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Defense urges appeals court to throw out murder conviction

David Newbeck, in court in Riverhead on Monday,

David Newbeck, in court in Riverhead on Monday, July 14, 2014, before Newbeck was sentenced in the Aug. 23, 2010, shooting death of Mandy Jo Jenkins, of Amityville. Credit: James Carbone

A Massapequa man’s murder conviction for shooting a woman to death should be thrown out because Suffolk police violated his rights by using one of his friends to question him surreptitiously, an appellate attorney argued Monday in Brooklyn.

But an appellate prosecutor responded that police did nothing improper while investigating David Newbeck, now 39, in the August 2010 death of Mandy Jo Jenkins, 30. And even if police did overstep their limits, Assistant District Attorney Karla Lato said that would amount to “harmless error” in a case overflowing with evidence against Newbeck.

Newbeck and his childhood friend, Joseph DeFelice, 37, were convicted of second-degree murder in separate trials in the death of Jenkins, DeFelice’s girlfriend. Prosecutors said Newbeck wanted Jenkins dead because she was pursuing an identity theft charge against his girlfriend, Jennifer Russini.

So, prosecutors said, DeFelice went to walk his dog and let Newbeck into the apartment he shared with Jenkins in a North Amityville warehouse. Newbeck shot Jenkins four times in the head and once in the chest, and then wrapped up her body and dumped it on a dead end next to a cemetery in Lindenhurst.

In his argument to the Appellate Division Second Department, Louis Mazzola of the Suffolk Legal Aid Society said the body’s discovery in October 2010 was the result of improper police work. Newbeck had already invoked his rights to remain silent and to an attorney by then, so police could not question him. But a friend of his, Brian Muhlhauser, was acting as an informant.

Mazzola argued that Muhlhauser was acting as an agent of police and illegally questioned Newbeck on their behalf.

Authorities “knew that this witness was in a position to obtain additional information [from Newbeck], which was the location of the victim,” Mazzola said.

But Justice Joseph Maltese seemed skeptical of that argument, noting that Det. Thomas Walsh repeatedly urged Muhlhauser to talk to his own attorney and didn’t offer him a break on his pending criminal case.

On the night that Newbeck was going to move the body, Lato said the only instruction Walsh ever gave to Muhlhauser was, “Let me know where you are.” That hardly amounted to having him act as an agent of police, she said.

In the middle of the trial, Suffolk County Court Judge John Toomey Jr. held a hearing on the issue and ruled that police handled Muhlhauser properly.

Knowing where Muhlhauser — and therefore Newbeck — were that night allowed Walsh to discover Jenkins’ body.

Newbeck escaped that night, however, fleeing first to Alabama and then to Texas. He was arrested there while boarding a plane to Ecuador.

Lato said Newbeck confessed his actions to at least four different people by then. And then, in a recorded phone call from a Texas jail, Newbeck described to his mother the tarp in which he wrapped the body.

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