory sexual assault law.

The judge also knocked out a number of other pretrial defense motions, including Weinstein's request to allow Deborah Davis, a University of Nevada at Reno psychologist, to testify about certain issues related to sexual assault.

The defense wanted to elicit testimony from Davis about how sexual trauma can lead to the creation of false memories, as well as the notion of "voluntary unwanted sex," a phenomenon they described as "sex that is undesired, but that the person chooses to engage in."

Burke allowed Davis to testify about the "general operation of human memory, including how memory works," but said  the "voluntary unwanted sex" theory and other issues would be off limits.

"Of course, the defense will need to lay a proper foundation establishing the qualifications of the expert before any particular witness on the permitted subjects will be allowed to testify," he said. "Further the court notes that should any of these expert witnesses be duplicative or beyond the areas which have been permitted, such witness's testimony will be restricted by the court."

The ruling also blocked the release of the identities of two witnesses who are expected to testify against Weinstein, as well as a motion to suppress evidence obtained from a search warrant for three email accounts.

Burke did allow the defense to access the minutes of grand jury proceedings.

 

The Associated Press contributed reporting to this story.

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