continued A lower court heard the same appeal months ago and ruled that while the “excited utterance” should not have been admitted in the trial, the body of evidence against Porco was large enough it wouldn't have swayed the outcome.
Kindlon said that since Joan Porco had no memory of the night of the 2004 attack due to her extensive injuries, her son was denied his constitutional right to face his accuser. However, Assistant District Attorney Christopher Horn said the head nod is fair game because Joan Porco was available to testify at the trial.
The State Court of Appeals ruled in October 2011 that even if accepting the nod as evidence was constitutionally infirm, “any error was harmless beyond a reasonable doubt.”
The court’s ruling also cited “overwhelming evidence” that placed Porco at the family’s home at the time that the crimes were committed. That evidence included video recordings from traffic cameras, which showed Porco driving from the University of Rochester, where he was attending school, to the Capital District hours before the crimes, the de-activation of the family’s home alarm system shortly before the assault and the testimony of a neighbor who said he saw Porco’s yellow Jeep Wrangler leaving his parent’s home close to 4 a.m. the morning of the attacks.
Porco is serving 46 years to life in state prison Clinton Correctional Facility in the Adirondacks.
Kindlon said “generally speaking” once the habeas corpus proceedings are brought to a conclusion, there would be no more appellate proceeding options available to Porco, effectively ending their chances to overturn the ruling. This process could take up to a year to conclude.
“We will do everything in our power to find a solution to this problem for our client,” said Kindlon.
Some previous article written by The Spotlight:
Our January 2005 Story
Our June 2006 Story
Our September 2011 story
Our October 2011 story
The US Supreme Court filing dates and decisions can be found here.