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Sentence cap sought in stabbing of 2, home invasion

LOCKPORT -- The attorney for Shawn M. Zimmerman said Thursday that the accused home invader might be willing to plead guilty if the judge commits to a cap on possible prison time.

Robert Viola said after a conference with prosecutors and Niagara County Judge Sara Sheldon Sperrazza that he knows the charges won't be reduced, but he hopes he can persuade Sperrazza the sentence should be.

Zimmerman is accused of entering the home of the Dubetsky family in Porter about 6 a.m. Aug. 4, stabbing Barry R. Dubetsky, 51, as he tried to take a knife away from him, and stabbing Theresa Dubetsky, 50, in the hand.

Viola was given until Feb. 1 to deal with what District Attorney Michael J. Violante called "some pretrial matters that may affect whether we actually try this case."

Viola said he is "working up a profile that could reflect Shawn Zimmerman's state of mind." He hastened to add that he's not planning to use an insanity defense if the trial is held Feb. 14 as scheduled. Zimmerman, 31, of Lockport, is charged with attempted murder, four counts each of first-degree burglary and second-degree kidnapping, and single counts of first-degree assault, attempted aggravated assault on a police officer and third-degree criminal possession of a weapon.

The only plea offer Violante has made was a promise not to seek a life sentence for Zimmerman as a persistent felon if he pleads guilty to two of the 10 Class B violent felonies in the indictment.

Such a plea would set Zimmerman up for a maximum sentence of 40 years in prison, which is the cap on consecutive sentencing in New York, Deputy District Attorney Doreen M. Hoffmann said.

"The court has made no commitment, but I would like to proffer something the court could find significant," Viola said. "Until I can see there's some kind of reasonable cap or reasonable ceiling [on sentencing] I don't think we would just acquiesce."

Hoffmann said, "We are not making any sentencing commitment. If he wants that, he'll have to get that from the judge."

The prosecution's case appears strong, with the victims and police who captured Zimmerman in the house ready to testify. Also, Zimmerman's handwritten statement and other incriminating comments he made to state police have been ruled admissible.

In the statement, Zimmerman wrote "I have been sniffing cocaine, smoking crack, smoking marijuana," he wrote.

He said he knocked on the Dubetskys' door after no one answered the door at a nearby house. He told police he thought he was being chased either by a parole officer or someone he said he had recently robbed. Besides the home invasion, Zimmerman has been indicted on an unrelated case, in which he is accused of making four cocaine sales in Lockport, two in 2009 and two in 2010. He has pleaded not guilty. He is currently serving time for violating parole on a 14-year sentence he received in 1998 for a robbery and a car arson.

e-mail: tprohaska@buffnews.com