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Judge grants motion to vacate murder conviction in 2011 fatal shooting of West Side woman

Marcus J. Gottsche, who is serving a prison sentence of 25 years to life for shooting an unarmed housemate in the back while outside their West Side house, may be getting another day in court.

A State Supreme Court justice granted Gottsche’s motion to have his murder conviction vacated, saying that Gottsche, now 33, was denied “the effective use of counsel” during his trial in 2011. He was found guilty of killing Jasmine Armour, 28, at their Breckenridge Street home in the early morning hours of Feb. 10, 2011.

Testimony at trial showed that Armour was running from the house after Gottsche threatened her with a rifle when the two were quareling about a sandwich he had left in the refrigerator. Armour died when Gottsche fired a single bullet into her back.

A jury convicted Gottsche of second-degree murder, and the verdict was upheld in 2014 by the Appellate Division of State Supreme Court.

Gottsche then took another tack in seeking to have his conviction vacated, filing a 440 motion, which is a type of appeal that brings forward information not necessarily presented at trial.

At a hearing in July before acting State Supreme Court Justice Russell P. Buscaglia, Gottsche maintained that his trial attorney, Michael L. D’Amico, should have asked the judge to instruct the jury in 2011 to also consider lesser charges when deciding on its verdict. Gottsche testified at the July hearing that, although during his trial he had told D’Amico he wanted to go for “all or nothing” – a murder conviction or acquittal – his lawyer was obligated to overrule him, if he believed that was in his client’s best interest. Gottsche is now represented by J. Michael Marion.

When D’Amico testified in July, he said that it had been his understanding that he was required to follow his client’s wishes, despite his own opinion that the evidence supported a case for manslaughter, which has a lower sentencing range of five to 25 years in prison. He also said he never discussed with the judge his reservations about the charge to the jury.

Buscaglia granted the 440 motion and met in conference with both sides Monday. Gottsche will be back in court Dec. 17 to set a new trial date.

email: mmiller@buffnews.com