LOCKPORT – Niagara County Judge Matthew J. Murphy III said he will announce Oct. 14 whether he will overturn the conviction of a Niagara Falls man convicted of trying to kill another man in broad daylight on Highland Avenue in the Falls last year.
Monday, defense attorney Frank LoTempio III, who took over representation for Joachim S. Sylvester after the conviction, asserted that new evidence – a sworn affidavit from the victim saying he didn’t think Sylvester was the shooter – should be grounds for a new trial.
Deputy District Attorney Doreen M. Hoffmann said the opinion of Larry Miller, the purported target, doesn’t matter, because Sylvester was convicted even though Miller went into hiding during the trial.
He didn’t show up to testify, and Falls police were unable to find him to execute a material witness warrant.
The April 17, 2014, crime was caught on videotape taken by surveillance cameras mounted outside a Highland Avenue store, and witnesses identified Miller as the man running away and jumping into a sport utility vehicle, which crashed into a parked car as it sped away.
Sylvester was identified as the shooter because the orange-soled sneakers he was wearing matched those worn by a man caught on tape as he walked across a parking lot at a car rental office later on the day of the shooting, as Sylvester turned in a vehicle that matched that in which the shooter was seen in the crime scene video.
The jury played the tape over and over again in the courtroom before voting Sylvester guilty.
He faces up to 40 years in prison, but Murphy said he won’t sentence Sylvester on Oct. 14 if he lets the conviction stand. Rather, he will choose another date.
The defense attorney at last October’s trial, Angelo Musitano, testified at a hearing July 30 that he didn’t try to track down Miller because he thought, incorrectly, that there was an order of protection for him.
Also, he said he didn’t think he could find Miller if the police couldn’t.
LoTempio said Miller “was in the hall” during the July 30 hearing, but he didn’t call him to the stand. Hoffmann said she hadn’t been aware of Miller’s presence.
Hoffmann said Sylvester, 39, had enough money to post a $150,000 bail bond, so he could have used that money to hire a private investigator to find Miller before the trial. She noted that Sylvester “visited” every other witness.
LoTempio said talking to Miller “probably would have resulted in a charge of witness tampering, knowing this DA’s office.”
Hoffmann said Miller’s new affidavit saying he “didn’t have a beef” with Sylvester contradicts what Miller told Falls Detective Thomas G. Ewing after the shooting, in which Miller was unhurt, and also contradicts the video evidence.