Bail was denied to Anthony Fortunato, one of four defendants charged in the killing of Michael J. Sandy.
By: PAUL SCHINDLER | Bail was denied to Anthony Fortunato, one of four defendants charged in the killing of Michael J. Sandy, at a February 7 hearing before state Judge Jill Konviser-Levine in Brooklyn.
And oral arguments over the Fortunato motion made by his attorney, Gerald J. DiChiara, and Anna-Sigga Nicolazzi, a prosecutor in the Brooklyn district attorney's office, suggested some lines of defense that may be pursued at trial and the likely prosecution response.
Fortunato's motion offered the pledge of two properties with a value of $1.2 million, including the home in which his mother and two younger siblings live, as security for his release on bail.
Fortunato, John Fox, 19, and Ilya Shurov, 20, are charged with second-degree murder as a hate crime, attempted robbery in the first degree as a hate crime, manslaughter, and assault, also as hate crimes in the Sandy killing. All four defendants are in custody. If convicted on the top count, the three currently facing trial could serve 25-years-to-life in prison.
Allegedly, one of the defendants-including Gary Timmins, 16-posed as a gay man during an October 8 Internet chat and lured Sandy, a gay African American, to Plumb Beach in the Sheepshead Bay section of Brooklyn. The men allegedly tried to rob Sandy who was struck by a car when he fled onto the Belt Parkway. Sandy died on October 13, one day after his 29th birthday.
Timmins pleaded guilty to one count of attempted robbery in the second degree as a hate crime on October 25 and is scheduled for sentencing on March 21.
Arguing that the evidence against Fortunato is all based on statements from the other defendants, DiChiara suggested that it would not be admissible, and that Fortunato's case, was “eminently triable.” He also said that none of that evidence “has him having any role in the chase.” Proving that a defendant chased Sandy onto the highway would likely enhance their culpability in the eyes of a jury.
“That is not so,” Nicolazzi said, responding to DiChiara. “There are multiple sources of evidence against the defendant.”
After the hearing, the prosecutor declined to elaborate on that statement and DiChiara did not return a call seeking comment.
The defense attorney also challenged the hate crime statute enhancement on his client's charges.
“There was no hate,” he said. DiChiara emphasized several times that given the pledge of his mother's home, Fortunato did not pose a flight risk. Nicolazzi insisted that in view of the charges he faces, “There is no amount that can sufficiently secure his return to court.”
She challenged DiChiara's claim that his client had voluntarily made himself available to authorities, maintaining that when police went to his home to arrest him after his indictment, they were told that he had been hospitalized for psychological problems related to the recent death of his father, but were refused details on where.
The prosecutor added that defense statements that Fortunato was suffering psychological problems suggested increased potential that he might choose to flee the jurisdiction if released on bail.
Konviser-Levine set the next hearing date for March 14, at which time she will rule on a prosecution motion seeking hair samples for DNA testing from the three defendants facing trial.
Among those in attendance at the hearing were Sandy's parents, Zeke and Denise, who live on Long Island, other family members, more than a dozen friends, and Ivana Chapcakova, a hate violence counselor-advocate at the New York City Gay and Lesbian Anti-Violence Project.
In a press statement, AVP's executive director Clarence Patton praised the judge for ensuring “that Fortunato will indeed be present to face the consequences of his and his accomplices' vile plan.”
He noted that Esat Bici, one of the defendants in the 1990 anti-gay murder of Julio Rivera in Jackson Heights Queens, free after his conviction was overturned on technical grounds, disappeared and never stood trial. Bici was found dead in Mexico in 2002.
Tony Bruce, who had been friends with Sandy for about three years, said, after the hearing, that he and others would “continue to follow the case for the duration.”
Zeke Sandy spoke of the emotional turmoil he and his wife have endured since their son's death, but said they were satisfied that the murder trial would make the clear the facts of the crime.
“When I can confidently speak on this, I will have something to say,” he said. “Somebody needs to speak about what is going on in America.”