The state's highest appellate court will consider later this month whether a Farmingville man was properly convicted of manslaughter for choking to death an off-duty Suffolk correction officer who was working as a bouncer at a Southampton bar.
Anthony Oddone, 30, was sentenced to 22 years in prison in 2010 for killing Andrew Reister, 40, of Hampton Bays.
The two struggled after Reister, working at the Publick House in Southampton, told Oddone to stop dancing on a table in August 2008. Reister died two days later of cardiac arrest. In 2011, the Second Department of the state Appellate Division reduced the sentence by 5 years while upholding the conviction. Oddone's appeal will be heard by the Court of Appeals.
"Tony Oddone is innocent," his appeal, filed by attorney Marc Wolinsky of Manhattan, begins. "He has spent five years in prison, and was sentenced to 17, for a tragic accident, not a crime. . . . he should be set free."
The wide-ranging appeal seeks to undo the conviction based on problems during the trial in several areas: testimony about how long Reister was choked and juror misconduct.
The Innocence Project, a legal advocacy group that fights what it believes are wrongful convictions, has filed a brief in support of the arguments on how long Reister was choked.
But the argument by the Suffolk district attorney's office in support of the conviction is as blunt as the appeal is.
"This was a simple case," Assistant District Attorney Anne E. Oh wrote in her brief. "Numerous eyewitnesses testified that defendant placed Andrew Reister in a headlock and continued to choke him even when it became apparent that Reister was in grave danger. . . . Notwithstanding their pleas, defendant maintained his death grip and applied such tremendous force that he fractured two bones and caused massive trauma . . . to the muscle and tissues in Reister's neck."
In addition, Michael Miller, chief of the district attorney's appeals bureau, said "the Appellate Division was correct in that there was no question of law for the court to consider."
Wolinsky argued that eyewitnesses and the deputy medical examiner, Dr. James Wilson, were wrong about how long Oddone choked Reister, and that state Supreme Court Justice C. Randall Hinrichs prevented the defense from exploring that. Wilson testified at the trial that injuries to Reister's blood vessels in his head were caused by having his neck compressed for 2 to 4 minutes.
The appeal said those opinions had no basis in medical science and should have been disallowed by Hinrichs. He said medical experts say a fatally irregular heartbeat can begin just 10 to 15 seconds after neck compression. Oh wrote that Wilson's medical opinion was valid and based on years of practice.
"The mere fact that defendant disagrees with Dr. Wilson's conclusions does not render it invalid," she wrote.
The appeal takes issue with Hinrichs' refusal to allow the defense to call an expert witness on the fallibility of eyewitnesses. If psychologist Steven Penrod of the John Jay College of Criminal Justice had testified, Wolinsky said, he would have told the jury "that eyewitnesses routinely overestimate the duration of relatively short events" and that memories are flexible and can be influenced by news reports and others' recollections.
Miller said there was no need for Penrod to testify because several people saw how long Oddone choked Reister.
M. Chris Fabricant, the Innocence Project's strategic litigation director, said these are important issues. "Fifty percent of wrongful convictions involve the misapplication of scientific evidence," he said. "We're concerned when the defense or the prosecution is not given the opportunity to contest these issues."
Finally, the appeal criticized two jurors for deliberating improperly. Frances Oka, the final holdout, voted for conviction the day after she bailed out her son on drug charges.
"Her son faced prosecution by the very same D.A.'s office that was seeking a vote of 'guilty' from [her] and her fellow jurors," Wolinsky wrote.
Wolinsky said another juror, Tammy Buckley, failed to disclose she had a full-time civil service job lined up with the Suffolk police as soon as the trial ended.
Oh responded that Oka's claim that she was influenced by her son's arrest was nothing more than typical post-verdict remorse. As for Buckley, Oh wrote that jurors have no obligation to notify the parties of changes in their employment.
The case will be argued on Nov. 14.