Responding to a Suffolk jury's question, a State Supreme Court justice told the panel Wednesday that it could convict a Queens man on two separate murder counts for the October 2008 shooting of Nesconset attorney James DiMartino.
The jury of seven women and five men considering the charges against Darnell Festus, 24, had asked Justice C. Randall Hinrichs whether it could find Festus guilty of both first-degree murder and second-degree murder for the slaying of DiMartino, 44, in a Commack parking lot.
Festus has pleaded not guilty to both murder counts and to second-degree conspiracy in connection with DiMartino's death.
The jury will resume deliberations Thursday. The panel met for more than seven hours Wednesday, its second day of deliberations, without reaching a verdict.
Prosecutors say Festus and two other people were paid $10,000 by DiMartino's business partner, Ronald Thornton, to kill DiMartino.
In answering a note from jurors, Hinrichs said they could convict Festus of both murder counts. He then read the legal definitions of the three counts facing Festus.
The first-degree murder count alleges that Festus agreed to be paid to kill DiMartino. The second-degree murder count accuses Festus of killing DiMartino while robbing him. The conspiracy count says Festus and others conspired to murder DiMartino, Hinrichs said.
Prosecutors say Festus took DiMartino's wallet after shooting him.
In a written statement to police, Festus said he intended only to rob DiMartino, but shot him when DiMartino approached him. Festus' attorney, Jason Bassett of Central Islip, has said the statement was coerced by detectives.
Wednesday, jurors also asked to see security video from a hotel where Festus and two alleged accomplices stayed before DiMartino was killed, and to see photos of a palm print that prosecutors say Festus left on a vehicle parked in the restaurant parking lot where DiMartino was killed.
Thornton, 39, of Nesconset, is serving a life sentence in an upstate prison after being convicted earlier this year of first-degree murder in DiMartino's death.
Prosecutors say Thornton hired a stripper, her ex-boyfriend and Festus to kill DiMartino to cover up mortgage frauds committed by Thornton.
The stripper, Monique Randall, 30, of St. Albans, Queens, has pleaded guilty to second-degree murder and is awaiting sentencing. She testified against both Thornton and Festus.
Randall's former boyfriend, Donovan Raysor, 22, also of St. Albans, has pleaded not guilty to first-degree murder and is awaiting trial.