Thursday, August 2, 2007

Janet Difiore.

The Court Report
By Richard Blassberg

Depraved Indifference Murder Trial Continues
Westchester County Courthouse, White Plains
Acting Supreme Court Justice Robert Neary Presiding

Last Tuesday morning, following several days of recess, the trial of Anthony Burton, 18, of Yonkers, for the Second Degree Murder, as Depraved Indifference Murder, of Jessica Santos, in a drive-by shooting incident, August 27th of last year, resumed before Judge Robert Neary. Prior to the jury’s entrance into the courtroom, Defense Attorney Barry Warhit made a motion requesting that the jury be allowed to watch the videotape of his client’s statement to police, his confession, without the benefit of printed transcripts, the first time.

Warhit explained that he wanted the jurors, as he put it, “to get the full affect of my client and the police,” without the distraction of attempting to read the transcript at the same time.

Predictably, Assistant District Attorney Robert Prisco objected to Warhit’s proposal, and prevailed. Neary denied the motion, stating, “For now I’m going to deny the Defense request. But, if I perceive some difficulty viewing the tape, and reading the transcript, I might change my mind.”

The Prosecution called New York City Police Officer Carlos J. Lopez, of the 47th Precinct in the northeast Bronx, to the stand. Officer Lopez, under direct examination, detailed the circumstances under which he had come in contact with Defendant Burton the day after the shooting. He explained that he and his partner, in a marked NYPD patrol car, had approached the Defendant standing amongst several other male youths on Eli Avenue, near Boston Post Road in the Bronx, in response to a radio dispatch that had described, “a male black, wearing a white hat, black T-shirt, and blue jeans.”

The officer described having approached Burton, patting him down, finding only a cell phone, and obtaining his
pedigree. He told the jury, “We got on the radio and gathered more information.” ADA Prisco responded, “You mentioned that the intial call mentioned an incident in Yonkers the night before.”

Officer Lopez answered, “My partner asked if he knew of any incident that occurred in Yonkers the night before. He said, No.”

ADA Prisco, “What happened next?”

Officer Lopez, “I told him he was the victim of an identity theft scam, and that he needed to come down to the precinct with us.”

ADA Prisco, “What happened next?”

Officer Lopez, “He agreed to come. We drove with him, uncuffed, in the back of the police car to the 47th Precinct.

Defense Attorney Warhit then cross-examined the witness. He asked the of-ficer, “Mr. Burton did not attempt to run away?” Lopez responded, “Correct.”

Warhit asked, “He came over when you called to him?”

Again Officer Lopez responded, “Correct.”

Warhit went on, “He even consented to being patted down?”

Lopez answered, “That’s correct.”

Warhit then asked, “Would you characterize him as cooperative?”

Lopez again answered, “That’s correct.”

The Prosecution then put Yonkers Detective Andrew Guski, who had gone to the 47th Precinct to arrest and retrieve Burton, on the witness stand. ADA Prisco drew from this witness the essential fact that Guski, together with his partner Detctive Pellegrino, had gotten no response from the Defendant upon placing him under arrest, and further, that there had been no conversation with him during the twenty-minute ride to Yonkers Police Headquarters.

Attorney Warhit took a moment to briefly cross-examine this witness, asking, “You identified yourselves to Mr. Burton?” Guski responded, “We told him we were detectives, and flashed our badges.”

ADA Prisco next brought Yonkers Detective Vincent Starkey to the witness stand. Starkey, who was the lead detective assigned to the case, and, who, together with his partner Detective McCabe conducted the interrogations and ultimate videotaping of Anthony Burton, was examined in great detail, by Mr. Prisco. He related that for two separate interrogations that he claimed the Defendant consented to, without requesting legal representation, after being read his Miranda Rights, and signing off on them, Burton gave conflicting accounts of his whereabouts before, during, and after, the shooting.

Starkey told the jury that following the second interrogation he told the Defendant, “We don’t believe you in any
way, shape, or form, and you will be arrested and sent to prison.” Starkey said, “He then broke down and admitted the shooting.”

ADA Prisco drew out testimony from Starkey that Burton told him, “I was aiming for the grocery sign because I
didn’t want to hurt anybody.” He also elicited testimony that Detective McCabe had asked the Defendant, “Were there people standing on the street?” And, that Burton had answered, “Yeah” And he further testified that when McCabe asked, “How many people; a lot of people?” Burton again answered, “Yeah.”

Following this testimony and a brief break, the jury was shown the twenty minute videotaped confessional statement of Anthony Burton in the presence of Detectives Starkey and McCabe.


It was important for the purposes of the Prosecution to establish in evidence the fact that in firing the handgun out of a passing car window Mr. Burton was not intentionally shooting at anyone, given that he was not being charged with Intentional Murder, nor a lesser intentional crime such as Manslaughter. It was equally important to get the Defendant’s admission, into evidence, that he realized there were many people on the street in the area into which he had fired, thereby establishing the requisite threshold level of recklessness to sustain the elements of the crime of Depraved Indifference Murder. Toward those ends, the Prosecution would seem to have accomplished their objectives.

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