A state appellate court has upheld Christopher Porco's 2006 murder conviction.
Porco will continue serving his two consecutive sentences of 25 years to life in prison for killing his father and attacking his mother with an axe in their Delmar home in 2004.
Lawyers for Porco had argued that an affirmative nod by mother Joan Porco when asked after the attack if her son had attacked her should be treated as an excited utterance and deemed inadmissible in court.
The appellate court unanimously upheld the lower court's ruling that the nod was the result of direct questioning.
"The affirmative nod was not made spontaneously, but in response to probing, direct questions by the detective and, as such, constituted testimonial hearsay subject to exclusion from evidence" the decision reads in part.
Police questioned Joan Porco following the attack because they believe she could die of her injuries. She later said she had no recollection of the attack.
The court also upheld other elements of the prosecution's case that were challenged on appeal. The defense will have the opportunity to continue the appeal process in the state Supreme Court.