People v Zacher
Annotate this CaseDecided on April 20, 2006
Supreme Court, Monroe County
The People of the State of New York
against
David M. Zacher, Defendant.
2005-0303
For the People:Michael C. Green
Monroe County District Attorney
Douglas Randall, A.D.A.
47 South Fitzhugh Street, Suite 832
Rochester, New York 14614
For the Defendant:John R. Parrinello, Esq.
36 West Main Street, Suite 400
Rochester, New York 14614
Joseph D. Valentino, J.
F
ollowing a jury trial, defendant was convicted of two counts of Murder in the First Degree (Penal Law § 125.27 [1] [a] [viii] and [b]) one count of Assault in the First Degree (Penal Law § 120.10 [1]). Pursuant to People v Francabandera, 33 NY2d 429, and Wilson v United States, 391 F2d 460, the Court now issues its post-trial findings of fact and conclusions of law regarding whether defendant's loss of memory deprived him of a fair trial and effective assistance of counsel to which the Fifth and Sixth Amendments entitle him.
It should be noted that at this post-verdict proceeding defendant was permitted and did put forth additional oral argument concerning the effect of the amnesia on the fairness of the trial.
Findings of Fact
In making the fair trial determination the Court considers the following factors:
(1) The extent to which the amnesia affected the defendant's ability to consult with and assist his lawyer.
[*2]Extent of Amnesia
Defendant's expert proof indicated that amnesia effected only defendant's ability to recall the few minutes surrounding the actual killings. His memory is otherwise intact. Defendant, in fact, testified at trial regarding the events of the day of the crimes, leading right up to the moments of the crimes and immediately thereafter.
Ability to Consult with and Assist his Lawyer
The Court finds that defendant's amnesia did not interfere with his ability to discuss the case with his attorney. Throughout the trial, the Court observed defendant talking to his attorney and making notes and sharing those notes with his attorney. Also, there was no complaint raised by defense counsel during the trial regarding the ability of defendant to consult with and assist him. Defendant testified that he is a college graduate and received a Master's degree. Taking these facts into consideration, defendant possessed sufficient intelligence and judgment to listen to the advice of counsel and assist counsel.
Also, during the charge conference, defense counsel requested time to discuss with defendant whether to request an instruction on extreme emotional disturbance. Subsequently, defense counsel informed the Court that the defense would not request such an instruction or a charge on the lesser included offense of manslaughter in the first degree. As such, defendant is presumed to have consulted with his attorney on the issue of extreme emotional disturbance.
(2) The extent to which the amnesia affected the defendant's ability to testify in his own behalf.
The defendant did, in fact, testify in his own behalf. Defendant testified that he could not remember the events of the homicides or assault. However, the evidence showed that defendant called 911 and reported that he hurt his family. Defendant also proffered viable defenses of non-commission, justification, and insanity. In terms of justification, defendant remembered and testified about events leading up to, and following, a certain point in time. The testimony leading up to that certain point in time served as the basis for the jury instruction on justification.
Defendant's testimony was not required to establish the manner in which the stabbings occurred or defendant's culpable mental state. The blood splatter expert gave an opinion as to the manner in which the stabbing occurred. The number of stab wounds inflicted on the victims, particularly in the chest areas, may have established defendant's culpable mental state.
(3) The extent to which the evidence could be extrinsically reconstructed in view of the defendant's amnesia. Such evidence would include evidence relating to the crimes as well as any reasonably possible alibi.
The facts of the case could be reconstructed through the use of forensic evidence. Critical proof included a 911 call made by the defendant immediately after the crimes. The police responded immediately to the scene and found the defendant there, still on the phone with the 911 operator.
The People's evidence was made available to defendant prior to trial. Therefore it was possible for defendant to extrinsically reconstruct events relating to the crimes. Through such evidence, defendant was able to proffer his three defenses.
(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.
The People supplied defense counsel with full disclosure well in advance of trial. This disclosure included all the forensic evidence, the 911 call, and the crime scene reports, photographs and videotape. Before the Court ordered expanded discovery, the People had already disclosed to the defense a great deal of evidence in the case. Following the Court's order, the People provided [*3]additional discovery to the defense in sufficient time for use at trial.
(5) The strength of the prosecution's case
Defendant faced a very strong circumstantial evidence case against him. Given the extent of the record, the Court concludes that the People's evidence established a solid prima facie case to go to the jury for their decision. Their verdicts of "guilty beyond a reasonable doubt" are entirely consistent with the evidence presented.
(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.
The Court took the defendant's amnesia into account when it took the extraordinary step of ordering non-mandated disclosure prior to trial. Throughout the trial, the Court accommodated defense counsel's reasonable requests regarding scheduling. There were no time limitations placed on Voir Dire and the District Attorney provided defendant with his witness list.
The Court finds that the extensive amount of discovery provided and the incriminating nature of the evidence contained therein indicates that restoration of defendant's lost memory may not have materially aided or altered his defense.
Conclusion of Law
On January 26, 2006, the Court determined that (1) a hearing on the genuineness of defendant's amnesia was not necessary, (2) defendant was not seeking a competency hearing and (3) defendant was competent to stand trial. Defendant previously moved for a Francabandera/Wilson fair-trial assessment after trial, and the Court granted defendant leave to renew that request at the conclusion of the trial. That determination has been made as set forth above and the Court now concludes that (1) the defendant was competent to stand trial, (2) that defendant received a fair trial, and (3) defendant received effective assistance of counsel.
The above constitutes the Decision and Order of this Court.
Dated:Rochester, New York
April 20, 2006
____________________________________
Hon. Joseph D. Valentino
Justice Supreme Court
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