A Buffalo man who was convicted twice in a 2005 house break-in and was successful in getting the verdicts overturned each time on appeal has pleaded guilty, avoiding a third trial.
Richard Morgan, 54, of West Avenue, pleaded guilty Friday to attempted second-degree burglary in the Sept. 2, 2005, break-in on Bird Avenue.
Morgan, a persistent violent felony offender with a lengthy record of criminal convictions spanning three decades and four states, faces a maximum prison term of 25 years to life when he is sentenced May 30 by State Supreme Court Justice M. William Boller, according to Erie County District Attorney Frank A. Sedita III.
Morgan was first convicted in 2006 for stealing some blank checks, DVDs, a laptop computer and a video game device and games during the break-in, prosecutors said. He forged and cashed the checks for a few hundred dollars each to finance his drug habit, prosecutors said.
State Supreme Court Justice Penny M. Wolfgang sentenced him to 20 years to life in prison after she found him to be a persistent felon.
He appealed the conviction, and the Appellate Division of State Supreme Court, based in Rochester, overturned it in 2010, citing a mistake in jury selection.
But the appellate court also chided the prosecutor at the first trial “for improperly shifting the burden of proof onto defendant and in improperly vouching for the credibility of the (prosecution) witnesses” during her closing argument.
At his second trial, Morgan was convicted of second-degree burglary, third-degree grand larceny, a forged-check count and drug possession, and was again sentenced to 20 years to life in prison.
He appealed, and the appellate court last November overturned the conviction, this time citing the closing argument from a different prosecutor who made some of the same comments the appellate judges objected to from the first trial, as well as additional comments they found to be improper.
The appellate court said the prosecutor denigrated the defense “by repeatedly characterizing the defense as ‘noise,’ ‘nonsense’ and a ‘distraction,’ and arguing that defense counsel was fabricating facts and attempting to mislead the jury.”
It found that the prosecutor misstated evidence and the law, and made an inappropriate guilt-by-association argument.
The appellate court also dismissed the grand larceny charge because it found insufficient evidence that the value of the stolen property exceeded $3,000 and the drug possession charge because, while it found the evidence legally sufficient to establish that Morgan possessed a controlled substance on Sept. 27, 2005, the date of his arrest, the indictment did not charge him with drug possession on that date.
The court ordered a new trial on the burglary and forged-check counts.