A murder defendant whose two trials on the same charge have both ended in hung juries is trying to prevent a third trial, arguing that the Suffolk prosecutor was so outrageous during his closing argument in the last trial that trying it again would amount to double jeopardy.
David Belton, 26, of the Bronx, is one of two people charged with second-degree murder in the death of Michael Sinclair of Brooklyn.
Prosecutors say Belton, his friend, Daniel Rivera, and Rivera's girlfriend, co-defendant Noriella Santos, lured Sinclair to West Babylon to rob him and then killed him when his wallet was empty. Rivera has not been charged.
In a motion submitted to the Appellate Division, Belton's attorney, John Scarpa Jr., argues that Assistant District Attorney Robert Biancavilla and Suffolk County Court Judge James Hudson abused Belton's rights so badly during the last trial in February that he should not be tried again.
"It's based upon the assistant district attorney's egregious conduct, commenting on my client's right to remain silent and challenging me to go to confession" during his summation, Scarpa said.
Three times, Biancavilla highlighted Belton's decision not to testify, even after Hudson sustained an objection after the first time.
"Ask yourselves what you would have done," Biancavilla told jurors. "I'm asking you to consider the facts in this case and what you would have done if you were innocent of the charges against you."
Because the Constitution gives everyone the right to remain silent, courts usually don't permit jurors to consider a defendant's silence negatively.
In his summation, Biancavilla said he was making an appropriate response to Scarpa's closing argument, in which Scarpa told jurors that a defendant would stay silent "if the evidence is filled with holes and weaknesses and doubts."
Biancavilla called Scarpa's motion "frivolous," adding: "I don't think he'll prevail on the merits."
Scarpa also argued in the motion that Hudson improperly allowed the jury to hear Santos' confession to police, in which she implicated Belton. Defendants' statements are often ruled inadmissible against co-defendants, but Hudson allowed the jury to hear it to "complete the narrative." Scarpa said that violated Belton's constitutional right to confront witnesses against him, because he had no opportunity to cross-examine Santos.