The state’s highest court heard arguments this afternoon from Christopher Porco’s attorney, who is seeking a new trial for his client who’s in prison for murdering his father and attempting to murder his mother.
Defense attorney Terence Kindlon and Assistant District Attorney Christopher Horn both spoke for 20 minutes before a panel of six judges. Kindlon is arguing Porco deserves a new trial because in his 2006 conviction the jury was allowed to hear testimony from police that Joan Porco, his badly injured mother, had identified Christopher as the assailant with a head nod in response to questions from police.
By the time of the trial, Joan Porco claimed no memory of the evening and professed her son’s innocence. A lower court heard the same appeal months ago and ruled that while the “excited utterance” should not have been admitted in the trial, the body of evidence against Porco was large enough it wouldn’t have swayed the outcome.
“I would submit that the appellate division was simply wrong,” said Kindlon at the hearing.
He argued that since Joan Porco had no memory of the night of the 2004 attack due to her extensive injuries, her son was denied his constitutional right to face his accuser.
“I would give anything to be able to cross examine Joan Porco because we don’t know what she meant” by her nod,” Kindlon said.
Horn, on the other hand, said the head nod is fair game because Joan Porco was available to testify at the trial. He also downplayed the importance of the nod, pointing to other evidence the prosecution presented, including a Thruway toll ticket with Porco’s DNA on it. Porco was said to have traveled from Rochester to Bethlehem to commit the crime.
But Judge Eugene Pigott wondered about the lower court’s determination that the nod was of little consequence in the trial.
“When a mother accuses a son of a crime, it’s huge. It’s everything you need,” he said to Horn.
Judge Robert Smith wondered if Joan Porco’s present lack of memory would be enough to exclude her actions on the night of the attack.
“Isn’t that what juries are for?” he asked.
The justices also discussed at length with the two attorneys whether police had the proper cause to question Joan Porco in the first place. Horn said it was clearly an emergency situation and drove police to question her as she lay gravely wounded.
He also defended the nod’s classification as an “excited utterance,” saying there was not way Joan Porco could have done anything else.
“I don’t think there’s a way to stop being excited as you’re getting hit in the head with an ax repeatedly,” he said. “You cannot make a calm and reflected utterance under those circumstances.”
Kindlon argued there’s no way of knowing what Joan Porco’s nod meant. She could have heard Christopher’s name and wanted him to be summoned to comfort her, he said. Police testified that she shook her head “no” when asked if her other son, who was stationed at sea at the time, had committed the attack.
The court is expected to render a decision during its next session in October. Porco was not allowed in court today as he’s serving a 46-year-to-life prison sentence.
Judge Victoria Graffeo recused herself from the case. The court does not issue explanations for recusals.
