LOCKPORT – Joachim S. Sylvester, convicted of trying to shoot a man to death in broad daylight in Niagara Falls last year, is attempting to have the conviction overturned, asserting new evidence and juror misconduct.
Sylvester’s new attorney, Frank LoTempio III, said Thursday in Niagara County Court that the new evidence is an affidavit he obtained April 28 from the shooting target, Larry Miller of the Falls, who asserted that Sylvester wasn’t the shooter.
Deputy District Attorney Doreen M. Hoffmann said the crime was caught on videotape, and the jury played it “over and over and over” before convicting Sylvester Oct. 27 of attempted second-degree murder and second-degree criminal possession of a weapon. Sylvester, 39, of Ontario Avenue in the Falls, faces up to 40 years in prison.
“I don’t see how Mr. Miller’s beliefs are relevant,” Hoffmann said. She obtained a conviction even though Miller didn’t show up to testify.
LoTempio said that not only does he have an affidavit, he has a videotaped interview with Miller. “He does not believe it was Mr. Sylvester. He told prosecutors a number of times it was not Mr. Sylvester,” LoTempio said.
Hoffmann said if that’s Miller’s opinion, the defense had plenty of time between the crime April 17, 2014, and the trial six months later to obtain that statement.
“I don’t believe there was any due diligence at all on the part of the defense,” Hoffmann said.
Sylvester’s trial attorney, Angelo Musitano, is a Canadian citizen who was barred by immigration authorities in January from entering the U.S. to practice law anymore. Murphy scheduled a hearing July 30 on Miller’s affidavit and told LoTempio it was his job to figure out a way to obtain Musitano’s testimony.
The juror misconduct allegation is that a female alternate juror purportedly talked to friends and family about the case or read about it in the newspaper while the trial was going on. That would be in violation of Murphy’s instructions.
Asked how Sylvester knows this, LoTempio said the defendant heard it in jail. Hoffmann said she knows of no evidence whatsoever to back up this claim, and at any rate, the alternate jurors were discharged before deliberations began and played no role in the verdict.
LoTempio said he might have to sue county Commissioner of Jurors Christopher A. Pannozzo to obtain the name and address of the allegedly misbehaving juror.
“I’m not inclined to grant your relief,” Murphy told LoTempio, but the judge told the attorney he could bring up the juror question at the July 30 hearing. Murphy also refused to set bail for Sylvester, who was remanded after the verdict.