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Citing Trial Errors, N.Y. Appeals Panel Upsets Sword Murder Conviction

The near-decapitation of a retired New York City police officer made national headlines in 2005

A split state appeals panel has upset the murder conviction of a Long Island man convicted of killing his allegedly abusive stepfather with a Samurai sword.

The Appellate Division, Second Department, has ruled that a series of errors by the trial court judge, Suffolk County Supreme Court Justice Robert W. Doyle, may have led to a faulty verdict.

"[W]e find the conclusion inescapable 'that the verdict of guilt in this case may not be the result of honest fact-finding,' but rather, the result of the combination of errors by the trial court," the 3-1 majority concluded in People v. Gibian, 2007-01192.

Those errors included precluding the defendant, Zachary Gibian, from testifying in detail about his mother's alleged confession to the murder, as well as failing to sufficiently investigate several instances of jury misconduct. The judge also, without prior warning, imposed a time limit midway through the defense's summations.

Justices Peter B. Skelos, Leonard B. Austin and Sheri S. Roman formed the majority. Justice Randall T. Eng dissented.

The murder of retired New York City police officer Scott Nager, 51, made national headlines in February 2005 due to the viciousness of the attack -- two strikes with a razor-sharp sword left Mr. Nager nearly decapitated -- and because the teen son of a former New York Mets All-Star was implicated in the cover-up.

Within hours of Mr. Nager's death, his 18-year-old stepson confessed to the murder. Mr. Gibian said he twice struck Mr. Nager with a Samurai sword in the neck because Mr. Nager had abused both him and his mother, Laura Nager, who suffered from multiple sclerosis.

At his trial in December 2006 and January 2007, Mr. Gibian testified that his 48-year-old mother had in fact killed Mr. Nager, and that he had falsely confessed to protect her.

Justice Doyle limited Mr. Gibian's testimony on that issue, precluding him from providing specific details of his mother's alleged confession. The defense called the precluded testimony essential, as it explained why Mr. Gibian's own confession so accurately described key aspects of the murder, such as the angle of the attack and the position of the furniture.

A jury convicted Mr. Gibian of second-degree murder, and Justice Doyle sentenced him to 25 years to life in prison.

On Wednesday, the Second Department vacated the conviction and ordered a new trial.

The panel found that Justice Doyle erred by not admitting Mr. Gibian's testimony regarding his mother's purported confession under the "state of mind" hearsay exception.

"The substance and accuracy of the mother's out-of-court statement is important to the state of mind purpose for which the defendant sought to offer such testimony," the majority wrote. "Under the defendant's theory of the case, such testimony established why the defendant confessed and how the defendant knew the exact details of the murder."

The majority also found that Justice Doyle's response to evidence of potential juror misconduct was "inadequate" and deprived Mr. Gibian of a fair trial.

Most of the misconduct centered on Juror 11, a court officer who interjected "her professional knowledge" into the deliberations by "threatening that a mistrial would be declared as a result of a fellow-juror's note-taking" and describing the court's deadlock charge as an "Allen charge."

Finally, the majority concluded that Justice Doyle "improvidently exercised" his discretion by imposing a time limit midway through the defense's summation.

Justice Eng disagreed with all three of the majority's grounds for reversal and dissented in a 17-page opinion.

"While I believe that the exclusion of the defendant's proposed hearsay testimony was entirely proper, even assuming that it was not, the defendant's right to present a defense was not curtailed in any meaningful way, because the substance of his proposed testimony was clearly conveyed to the jury," Justice Eng wrote.

He also said there was no evidence of juror misconduct that rose to a level warranting reversal and that the time-limit on the defense's summations was proper.

Mr. Gibian was represented on appeal by Joseph Ferrante and William J. Keahon of Keahon, Fleischer, Duncan & Ferrante in Hauppauge.

Mr. Ferrante said that the numerous grounds for reversal will make the appellate decision easier to defend, should the Suffolk County District Attorney's Office seek leave to appeal.

"The more mistakes the better, that's for sure," Mr. Ferrante said. "I do believe that any one of [the mistakes] could be enough on its own, though certainly the cumulative effect is much more dramatic than any one by itself."

Assistant District Attorneys Steven A. Hovani, Guy Arcidiacono and Glenn Green appeared on behalf of the Suffolk County District Attorney's Office.

District Attorney Thomas J. Spota said he will appeal the ruling.

"I believe there are significant issues that deserve to be heard by the highest court in the state," he said.

Mr. Gibian's friend T.J. Harrelson, son of the former Mets shortstop, pleaded guilty in January 2007 to hindering the prosecution by helping Mr. Gibian dispose of evidence.

Justice Doyle last made headlines by granting a motion to drop the indictments against Martin Tankleff, who as a teen was convicted in the 1988 killings of his parents. The indictments were officially dismissed in July 2008, seven months after the Second Department, based on new evidence, ordered a new trial for Mr. Tankleff, who spent 17 years in state prison.

Mark Fass

New York Law Journal

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