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Convicted killer gets new trial on judge's error

A former Buffalo drug dealer sentenced to 25 years to life in prison for an execution-style murder during a home invasion has won a new trial because of how the trial judge handled a note from the jury.

State Supreme Court Justice Christopher J. Burns erred by responding to the jury's note in writing without providing notice to the prosecutor or defense attorney, the Appellate Division of State Supreme Court has ruled.

The five appellate judges unanimously reversed Hillery DuPleasis' 2008 conviction.

DuPleasis, 58, currently incarcerated in the state's Five Points Correctional Facility in Romulus, Seneca County, was found guilty of shooting 31-year-old Robert C. Robinson during the 1994 home invasion. A jury of nine men and three women found DuPleasis guilty of second-degree murder, criminal possession of a weapon and two counts each of first-degree burglary and robbery for the theft of a safe containing $1,500.

"It is well settled that a substantive written jury communication should be read into the record in the presence of counsel before the jury is summoned to the courtroom in response thereto," the appellate judges said in their opinion. "And here the court responded to the jury's note in writing without providing notice to the prosecutor or defense counsel."

DuPleasis, who fled Buffalo in 1995, had been in jail for three years in California in a drug case before Buffalo police brought him back to Buffalo in 2007. DuPleasis, a New Orleans native, was linked to Robinson's killing through DNA tests that confirmed he left blood stains in the flat while struggling with Robinson, prosecutors contended in court.

Robinson was at a friend's house watching the Buffalo Bills play the New York Jets on Nov. 6, 1994. He was shot at about 6 p.m. after answering the door at his friend's apartment on Fillmore Avenue.

After the trial, Andrew C. LoTempio, DuPleasis' attorney, said he would challenge the conviction on statute of limitation grounds. The elements of the murder conviction were based on the felony crimes of burglary and robbery for which there are five-year statutes of limitations, he said.

The appellate judges did not address that issue.

Neither Kristin M. Preve, the Legal Aid Bureau attorney who handled the appeal, nor Erie County District Attorney Frank A. Sedita III could be reached to comment Friday.

LoTempio, who represented DuPleasis at the trial, recalled notes from the jury but could not remember the contents of the note upon which the appellate judges based their reversal.

"The jury may have asked for instructions on robbery or felony murder, and rather than bring them back out, the judge may have just submitted the charges (in writing) to the jury," LoTempio said. "It may have been a situation where the (prosecutor) and I consented to that" during an off-the-record conversation with the judge, he said.

But the note and notice to lawyers were not put on the record.

"A lot of times you have discussions, and we just may have forgot to do that," LoTempio said.

LoTempio said he could not be certain of what happened because he didn't have DuPleasis' file with him Friday.

"I can't say Judge Burns made a mistake, based on the flux of the law," LoTempio said. "It might have been an oversight. But I would not fault Judge Burns on it. He's one of the more thorough judges, and he's usually pretty meticulous."

e-mail: plakamp@buffnews.com

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