As you first read here on Completely Legal, Westchester County Judge Rory Bellantoni is resigning from the bench as of June 8. Bellantoni handed in his resignation letter, I’m told, one day after he was harshly criticized by an upstate judge over his controversial ruling that allowed Richard DiGuglielmo of Dobbs Ferry to be released from prison 10 years after his murder conviction for fatally shooting a man outside of his family’s deli.
State Supreme Court Justice Patrick J. McGrath was dealing with a Rensselaer County killer who was using Bellantoni’s decision on the DiGuglielmo case to get his conviction overturned. The killer argued that, like DiGuglielmo, he couldn’t be guilty of depraved indifference murder because, in fact, he intentionally killed someone. The law was changed a few years ago to ban prosecutors from charging someone with intentional murder AND depraved-indifference murder, and the Rensselaer killer wanted the law to be applied retroactively as it was for DiGuglielmo, saying there was insufficient evidence to uphold his depraved indifference conviction.
McGrath noted that judges in Federal Court and State Appellate Court denied DiGuglielmo’s appeals. He also noted that in 2004, another state judge ruled that it was improper to challenge trial evidence after the jury handed down its verdict and denied DiGuglielmo’s 440 motion, which challenges deparaved indifference murder convictions based on intentional versus reckless conduct.
McGrath blasted Bellantoni, saying his decision to grant DiGuglielmo’s 440 motion “is without basis under New York law.” He went on to say this:
“Judge Bellantoni ignored the mandatory denial requirements … in granting the defendant’s 440 Motion. Judge Bellantoni was required by statute and precedent to deny the defendant’s second 440 motion in spite of how unjust it may have seemed to him.”
“A judge should follow the law, not create it,” McGrath concluded, and denied the Rensselaer killer’s appeal.
By granting the 440 motion, Bellantoni allowed a hearing to take place, where a witness recanted his testimony that DiGuglielmo’s father was in imminent danger by Charles Campbell, which DiGuglielmo, an off-duty NYPD officer, said promoted him to shoot and kill the man he thought was going to beat his father to death with a baseball bat. The witness said he felt that Dobbs Ferry police pressured him to change his story in 1997 to make DiGuglielmo seem more guilty. Based on that, Bellantoni threw out the 1998 conviction last year, and DiGuglielmo remains a free man today.
An appeal of Bellantoni’s decision is now before the Appellate Court. A hearing date has not yet been set.