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Appeal rests on a mother's nod

Arguments heard in retrial request for Christopher Porco

— The state's highest court heard arguments this afternoon from Christopher Porco's attorney, who is seeking a new trial for his client who's in prison for murdering his father and attempting to murder his mother.

Defense attorney Terence Kindlon and Assistant District Attorney Christopher Horn both spoke for 20 minutes before a panel of six judges. Kindlon is arguing Porco deserves a new trial because in his 2006 conviction the jury was allowed to hear testimony from police that Joan Porco, his badly injured mother, had identified Christopher as the assailant with a head nod in response to questions from police.

By the time of the trial, Joan Porco claimed no memory of the evening and professed her son's innocence. A lower court heard the same appeal months ago and ruled that while the “excited utterance” should not have been admitted in the trial, the body of evidence against Porco was large enough it wouldn't have swayed the outcome.

“I would submit that the appellate division was simply wrong,” said Kindlon at the hearing.

He argued that since Joan Porco had no memory of the night of the 2004 attack due to her extensive injuries, her son was denied his constitutional right to face his accuser.

“I would give anything to be able to cross examine Joan Porco because we don't know what she meant” by her nod,” Kindlon said.

Horn, on the other hand, said the head nod is fair game because Joan Porco was available to testify at the trial. He also downplayed the importance of the nod, pointing to other evidence the prosecution presented, including a Thruway toll ticket with Porco's DNA on it. Porco was said to have traveled from Rochester to Bethlehem to commit the crime.

But Judge Eugene Pigott wondered about the lower court's determination that the nod was of little consequence in the trial.

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