Schenectady County

Xctasy’s abuser appeals sentence

The child abuse case of Xctasy Garcia made it to the Appellate Division of state Supreme Court on Fr

The child abuse case of Xctasy Garcia made it to the Appellate Division of state Supreme Court on Friday, with one of her abusers asking the court to reduce his 17-year sentence.

Jose Munoz, 27, has filed papers through his attorney arguing that his sentence wasn’t entirely legal. If successful, his sentence could drop to 10 years.

But the Schenectady County District Attorney’s Office argued against the appeal, saying each person involved knew the sentence and the reasons for it.

Questions from the appellate panel of five judges appeared to favor the county’s position.

In his appeal, Munoz is arguing consecutive 7-year terms on two counts of assault should have been concurrent. Both involved injuries inflicted on Xctasy, burns to her eyes and a fracture to her arm. A third assault plea drew three years.

Wording in the plea hearing could be read as the injuries were part of the same act, requiring the sentences be served at the same time, his attorney, Susan Lyn Preston, argued in her filing. She did not appear in person.

“There is nothing in the language of [the counts] that suggest that [Munoz] committed two separate and distinct acts,” Preston argued.

But Alfred Chapleau, chief assistant Schenectady County district attorney, argued that it was understood throughout the legal process that the counts resulted from two separate acts, right up to Munoz’s sentencing by Schenectady County Court Judge Karen Drago.

Drago gave Munoz the maximum sentence allowed in the plea bargain.

Chapleau opened his arguments by first calling the case “infamous,” then changing it to “famous.” One of the justices corrected him, saying “infamous” was the better word.

Munoz admitted at his plea to breaking Xctasy’s arm, nearly blinding her with a mixture of soap and bleach and using a cigarette to burn the arm of her half-brother, Hennessey Velazquez. It was a highly publicized case that led to changes in local and state law and policies.

Munoz’s one-time girlfriend, Delia Hernandez, mother of Xctasy, now 6, Hennessey, 10, and Damien Munoz, 9, was sentenced to seven years for her role in the abuse.

Xctasy’s recovery was nothing short of remarkable, officials have said. She has recovered her eyesight and she and her brothers thrived in foster care with people who cared about them.

Appellate Division Judge Michael Kavanagh clarified at one point, saying Munoz agreed to the plea bargain, one that included consecutive time for different injuries.

Chapleau agreed.

“Let me take it one step further,” Chapleau said. “When Judge Drago imposed sentence, she made a statement that made it very clear she understood them to be separate acts.”

Kavanagh continued, asking that, if Munoz and his attorney were aware that the deal included consecutive time, would that be an implied admission that the acts were separate?

Chapleau agreed.

Munoz remains at the maximum security Attica Correctional Facility. A decision on his appeal is not expected for several weeks.

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