An appellate lawyer argued Monday that a Suffolk judge got it wrong last year when he refused to reverse a Kings Park man’s conviction for killing his infant son after the boy’s grandmother suggested the boy’s mother was the actual killer.
But judges from the Appellate Division Second Department, sitting at Hofstra University in Uniondale, expressed skepticism about what the grandmother — who suffers from schizophrenia and who heard voices telling her to kill — said about her daughter after the verdict. But they also expressed frustration with issues raised in the case that ended with Christopher Foster, 33, being convicted of first-degree manslaughter in the Oct. 11, 2011, death of his 42-day-old son, Jonathan Hertzler.
Justice Leonard Austin said everything about the case was “very troubling,” noting the boy was in an apartment with his schizophrenic grandmother, his drug-addicted mother and Foster. Both the grandmother, Barbara Hertzler, and the mother, Clarissa Hertzler, have died since Foster’s conviction in 2015, lawyers in the case said.
“It was a terrible house for an infant to be in,” said Suffolk Assistant District Attorney Thomas Costello. But he said the jury got the verdict right, and state Supreme Court Justice William Condon ruled correctly after a post-trial hearing.
In that hearing, Barbara Hertzler’s friend and neighbor testified that Hertzler told her she believed her daughter, Clarissa, was the one who crushed Jonathan’s skull that morning. She told her friend she hadn’t come forward before the trial because she was afraid of her daughter.
Immediately after she said that, the neighbor said Barbara Hertzler had a hallucinatory breakdown, in which she collected imaginary objects off the floor, gave Nazi salutes and filled garbage cans with water.
Foster’s appellate lawyer, Steven Feldman of Uniondale, said Hertzler made her remarks to her neighbor while lucid. He said it was unprecedented for an infant’s grandmother to accuse her own daughter of homicide even after the father was convicted. Feldman said that because there was no evidence pointing to Foster, if a jury had known what Barbara Hertzler said to her neighbor it would have reached a different verdict.
“The people never proved at trial who caused these injuries,” Feldman said.
But the judges were troubled that it was the neighbor and not Hertzler — who was alive and available at the time — who testified at the post-trial hearing. The neighbor’s testimony, therefore, amounted to hearsay, which normally is not admissible in court. Feldman urged the judges to follow precedent that has established an exception to that rule in cases such as this.
Justice Sylvia Hinds-Radix asked why Hertzler didn’t testify herself.
Feldman said the trial lawyer, David Besso of Bay Shore, relied on Condon’s assurance that he would consider the neighbor’s hearsay testimony.
The appeals court typically rules within a few weeks.
Feldman last month also filed a federal habeas corpus motion, seeking to set aside the verdict. That motion covers much of the same ground as the state appeal, but also notes that Condon did not allow the defense to cross-examine Clarissa Hertzler about a ruling by then Family Court Judge David Freundlich that found she had caused the baby’s death.
Hertzler, in Family Court, invoked her Fifth Amendment right not to incriminate herself when asked about her own actions.