Prosecutors in the Saratoga County District Attorney’s office are dusting off old case files as they research how to handle a trial for a 40-year-old murder.
But, an Albany Law School professor said Tuesday the differences shouldn't be all that substantial even though the case must be prosecuted using the statutes that were in place at the time.
District Attorney James Murphy III said a grand jury has been convened to hear the case against Nelson Costello, 62, of Prescott, Ariz.
Costello was charged by police with murder on Thursday for the alleged killing of David M. Bacon in Waterford in 1969.
Police said they have gathered evidence that Costello killed Bacon, of Schaghticoke, when both men were 22. They have not commented on a motive.
Murphy said police received information early last summer concerning the alleged murder and, after conducting an investigation, they flew to Arizona several weeks ago to talk with Costello.
“It appears [Costello] may have returned to New York to allegedly contact witnesses in the case, which led to the state police accelerating the time frame for an arrest,” Murphy said.
“Mr. Costello has been charged with felony murder,” Murphy said. “We have to use the statute that was in place at the time of the alleged crime. There was no first-degree or second-degree murder in 1969.” He said the state Legislature rewrote the penal code in 1967 and was still fine-tuning the law two years later.
Albany Law School professor Daniel G. Moriarty said the law pertaining to murder hasn’t changed much in the last 40 years, unless the murder involves a police officer or a drug case. In each of those cases the law was rewritten to provide for a potential death sentence.
“It sounds bad to call something an ordinary murder, but by that I mean it does not involve a police officer,” Moriarty said. He said if penalties for crimes have increased over the years, a sentencing would have to be based on the law as it stood at the time of the crime. If the penalty has been decreased since the crime, the convicted person would get the lesser sentence.
“If a crime was a misdemeanor when it occurred and then was raised to a felony [by the Legislature], the crime would be tried as a misdemeanor,” Moriarty said.
Murphy said district attorney offices in New York are required to keep all information on murder trials for 75 years and because of that, his office has files on murder cases in the 1960s.
“Sentencing would also go along with what was set in 1969,” Murphy said. “We’re still doing our research into the matter with our archives and the online research services.”
Murphy said he will reveal more about the Costello case if the grand jury indicts him.
“The grand jury could return an indictment as soon as Thursday, but I’m guessing it will be sometime next week,” Murphy said. Costello was arrested in Cohoes and then taken to Clifton Park for arraignment early Friday morning.
He’s being held without bail in the Saratoga County jail and is scheduled to return to town court this afternoon.
Costello’s attorney is Gaspar Casillo of Albany. Casillo could not be reached for comment Tuesday.