MAYVILLE - The Fourth Appellate Division in Rochester has overturned the conviction of Gregory Pattison, who was sentenced to life in prison without the possibility of parole for killing two men in Gerry in 2005.
If prosecutors can't get that decision overturned, they'll either have to let Pattison off the hook or retry him at taxpayers' expense even as the Chautauqua County District Attorney's Office is overwhelmed with a record number of homicide cases.
District Attorney David Foley said he intends to appeal the decision to the New York Court of Appeals, the state's highest court.
"In other words, we are going to exhaust our appeals avenues before we do anything else," said Foley, who didn't take office until after the Pattison trial was already under way.
The Fourth Appellate Division overturned Pattison's conviction because of a technicality that could ultimately cost prosecutors the case. If the Court of Appeals upholds the Appellate Division's ruling, there is no guarantee prosecutors can even win another trial because so much time has passed.
The trial dragged on for weeks in February and March 2005 before Pattison was convicted of one count each of first-degree murder, second-degree murder and second-degree conspiracy for the double murder.
At the time, prosecutors described Pattison as a hired thug who murdered Richard Alicea Jr., 19 at the time of his death, and Johnny Houston, 22 at the time of his death, and left their bodies on a rural road in the town of Gerry on May 23, 2001.
DOUBLE MURDER
According to the story that unfolded during the trial, Daniel Diaz and Aaron Pike, two drug dealers from Jamestown, hired Pattison to murder Alicea since Alicea stole more than $150,000 worth of cash and drugs from them.
Both Pattison and Pike were sentenced side-by-side to life in prison without the possibility of parole. Diaz, meanwhile, pleaded guilty to two counts of first-degree manslaughter and was sentenced to 35 years to life.
After the trial ended, Pattison was also convicted in federal court beside Pike for marijuana trafficking. According to the Federal Bureau of Prisons, Pattison is incarcerated at a federal penitentiary in Jonesville, Va. and is not scheduled to be released until 2028.
Because of the drug charge, Pattison would remain behind bars even if prosecutors fail to successfully retry him for the 2001 slayings of Alicea and Houston. The difference, though, is that Pattison would eventually be released.
The fact that Pattison will be in federal prison for years to come at least buys prosecutors some time to retry the case if the Court of Appeals upholds the lower court's ruling.
A TECHNICALITY
Before Pattison was even indicted for the double murder, he made it known to prosecutors that he may want to testify before the grand jury. By law, prosecutors were obligated to notify Pattison of the date and time the grand jury was scheduled to convene.
According to Foley, there is evidence that Pattison's attorney received verbal notification from prosecutors and earlier this year, Chautauqua County Judge John Ward ruled that Pattison did receive sufficient notification of the upcoming grand jury proceedings.
But confusing the matter were the years that have passed and the three sets of court-appointed defense attorneys Pattison went through, according to lawyers familiar with the case. On June 5, The Fourth Appellate Division overturned Ward's ruling, saying there wasn't sufficient evidence that Pattison had been properly notified and ordering a brand new trial.
Foley didn't take office until April 2005 when it was too late to do anything about the grand jury issue. According to Foley, before the trial began, prosecutors could have filed a superseding indictment, a procedure that would not have affected the upcoming trial and would have eliminated Pattison's chance of successfully appealing his conviction on the grounds that he wasn't notified.
Foley said that's precisely what he did for Diaz since that case hadn't gone to trial yet when he took office and there was some question as to whether Diaz received proper notification of the upcoming grand jury proceedings as well.
James Subjack, who served as district attorney before Foley took office, condemned the appellate division's ruling. Subjack believes it is irrefutable that Pattison was notified of the upcoming grand jury proceedings and that the appellate division was essentially legislating from the bench through its ruling, wanting to toughen the rules about grand jury notifications so that only written notice suffices.
Subjack is hopeful Foley will succeed in appealing the ruling to the Court of Appeals.
"I think this is a terrible decision that needs to be overturned," Subjack said.
HOMICIDE CASES
It could be some time before the Court of Appeals decides whether to uphold the lower court's ruling overturning Pattison's conviction. A decision might not be made until after Election Day, when Foley, who is running for re-election on the Republican ticket, will face off against Jamestown attorney Ned Barone, who is challenging him on the Democratic ticket.
If the Fourth Appellate Division's ruling stands, the winner of this year's election will have to decide whether to retry Pattison, which could be a costly endeavor. It could also be difficult since there is no guarantee that witnesses, whose testimony was crucial during the trial, would be willing to testify again or would survive cross-examination after so many years have passed.
With Pattison in prison for many years to come, the district attorney's office at least has some time to decide what to do and to potentially to rebuild the case against Pattison. What makes it difficult, says Foley, is the number of homicide cases that are currently in the works.
According to Foley, there are currently five homicide cases at various stages being handled by his office and prosecutors have handled 15 or 16 homicide cases since he took over in 2005 - a record number in a county that usually sees as few as one homicide case every 18 to 24 months.
What makes it an issue, though, is the fact that Pattison is scheduled to be released from prison in his late 50s when the double-murder conviction would have put him away for life.
"Since he got life without parole and it was consecutive, it is a bit of an issue for me," Foley said.