Janet Difiore.

The Court Report
By Richard Blassberg

An Actual Depraved Indifference Murder Case
Westchester County Courthouse, White Plains
Acting Supreme Court Justice Robert Neary Presiding

Last Tuesday Defendant Anthony Burton, whose extremely reckless act with a handgun claimed the life of Jessica Santos, 19, a beautiful, vibrant, college student August 27th, last year, appeared at trial before Acting Supreme Court Justice Robert Neary on a three-count indictment, charging him with Murder in the Second Degree, as Depraved Indifference Murder, carrying a sentence of 25 years to life. Jessica, a second-year student at the University of New Haven, had packed and was preparing to return to school when she drove to Yonkers in response to a friend’s desire to say goodbye.

Represented by Attorney Barry Warhit, of White Plains, Burton, who confessed to having fired the shot from the back seat of a moving car, that claimed Ms. Santos’ life, is contending that he was merely firing at the sign above the deli/grocery at the corner of Beech and Poplar Streets in the Nodine Hill section of Yonkers. Ms. Santos was struck in the upper chest by one of six bullets fired from a 25-caliber handgun, causing massive blood loss and death.

The first witness called by Assistant District Attorney Robert Prisco, was Yonkers Police Officer Zielinski, who had been on the job approximately six months when he was called to the scene at around 10pm August 27, 2006. Arriving at the corner of Beech and Poplar, Zielinski testified, “I saw Jessica Santos lying on the ground.” Asked what he did at the scene, Zielinski replied, “I helped tape off the crime
scene, and accompanied Ms. Santos to the hospital.”

ADA Prisco inquired, “What do you recall occurring?”

Officer Zielinski responded, “Emergency medical personnel were attempting to keep her alive.” He went on to describe for the jury how he had ridden with Santos and the emergency workers to St. Joseph’s Medical Center, remaining close to her in the emergency room as doctors and nurses struggled in vain to keep her alive, ultimately declaring her dead at 10:55pm. Following Zielinski’s direct testimony, Defense Attorney Warhit did not seek cross-examination.

The next Prosecution witness was recently retired Yonkers Police Of-ficer Mario Mazzi, who spent the last sixteen years of his twenty-eight year police career working in the Criminal Identification Unit of the Yonkers Police Department processing crime scenes.

ADA Prisco, having quickly established that Mazzi had been called to the crime scene immediately following the incident, asked Mazzi, “What did you do upon arrival?” Mazzi responded, “We did a walkthrough of the crime scene.” He then explained those activities normally associated with a walkthrough for the purpose of collecting evidence and information.

Given the fact that the crime had occurred well after dark, Prisco asked, “While you were walking through, were you assisted by any lighting in your search?” Mazzi explained that, in addition to hand-held flashlights, he and his assistant were aided by a Civil Defense lighting truck used by the Yonkers Police Department under nighttime conditions.

Prisco quickly brought the witness to a discussion of his discovery of five 25-caliber shell casings found strewn on the roadway of Beech Street at varied distances from the intersection of Poplar, and varied distances from the curb. After lengthy discussion regarding the shell casings Prisco introduced the fact that Mazzi had not only produced still photos of the crime scene, but also had videotaped it as well.

Judge Neary, recognizing what he referred to as having been “important, but tedious testimony,” granted the jury a brief break before the Prosecution’s presentation of Mazzi’s videotape. Returning from the break, Prisco took advantage of the opportunity, as the tape played, to get former police officer Mazzi to describe the neighborhood immediately surrounding the crime scene. The witness responded,
as if on cue, “It’s residential; two- and three-family homes.”

Analysis:

This description of the neighborhood extracted by ADA Prisco was a tactical move intended for use later in the trial by the Prosecution, speci-fically in its closing argument, when attempting to persuade the jury that the crime committed by Anthony Burton was, indeed, a Depraved Indifference Murder, and not a Reckless Manslaughter, which would carry a significantly lighter sentence. By establishing the residential character, and population density, the Prosecution was laying the foundation for the notion that the Defendant should clearly have foreseen the high probability that by firing a weapon into the area into which he fired it would likely produce grievous injury and/or even death to somebody, as in fact it did. Essentially, the Prosecution was attempting to demonstrate a level of recklessness consistent with “Depraved Indifference” as to the possible outcome of his own conduct by the Defendant.