THREE eyewitnesses were wrong in NY case

After spending 22 years in prison for crimes he didn’t commit, Anthony J. Capozzi moves another step closer to freedom Monday when an Erie County judge holds a hearing to erase his wrongful conviction in two Delaware Park rapes. Thomas C. D’Agostino, Capozzi’s attorney, said his client’s long search for justice appears almost over. He expects him to be free by week’s end.

Once Capozzi is back with his family, D’Agostino said, he is prepared to file a suit against the state for his wrongful imprisonment. “The sentiment right now is let’s just get through this part of it,” D’Agostino said. “There’s a lot of things to be happy for right now and a lot of things to soak in right now. Let’s get through that.”

D’Agostino, who has always been convinced of Capozzi’s innocence, said no amount of money could ever give Capozzi back what he lost. “It’s not possible, there’s just no way to compensate him for 22 years in prison,” D’Agostino said. “It’s beyond imagination how it could possibly be done.” The lawyer said any compensation will have to take in effect Capozzi’s mental illness and his future care. Before he went to prison, he suffered from schizophrenia, a condition that apparently has grown worse. “Anthony is 50 years old,” D’Agostino said. “Someday, his parents aren’t going to be there. Hopefully, he’d be able to have enough in terms of financial security that in the future, he’d be able to provide for himself and take care of himself in a very comfortable way.”

D’Agostino called his defense of Capozzi one of the most frustrating yet satisfying cases he has ever had as a trial lawyer. “I’ve never had one more disappointing or one more satisfying,” he said. “This one ran the gamut.” But he remembers feeling so strongly that the jury convicted the wrong man that he issued a warning after Capozzi’s conviction for the Delaware Park rapes. “I said women in Buffalo shouldn’t take comfort in the fact that Anthony Capozzi was convicted of these crimes,” he said. “He didn’t do them. I suggest that you not run in Delaware Park alone. Because the person who did these is still out there. “I meant it,” D’Agostino said. “It wasn’t just lawyer talk. In my heart, I didn’t believe that this guy did it.”

DNA evidence at the time of Capozzi’s trial wasn’t even admissible in the courts, and D’Agostino had to contend with the testimony of three women who identified Capozzi as their assailant. “Maybe one’s wrong, maybe two are wrong, but jurors sit there and say how can three people possibly be wrong?” he said. “They were all so positive it was him.”

Judge Shirley Troutman will hold what is called a 440 hearing under the state’s Criminal Procedure Law at 2 p.m. Monday. The hearing, required by law before Capozzi can be released, is expected to vacate Capozzi’s conviction and the sentence he received after he was found guilty Feb. 6, 1987. He was sentenced to a term of 11 to 35 years. D’Agostino will ask for Capozzi’s freedom based on DNA evidence on laboratory slides recently discovered in Erie County Medical Center.

Erie County District Attorney Frank J. Clark is expected to present Troutman DNA test results from the county’s crime lab. Those tests show that DNA in slides taken from the rape victims matches that of the man charged as the Bike Path Killer, Altemio Sanchez. Clark, in announcing the belated discovery of the DNA slides, said last week that his office will not oppose the conviction being set aside and will ask that the charges be dismissed in the interest of justice.

The state Department of Correctional Services Web site shows Capozzi was transferred from Attica Correctional Facility to the custody of another, unnamed agency March 8. He is known to be a patient in a Central New York psychiatric facility run by the state Office of Mental Health.

D’Agostino said Capozzi’s mental illness could complicate his speedy release this week. “At this point, to be honest with you, we don’t know whether he’s going to go directly home or whether he’s going to go somewhere for evaluation,” his lawyer said. “We’re not sure of that yet, that’s one of the things we’ve been working on almost all day today.”

A corrections spokeswoman said her department could process Capozzi’s release immediately following the judge’s order. But a mental-health spokeswoman, who is barred by law from discussing individual cases, said her agency in general would release a patient after its counselors determined the best course for future treatment.

D’Agostino said fellow lawyers have told him they were surprised he had kept his Capozzi file after all these years. “I kept it,” he said, “because I always hoped there was a chance that I would need it again.”

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