LOCKPORT – Attorney Angelo Musitano, who has been barred by immigration authorities from entering the U.S. to practice law, was allowed to cross the border Thursday to testify in an effort to overturn a former client’s attempted murder conviction.
Musitano, a Burlington, Ont., resident who for many years was a busy criminal defense attorney in the Niagara Falls area, was called to testify in the case of Joachim S. Sylvester, 39, who faces up to 40 years in prison on his conviction for trying to shoot Larry Miller of the Falls in daylight on Highland Avenue in April 2014.
Miller didn’t show up to testify at Sylvester’s trial last October, despite the issuance of a material witness warrant. Sylvester was convicted anyway because the incident was filmed on videotape from a security camera at a nearby store. Some witnesses identified Miller as the intended victim, seen sprinting for a sport utility vehicle and speeding away after crashing into another parked auto.
Musitano said of the video, “I thought it was beneficial to the defense, but it wasn’t.”
Musitano testified that he never tried to track down Miller himself, in part because he thought there was an order of protection barring Sylvester or third parties connected with him from contacting Miller. Research during Thursday’s hearing by the Niagara County Court staff showed there was never any such order.
However, Sylvester’s new attorney, Frank LoTempio III, said Miller surfaced after the conviction, went to his office and signed an affidavit swearing that he didn’t think Sylvester was the shooter.
LoTempio said that in order to persuade Judge Matthew J. Murphy III to overturn the conviction, he needs to show that there is new evidence that could have changed the verdict, and that the defense couldn’t have produced it at the trial despite its own “due diligence.” Thus, Thursday’s hearing focused on how diligent Musitano was. Musitano said he presumed Miller would be a prosecution witness, so he didn’t go after him.
Musitano assumed, correctly, that Deputy District Attorney Doreen M. Hoffmann had obtained a material witness warrant. “If the people couldn’t find Mr. Miller with their resources, I couldn’t find him,” Musitano said.
He acknowledged that the defense had no budget for such things as private investigators. Sylvester had retained Musitano but couldn’t pay him because of costs left over from previous cases in which Musitano had worked for Sylvester.
“He was indebted to me for quite a bit of money,” Musitano said. “I wasn’t getting paid.”
Hoffmann established that Sylvester was free on bail during the trial and since there was no order of protection, he could have tried to talk to Miller himself. The prosecutor said Sylvester talked to other witnesses.
Hoffmann told Musitano, “As your attorney, it’s certainly within your right to speak to any prosecution witness.”
“Attempt to speak,” Musitano replied.
Hoffmann showed that Miller was in jail on a domestic violence charge the month before the trial, so it should have been easy to find him then.
Murphy directed Hoffmann and LoTempio to file briefs, and scheduled oral argument on the motion to overturn the verdict for Sept. 14.
Murphy said Musitano had been given “parole” to cross the border for a day, after work by LoTempio and Hoffmann. The reason for Musitano being barred from practicing in the U.S. has never been disclosed.