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Judge refuses to reduce bail for suspect in murder

Niagara County Judge Sara Sheldon Sperrazza refused Tuesday to reduce bail for a Niagara Falls murder defendant, even though she joined the defense attorney in questioning the strength of the prosecution's case.

Sperrazza also held a nearly two-hour hearing on a defense request to suppress the confession of a man accused of a violent Porter home invasion.

In the murder case, attorney Frank LoTempio III asked Sperrazza to reduce the $200,000 bail that holds Edward E. Nickens in the County Jail.

Nickens, 32, of Michigan Avenue, is accused of the May 16 shooting death of Joshua Hayes, 23, of Whitney Avenue, who was shot once in the head in front of Nickens' home.

For months, police and prosecutors weren't sure whether to charge Edward Nickens or his identical twin brother, Raymond C. Nickens.

Edward Nickens was arrested Oct. 19, with police concluding Raymond Nickens wasn't present at the shooting scene.

"The day after this murder happened, my client gave a full, cooperative statement to police," LoTempio said.

LoTempio also attacked the prosecution's case, calling the DNA evidence shaky. "It doesn't show [Nickens'] profile. At best, his profile can't be excluded," he said.

LoTempio wrapped up his presentation by declaring, "An innocent man is sitting in jail."

Deputy District Attorney Doreen M. Hoffmann charged LoTempio with "misstating the people's case entirely," although she told the judge she didn't want to discuss the details in a bail hearing.

Sperrazza said she had read the grand jury transcript twice. "I'm indicating that's not the strongest case," the judge said.

Hoffmann said the prosecution didn't use all its evidence in front of the grand jury. "Perhaps you should have," Sperrazza replied.

But Sperrazza was concerned that before the arrest, Nickens allegedly was harassing members of Hayes' family, and after he was jailed, a Nickens relative apparently posted a harassing commentary on the Internet.

"When the family acts that way, guess who takes the brunt of it, whether he has anything to do with it or not," Sperrazza said.

In the home invasion case, Assistant Public Defender Robert Viola asserted that Shawn M. Zimmerman's handwritten confession should be thrown out because he didn't sign a waiver of his Miranda rights.

Hoffmann said Zimmerman didn't have to sign anything because he had told state police orally that he was willing to talk. Sperrazza said she'll decide within two weeks.

Investigator John DiPasquale testified that he was typing up a statement for Zimmerman when the suspect stopped him because he wanted to write his own account, which ran to three pages.

Zimmerman, 30, of Lockport, is charged with entering a home in Porter about 6 a.m. Aug. 4 and holding the family at knifepoint for an hour. Barry R. Dubetsky, 51, was stabbed in the chest and stomach as he tried to disarm Zimmerman, and Therese M. Dubetsky, 50, was stabbed in the hand.

e-mail: tprohaska@buffnews.com

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