Arguing an appeal for one of four men convicted in the 2006 killing of Michael Sandy, the attorney for Anthony Fortunato said the evidence at trial showed his client never formed the legally required state of mind to find him guilty of manslaughter as a hate crime and his 2007 conviction on that charge should be overturned.
“The key issue in this case is whether or not the evidence was legally and factually sufficient to prove manslaughter beyond a reasonable doubt,” said Richard E. Mischel, Fortunato’s attorney, at a June 3 hearing before four state appeals court judges.
In 2006, Fortunato, 24, and three other men lured Sandy, a 29-year-old gay man, to a secluded Brooklyn beach where they tried to rob him. Sandy fled on to a nearby highway where he was struck by a car and killed. Fortunato was sentenced to seven-to-21 years. His earliest possible release date is October 2013.
The testimony at trial was that Fortunato suggested the plan for the crime to his co-defendants, but that it was John Fox, 23, and Ilya Shurov, 24, who chased Sandy onto the highway. There was conflicting testimony about Fortunato’s involvement in the later robbery.
Fox was convicted on robbery and manslaughter as hate crimes charges. He was sentenced to 11-to-21 years with an earliest possible release date in 2017. Shurov pleaded guilty to manslaughter and robbery as hate crimes and was sentenced to 14-to-17 years. His earliest possible release date is 2021.
In a deal, Gary Timmins, 19, testified for the prosecution in exchange for a four-year sentence. He pleaded guilty to second degree attempted robbery as a hate crime and attempted first degree assault. Timmins was released from prison in March.
Mischel said the verdict by Fortunato’s jury showed that they did not believe he participated in the robbery, the act that drove Sandy to the highway and requires intent to forcibly steal. Manslaughter requires that a defendant act recklessly, but, in this case, that state of mind is predicated on first trying to rob Sandy, Mischel said.
“As a consequence of the intentional act, there was a reckless act,” he said. “My client had no violent intentions at all and so the jury found.”
Fortunato testified in his own defense and said that he left the scene when the robbery began. Another witness said Fortunato said the day after the crime that he had rifled through a bag in Sandy’s car though no physical evidence supported that. Fortunato also told his jury that he warned the others against using violence.
“Mr. Fortunato said there was to be no violence, there was to be no fooling around, we’re just looking to scam him,” Mischel told the judges.
Sandy was lured to the beach thinking he would have sex and smoke marijuana with just Fox. Seth M. Lieberman, the assistant district attorney who argued for the Brooklyn prosecutor’s office, said that Sandy was set upon by four men at the beach and panicked.
“This confirms the reasonable foreseeability, just the fact that it was four men,” Lieberman said. “There are four guys against one...He’s a gay man. The incidence of gay bashing is quite frequent.”
To be convicted of manslaughter, a defendant must create or contribute to “a substantial and unjustifiable risk” that another’s death will occur and ignore that risk. The conduct must also be “a gross deviation from the standard of conduct that a reasonable person” in the same situation would observe.
The judges, who gave each attorney 15 minutes to make their arguments, asked a few questions.
“Could he have foreseen that the fellow would have run from Plumb Beach?” Judge Ariel E. Belen asked Mischel who reiterated that the jury found that Fortunato did not aid in the robbery. “I respectfully submit that his action was not the cause of Mr. Sandy’s death,” Mischel said.
“Stating it another way, your client’s response to those actions by his confederates was to rummage through the victim’s car?” said William F. Mastro. Mischel said “The jury obviously did not credit that evidence.”
When Lieberman said that Sandy was attacked by four men, Belen asked “Do you know anything about any violent tendencies on the part of these people?” Lieberman said “This isn’t rocket science. Put yourself in Mr. Sandy’s position.”
The other judges were Anita R. Florio and Sheri. S. Roman.