Appeals for freedom



ALBANY — Two-and-a-half years into a 25-year-to-life sentence, Erick Westervelt is pinning his hopes on an appeal.

Friday morning, his appeal was heard by an Appellate Division panel of judges, the middle level in the state’s three-tiered court system.

Westervelt was convicted of second-degree murder in 2005 and is serving his time at Dannemora, a maximum security prison in Clinton County.

Westervelt, who grew up in Guilderland and was living with his family on Salvia Lane, attending the University at Albany at the time of the murder, maintains his innocence.

He says he was illegally arrested and then forced into a false confession by the Bethlehem Police Department.

The Albany County District Attorney’s Office along with police claimed that jealousy drove Westervelt to murder Timothy Gray while Gray was living with Westervelt’s ex-girlfriend, Jessica Domery, in Delmar. The hatchet murder occurred five weeks before the highly publicized ax murder of Peter Porco; his son, Christopher Porco, was convicted of killing him and of bludgeoning his wife, Joan Porco, in their Delmar home.

Kindlon also represented Porco who is serving his term in Dannemora, too.

It took a jury nearly two days to convict Westervelt, who had confessed to the crime to Bethlehem Police. He later recanted his statements and said he was forced into a false confession.

Terence Kindlon, of the law firm Kindlon & Shanks, represented Westervelt at the appeal hearing while Westervelt’s parents and aunts sat quietly in the gallery and listened.
"In the written brief, there was extensive legal argument that the police coerced him"and detained him from lawyers," Kindlon told The Enterprise on Monday. "A whole hour was missing from the police interrogation."

Kindlon is arguing Westervelt’s appeal on three main points: a right-to-counsel violation; prosecutorial misconduct, and use of inadmissible evidence in trial — a letter that Westervelt wrote to Domery.

David Rossi, the assistant district attorney who prosecuted Westervelt, doesn’t believe a re-trial or a dismissal will be granted, he said earlier. Assistant District Attorney Christopher Horn, who specializes in appeal cases for the county, argued against the appeal on Friday.

Horn told the five judges that Westervelt was guilty and that the Bethlehem Police did their job without violating Westervelt’s rights.
"The defendant was aware of the circumstances surrounding the letter to his girlfriend," Horn told the judges on Friday. "He made three confessions to a murder."

Kindlon argued that the letter to Jessica Domery should never have been admitted in the first place. Westervelt began writing a letter to Domery while in the custody of Bethlehem Police and was interrupted in the middle of writing to be arraigned before a judge.

When Westervelt returned from the arraignment, Bethlehem Police took off his handcuffs and allowed him to continue writing, according to a video of the interrogation. The letter contained incriminating statements and was used as a confession by the prosecution during Westervelt’s 2005 trial.

Horn read an excerpt from the letter to the judges.
"I didn’t mean to hurt Tim as bad as I did. I hope he gets better"," Horn read, concluding, "That’s the whole ball of wax."

Kindlon said the letter shouldn’t have been used.
"The letter in question"the police officers let everyone believe that the letter was written before arraignment," Kindlon argued to the judges. "It wasn’t until trial it came out that it was [written] in the middle of arraignment."

Kindlon said that, even though police did not tell Westervelt to continue writing after he was arraigned, the instruction was implicit when they took off his handcuffs. Westervelt did not have an attorney present during his interrogation.
"I’ve been trying to get police to take their handcuffs off my clients for years now"and here, they just take them off," Kindlon told the judges. The judge questioned Horn on why Bethlehem Police took off the handcuffs.
Horn responded by saying that "no suggestions" were made by the police to continue writing and that Westervelt was aware of his actions. Horn said that Westervelt’s post-arraignment writing, which could be easily identified because it was on the back of the sheet he was using, contained the confession that he had brutally assaulted Gray.

Gray died five days after being attacked.
Justice Anthony J. Carpinello told Horn that he didn’t "know why [police] took off the handcuffs," but that by doing so, police implicitly suggested Westervelt continue writing.
Kindlon said that Rossi used information that wasn’t disclosed or shared during his closing statements at the trial, constituting prosecutorial misconduct, and that the decision of the court could leave "a big range of possibilities."

The Appellate Division could uphold Westervelt’s conviction; find the sentence excessive; find something wrong in how the case was handled; reverse the decision and hold a re-trial; or dismiss the conviction altogether, Kindlon said.

A decision is usually made in about four weeks, he concluded.