Court denies Porco’s appeal

PHOTOGRAPHER: Justin Mason

Traffic cameras in Rochester and at toll booths on the Thruway both recorded Christopher Porco’s yellow Jeep Wrangler being driven to the Capital Region just hours before an ax attack that killed his father and gravely injured his mother.

Porco’s DNA matched a sample taken from a toll ticket handed in at Thruway exit 24 in Albany just 23 minutes before someone entered the master code to deactivate the alarm system at his family’s Bethlehem home.

A neighbor driving to his job at a construction site spotted Porco’s yellow Jeep parked in the driveway of his family’s home during the pre-dawn hours of Nov. 15, 2004.

Seven of Porco’s classmates at the University of Rochester said they never saw him sleeping in the study lounge of their dormitory. There was also considerable evidence he lied about his mounting financial and academic troubles at college — problems that his parents knew about.

Even without an incriminating nod his critically injured mother made to investigators on the day of her injuries and her husband’s death — interpreted as indicating her son as the attacker — justices with the state Court of Appeals ruled there was still more than enough evidence to convict Porco on the charges of murder and attempted murder. The six justices who heard arguments in the case last month agreed there was no constitutional basis to overturn the 2006 verdict.

Chief Judge Jonathan Lippman wrote in a five-page memorandum issued Tuesday, “Even assuming, without deciding, that the testimony about the nod was constitutionally infirm, any error was harmless beyond a reasonable doubt.”

Justice Victoria Graffeo recused herself from the case, acknowledging her friendship with Peter Porco, Christopher’s father, during law school. Peter Porco was employed as a law clerk for the Appellate Division when he died.

kindlon’s challenge

Defense attorney Terence Kindlon tried to convince the justices that Joan Porco’s head nod was the linchpin that Albany County prosecutors used to make their case. He argued the mother’s serious trauma from the ax attack prohibited her from remembering the nod she made to police Det. Christopher Bowdish when he asked if her son Christopher was the attacker.

Joan Porco was severely maimed and left for dead in the couple’s bedroom; the ax was found discarded nearby. Peter Porco was found in the blood-covered portico of the home, dead of massive head injuries from the ax.

Bowdish first asked if older son Jonathan had caused her injuries, and the mother gave a nod he interpreted as a negative. Bowdish then asked if younger son Christopher was responsible, and the woman nodded in the affirmative, the detective testified at trial.

During her testimony in 2006, Joan Porco defended her son. She said the last memory she had was going to the Bethlehem YMCA on the day before the attacks. The next thing she recalled was waking up at Albany Medical Center and having “difficulty making connections.”

Kindlon argued that any testimony about Joan Porco’s nod was given in violation of her son’s Sixth Amendment rights, which guarantee defendants the right to cross-examine an accuser. Because his mother had no memory of the moments surrounding her attack, Kindlon said it was impossible to ask her what she meant by the nods when she testified.

Kindlon said he was “surprised and disappointed” by the decision, especially considering the attention the justices seemed to give him during oral arguments last month. He vowed to take the case to federal court to again challenge the constitutionality of including testimony about the nod.

“We felt that the nod was the nucleus of the case,” he said Tuesday. “That was our argument, and that’s what got us into the Court of Appeals.”

Kindlon pledged to petition the U.S. Supreme Court later this month but wasn’t optimistic about the case getting picked up by the justices. He said a more likely avenue will be to argue the case in the U.S. District Court in Albany and beyond.

“I will not stop working on this case until I die of old age and they pry it from my cold, dead hands,” he said.

prosecutor satisfied

Albany County prosecutors are convinced the case has finally reached its conclusion in New York’s highest court. Assistant District Attorney Christopher Horn said the appeals court ruling basically affirms his position that the case against Porco was strong enough to convict him even if the nod were excluded.

“I don’t care whether they had the nod or not,” he said. “The proof against him was absolutely overwhelming.”

County prosecutor David Soares said the appeals court ruling will at last bring resolution to the case. He wasn’t concerned about the prospect of a federal court battle.

“The decision that was issued today was the final decision,” he said. “As far as what Mr. Kindlon wants to do, he’s certainly entitled to explore all his options.”

Now 28, Christopher Porco is serving 46 years to life at the state’s Clinton Correctional Facility in Dannemora, a maximum security prison outside Plattsburgh. He is not eligible for parole until 2052.

Kindlon, who spoke to Christopher Porco after the decision, said his client was disappointed but remains upbeat. In contrast, he said the decision seemed to wear heavy on his mother, who continues to support her son’s claim of innocence.

“She is crushed,” Kindlon said.