North Country Gazette

Porco Appeal To Be Heard Monday In Brooklyn

Posted on Sunday, 29 of November , 2009 at 8:29 pm

ALBANY—In December, 2006, former Delmar resident Christopher Porco, then 23, was sentenced to two consecutive terms of 25 years to life for the axe murder of his father, law clerk Peter Porco and attempted murder of his mother, Joan Porco in November 2004 at their Delmar home.

Now, three years later, his attorneys Terence Kindlon and Kathy Manley of Albany will argue before the Second Department of State Supreme Court in Brooklyn on Monday, seeking to overturn the conviction, arguing that his client did not get a fair trial.

The case is being heard in the Second Department because Peter Porco was a law clerk in the Third Department where the appeal would normally be heard.

An Orange County jury convicted Porco in August, 2008 following a high profile trial which lasted for 23 days over seven weeks.

Porco is serving his sentence at the Clinton Correctional Facility in Dannemora.

Porco was found guilty of bludgeoning to death his law clerk father, Peter, 52 and attempting to murder his mother, Joan, resulting in serious, disfiguring injuries. At the time of the attack, Porco was a student at the University of Rochester.

The case had been transferred to Orange County after Kindlon had successfully argued that pre-trial publicity had tainted the Albany jury pool and Porco’s right to a fair trial.

Kindlon argues that testimony by a detective involving a head nod allegedly made by Joan Porco the night of the assaults never should have been admitted at trial as it was inadmissible hearsay.

A detective had testified that before being transported to the hospital, when asked by a Bethlehem detective if Christopher Porco was responsible for the attack, Joan Porco had nodded her head yes.

Kinlon argues that such hearsay denied his client the right to confront the witness against him under the confrontation clause of the U.S. Constitution.  His mother did not testify at trial because she has no recollection of the incident.

She has since denied that Christopher had anything to do with the murder of his father or the attack on her and remained supportive of her son throughout the trial, attending the proceedings.

Kindlon says that “the damage to her brain and eyes and face and skull is so significant, she would have been incapable of comprehending what she had seen”.  He says that “she was there, but her memory wasn’t there”.

In the preliminary statement of the appeal, it is stated that ”The prosecution was based almost entirely on circumstantial evidence. Were it not for the improper introduction of the nodding evidence, the court would have given a circumstantial evidence jury instruction that would have applied to all of the proof.”

Kindlon argues that Judge Jeffrey Berry improperly allowed the prosecution tointroduce Joan Porco’s testimony at trial.  During the trial, he had moved for a mistrial concerning the issue which was denied by Berry.

Special prosecutor Christopher Horn is representing the Albany County district attorney’s office.

The defense had been sharply critical of the investigation conducted by the Bethlehem police and said that they had immediately focused on Christopher, ignoring other possible suspects.

Kindlon also argues that the judge allowed the jury to hear prejudicial testimony about an alleged prior bad act by Porco and his alleged involvement in a prior burglary at the Porco residence.

Kindlon said that by allowing that testimony, the prosecution improperly suggested that Porco had a propensity to commit a crime.  “In the American court you can’t introduce propensity evidence.  It’s simply against the rules”, he said.

 Horn disagrees and says admission of the testimony about the burglary wasn’t prejudicial because it showed who had done it.  He also says the head nod wasn’t crucial to the case.   11-29-09

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Category: Constitution, Courts, Crime, New York State

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