A state appeals court Friday granted a Buffalo man a new trial on attempted murder charges in a 1986 baseball bat and knife attack on his ex-wife and criticized the judge who handled the case three years ago.
The five-member Appellate Division of State Supreme Court in Rochester unanimously overturned Edward Zawistowski's February 1987 conviction and said it found it "difficult to comprehend why" Justice Julian F. Kubiniec didn't just overturn the conviction on his own because of his errors.
The appeals court said Kubiniec "overstepped" his bounds as a judge "and assumed the role of a prosecutor by engaging in excessive examination of witnesses" and recalling a prosecution witness, Zawistowski's daughter, after prosecutors rested their case.
Kubiniec, a former Erie County prosecutor, conducted a non-jury trial.
Kubiniec also made a mistake by closing the courtroom to the public, over the objection of defense attorney Philip M. Marshall, for testimony about Zawistowski's alcohol problems and by failing to grant Marshall's motions to overturn the verdict because of errors in the trial, the appeals court said.
The appellate court also noted that Zawistowski, 41, also failed to sign a waiver of his right to a jury trial before he stood trial.
The failure of the court to get him to sign a jury waiver was another ground for reversing the conviction on attempted murder counts, the court said. Zawistowski was sentenced to 8 1/3 to 25 years in prison.
David C. Schopp, the Buffalo Legal Aid attorney who handled the appeal, said Zawistowski, now an inmate at the Wende Correctional Facility, will be eligible for bail once appeal paperwork is completed.
A professional guitarist, Zawistowski was found guilty of attacking his ex-wife, Christine Camilloni, with a baseball bat and knife in her Marilla Street home on June 5, 1986.
Ms. Camilloni had obtained a divorce from Zawistowski, of Prenatt Street, four months before the attack. Their children, Mark, 21, and Tina, 18, also were injured.
Schopp said Kubiniec had "no legal basis" for granting a request from the Erie County district attorney's office for closed-door testimony by a county alcoholism counselor on Zawistowski's alcohol problems, or to force his daughter, Tina, to return to the witness stand for questioning by the judge.
Prosecutors had rested their case when Kubiniec said he wanted more testimony from the girl, Schopp said.
District Attorney Kevin M. Dillon said his staff is reviewing the decision for a possible appeal to the Court of Appeals in Albany.