A state appellate court in Brooklyn upheld two Suffolk homicide convictions this week.
In separate decisions, the Appellate Division Second Department ruled that the manslaughter conviction of Christopher Foster for killing his infant son should stand, as should the murder conviction of David Newbeck for shooting to death his best friend’s girlfriend.
Foster, 33, of Kings Park, is serving a 20-year sentence after being convicted of first-degree manslaughter in the Oct. 11, 2011, death of his 42-day-old son, Jonathan Hertzler.
After the 2015 conviction, defense attorneys produced evidence suggesting that the boy’s drug-addicted mother, Clarissa Hertzler, might have done it.
That evidence came in the form of testimony at a post-trial hearing from a friend of Hertzler’s schizophrenic mother, Barbara Hertzler. The friend testified that Barbara Hertzler told her she believed her daughter was the one who crushed Jonathan’s skull that morning in their home.
Both Barbara and Clarissa Hertzler have since died.
In its ruling, the appellate court noted that only the neighbor testified at the hearing and not Barbara Hertzler, even though she was in the courthouse at the time. The neighbor’s testimony was hearsay, not normally admissible at trial, and the court ruled that the neighbor’s testimony likely wouldn’t have made a difference.
Foster’s appellate attorney, Steven Feldman of Uniondale, disagreed with the ruling.
“This is the first case in the history of the United States where a mother has accused her own child of committing the murder,” he said. If a jury had heard that, he said it would have reached a different verdict.
Newbeck, 39, of Massapequa, was convicted of second-degree murder and sentenced to 25 years to life in the August 2010 shooting of Mandy Jo Jenkins, 30.
Newbeck and his childhood friend Joseph DeFelice, 37, of North Amityville, were convicted of second-degree murder in separate trials in the death of Jenkins. Prosecutors said Newbeck wanted Jenkins dead because she was pursuing an identity-theft charge against his then-girlfriend, Jennifer Russini.
Newbeck’s appeal argued that Suffolk police violated his rights by using one of his friends to question him surreptitiously, leading to the discovery of Jenkins’ discarded body in North Amityville.
“Contrary to the defendant’s contention, his friend did not act as an agent of the police in violation of the defendant’s right to counsel,” the appellate court ruled. The friend offered information and the police merely accepted it, the court ruled.