A former University at Albany student, convicted in June 2005 in the hatchet slaying of a Delmar man who was dating his ex-girlfriend, will not get a new trial.
The state Appellate Division upheld the conviction of Erick S. Westervelt, 26, of Guilderland, who was found guilty of second-degree murder in the fatal attack on Timothy Gray, 28, a native of White Plains.
The attack occurred in the backyard of Gray’s former residence on Elsmere Avenue in Delmar on Oct. 5, 2004.
Westervelt’s attorney, Terence Kindlon, had argued that Westervelt’s written statement should have been suppressed as involuntary and the result of an unlawful arrest and not shown to the jury.
Kindlon also argued that the prosecutor made comments during the trial that deprived Westervelt of a fair trial.
According to police, Westervelt told them “I did it” and police asked him to write an apology to his ex-girlfriend.
The court said the letter of apology he wrote to his ex-girlfriend should not have been used as evidence. Yet the court said this error was “harmless.”
It found that Westervelt agreed to go the police station, was given Miranda warnings and agreed to talk to police.
While at the Albany police station, Miranda warnings were reread to him and he gave a detailed written statement in which among other things he admitted “punching Gray, kicking him in the face, striking him in the head and face with a wooden replica hatchet and leaving a note written in Italian, which he made using a translation Web site on a computer in a public library to detract suspicion.”
He also drew a map of the crime scene and on Oct. 12, 2004, a corrections officer at the county jail overheard Westervelt make an incriminating statement about the crime.
The court found that Westervelt gave a detailed statement in his own handwriting.
In the ruling, the court also found that Westervelt’s oral statements provided probable cause to place him in custody and that his “written statement was not the fruit of an unlawful arrest.”
According to the ruling, evidence of Westervelt’s guilt included his oral admission to detectives; his detailed written statement consistent with evidence at the crime scene and the method of the attack; and his incriminating statement overheard by the corrections officer.
Also, a search conducted on the computer at his home prior to the murder showed someone typed “murder with note with letter left behind.”
“In light of the overwhelming proof of guilt, reversal is not required,” the six-page ruling reads.
Westervelt is serving 25 years to life in the Clinton Correctional Facility.
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