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Psychiatric report prompts delay in Niagara home invader sentence

Sentencing for an admitted home invader was postponed in Niagara County Court on Thursday after he protested that a psychiatric report sanctioned a defense position that his then-attorney had rejected in advising him to plead guilty.

Shawn M. Zimmerman, 31, of West Avenue, Lockport, wants to withdraw his Feb. 10 guilty pleas to first-degree assault and second-degree kidnapping.

Zimmerman's self-written motion to cancel the pleas caused Assistant Public Defender Robert Viola, who negotiated the deal, to quit the case last week. The case was assigned to Dominic Saraceno of the county Conflict Defender's Office.

"I don't want him to argue the motion because he wasn't there," Zimmerman said.

His beef stems from a report by Dr. Brian S. Joseph about how badly Zimmerman was under the influence of drugs Aug. 4, when he knocked on the door of the Porter home of Barry and Therese Dubetsky.

Zimmerman held the family, including two teenage daughters, at knifepoint for an hour until the father tried to subdue him.

Barry Dubetsky was stabbed in the chest and abdomen, and Therese was cut on the hand.

Zimmerman told state police he was on a weeklong drug binge and entered the home because he thought he was being chased, either by police or by a man he had recently robbed.

The plea bargain involved the District Attorney's Office dropping felony charges on as many as five alleged crack cocaine sales by Zimmerman.

Zimmerman contends that he didn't see Joseph's report until after he pleaded guilty.

Viola denied that assertion last week. After a Jan. 13 court appearance, Viola told The Buffalo News that he was giving the court a doctor's report on Zimmerman.

District Attorney Michael J. Violante said that it was dated Jan. 11 and that his office got a copy "shortly thereafter."

"The district attorney just lied on the record," Zimmerman said.

Of Zimmerman's contention, Violante said, "It's a ruse. I think he's lying to the court."

Saraceno explained, "He thought he had a legal defense here, being intoxicated." He said Viola told Zimmerman that this wouldn't work and urged him to take the plea deal.

"When [Zimmerman] saw the report from Dr. Joseph, which he didn't see until after the plea, and he saw that an expert in the field of psychiatry thought he might have a legal defense for intoxication, he regretted the plea," Saraceno said.

Judge Sara Sheldon Sperrazza said, "The report is not what he thinks it is. He may have met the medical definition of intoxication, but not the legal definition. The doctor says it's still a purposeful act."

Violante said he talked with Viola about this issue. "He told me that not only did he give [Zimmerman] a copy of the report, but he also gave him case law on intoxication as a legal defense. It isn't really a legal defense in the State of New York."

Sperrazza said "95 percent" of the people who plead guilty to burglary or robbery were on drugs at the time of the crime.

"This isn't a burglary. This isn't a robbery. This is attempted murder and kidnapping," Zimmerman said. "I've been trying to talk to the court for eight months."

Violante said, "I would agree to a short recess to get an affidavit from Mr. Viola."

The sentencing was adjourned until Wednesday. Sperrazza apologized to the Dubetskys for the delay.

Barry Dubetsky said, "I've got nothing to say. I've seen it all."

e-mail: tprohaska@buffnews.com

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