Daily Archives: February 28, 2011

Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals

Written by David Szalda, Albany Government Law Review Member

 

Introduction

On the morning of November 15, 2004, the quiet Albany suburb of Delmar, N.Y. awoke to the news of the murder and attempted murder of Peter and Joan Porco.[1] Sometime in the night, while the two were sleeping an intruder entered their home, and savagely attacked them with an ax.[2] Hours later, police investigators and paramedics arrived at the Porco residence to discover Mr. Porco murdered and Mrs. Porco in her bed barely surviving her traumatic head injuries.[3] Investigator Christopher Bowdish began asking questions of the attack.[4] Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband.[5] As Investigator Bowdish and the paramedics would later testify Mrs. Porco responded with an up-and-down ‘nod,’ signaling, yes.[6]

Relying on the ‘nod’ and an abundance of circumstantial evidence the jury convicted the victim’s son, Christopher Porco, for the murder of his father and the attempted murder of his mother.[7] Porco’s appeal to the Second Department was premised among several legal errors, most notably the trial court’s error in admitting the police detectives and paramedics testimony as to Mrs. Porco’s nod as an excited utterance.[8] Upon appeal, the Second Department disagreed, and found the nod inadmissible hearsay.  However, the court held that error harmless because since Mrs. Porco was ‘available’ to testify, Porco’s Sixth Amendment right to confrontation was not violated.[9] On September 21, 2010, the New York Court of Appeals granted Porco’s defense motion for leave to appeal the Second Department’s holdings.[10]

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