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Guilderland Archives The Altamont Enterprise, June 28, 2007
The Altamont Enterprise Feature Story for the week of June 28, 2007
Westervelt wallows in prison, maintaining his innocence as he re-works his case
By Jarrett Carroll
DANNAMORA Erick Westervelt is haunted by a cigarette butt.
He has circled it in a picture of a crime scene and says police never tested it for DNA.
The crime scene was in Delmar in 2004, at the home of Timothy Gray. Gray was brutally bludgeoned there and left to die.
Westervelt had fought with Gray over a woman they both loved. He signed a confession and was convicted of murder. At 25, Westervelt is inside the 60-foot concrete walls of the Clinton Correctional Facility, serving a 25-to-life sentence and maintaining his innocence.
Westervelt has four large binders, each nearly four inches thick, neatly printed and bound. Hes filled them with every aspect of the trial that convicted him of murder.
One of binders is titled, "Police Investigation," with words in parenthesis underneath that say, "or lack thereof."
Everything from autopsy photographs to supporting depositions and statements is inside of the binders.
The life-long Guilderland resident describes himself as an "innocent man wronged by an unjust justice system."
Grays killer or killers are still out there, Westervelt says, and he is trying to get the truth out, and, when it comes out, he will be exonerated.
As for serving a sentence for a crime that he adamantly denies doing, Westervelt said that he is innocent and "cannot put into words" how he feels about first losing the woman that he loved and then being convicted of murdering her boyfriend.
"It’s tough"It’s like being on top of a mountain and then completely falling down to the ground," Westervelt told The Enterprise in an exclusive prison interview. "Except that it was a gradual descent."
An appeal of Westervelts conviction will be heard this summer, according to his attorney. (See related story.) Westervelt appeared confident, yet frustrated at times, during his nearly five-hour interview.
"I don’t know who killed Tim Gray," Westervelt told The Enterprise. "I was at home, sitting there watching the game with my father Yankees-Twins, game one, division series. I recalled very specific events from that game"I told the cops the same thing, they don’t believe me, they believe what they want to believe."
Westervelt grew up in suburban Guilderland, raised by state-office workers. During his trial, he was described by his peers and high-school coaches as a passive young man; they said it would be "out of character" for him to commit such a terrible and violent crime.
Westervelt played football and baseball for Guilderland High School, graduating in 2000.
"I never really lived anywhere else, that’s all I really knew," Westervelt said of Guilderland.
His family a brother and his parents live on Salvia Lane, in a middle-class neighborhood. (See related story.)
"When we moved in that house, there were only six houses on the street"If I get back home, it’s going to be like ‘Wow, what happened here,’"I probably won’t even recognize some of it."
Three friends who knew him since kindergarten testified to his good character at the murder trial.
Westervelt said he lost all connection with his hometown following his conviction and that his only visitors are his parents and brother, and sometimes his aunts. He has only received one letter from former friends since being sentenced, Westervelt said.
A former friend and schoolmate at Guilderland told The Enterprise that he "felt bad" about not writing to Westervelt, but that he "felt weird" about his conviction.
When talking about taking the long drive from Albany to the prison, which is near the Canadian border, Westervelt said, "I don’t know. I’ve only made the trip once."
The Clinton Correctional Facility is one of New York’s oldest maximum-security prisons. Located in Dannamora in Clinton County, the prison is 10 miles north of Plattsburgh and nicknamed New York’s "little Siberia," because of its isolation and long, cold winters.
The sleepy Adirondack village of Dannamora surrounds the prison as its walls rise above the streets of the villages business district. The large concrete wall along the main road was built in 1887.
Outside the walls, life goes on as normal. People live, work, and shop in the small village. A Ford dealership, an auto-parts store, a liquor store, and a pizza shop are directly across the street from the prison.
On the inside, separate checkpoints and security stops punctuate a walk through thick metal doors and gated hallways with windows of dense shatterproof glass. Various construction and excavation projects were underway last month in the outer courtyard because of springs arrival.
The annexes where prisoners are held have thick wooden desks raised several feet in the air at each entrance to serve as a checkpoint. A faint sterile odor is barely detectable among the 1970s-style infrastructure of tile, fluorescent lights, and iron drop-gates.
Once inside this area, guards no longer carry firearms. The correctional officers walk up and down the halls, carrying three-foot long wooden clubs.
Many of the buildings inside the walls and razor wire have a Victorian facade. Large glass-encased towers manned by armed guards are mounted on every corner of the prison.
Westervelt, carrying his binders, was escorted by a correctional officer inside a large conference room known as the "parole room" for the interview.
The hallway outside the room served as the corridor between the inmates cells and the buildings entrance. The hallway is clearly visible from two large wire-reinforced windows in the room as guards and inmates routinely pass by.
Like clockwork, guards come in or leave every hour during shift changes. Inmates escorted in and out by guards are announced by the sounds of rattling shackles and dragging manacles heard throughout the interview.
Most of the inmates brought into the hallway were quiet and subdued. Others being led out were more vocal, acting rambunctious at times as they let out hoots and howls like a group of high-school students let out after the bell.
Because of his college background and experience with computers, Westervelt works in the print shop, a position that helped land him in the "Honor Block" of the prison.
Westervelt was a senior at the University at Albany before his conviction and had considered pursuing a career in law enforcement.
"It’s surreal, in a really bad way"I don’t want to be here. It sucks, it’s terrible," Westervelt said. "The one good thing about this place is that it’s a lot better than the county jails."
He was transported to a downstate prison for "processing" for a short period of time after his conviction, said Westervelt, before being sent to the Clinton Correctional Facility.
Westervelt said that, while he was in county lockup, after his arrest and during his trial, he was allowed very little time outside his cell and he continually went over the materials of his case in hopes of being found innocent.
"It actually occupies a lot of your time, working and all of that stuff," he said of his current situation. "It’s good because it gets me away from thinking about all this stuff and going over it"A lot of times, especially in the county jail, that’s all I did is go over this stuff.
"It’s so much more depressing and frustrating that you’re not getting the answers and nothing’s going your way," he continued. "But here, from time to time, you think about it, but a lot of times you’re so busy doing something, whether its just stuff you need to take care of before you go outside, or the little personal projects you choose to do"it keeps you busy.
However, Westervelt said, not a day goes by that he does not think about his case or his former life. Westervelt said that he feels sorry for the Grays and their loss, but that they will always blame him for their son’s death because "it’s the comfortable lie."
Christopher Porco is also serving his sentence in the Clinton Correctional Facility. He was convicted in a high-profile case of an ax murder in Delmar that took place five weeks after the Delmar hatchet murder of Gray. Porco, convicted of murdering his father and attempting to murder his mother, is isolated from the prisons general population, Westervelt said, and he has not seen him.
"Some days are worse than others. It depends on what happens. Sometimes I’ll see something on TV"or something else I’ll see will trigger memories," said Westervelt.
Living in a single cell on the Honor Block, Westervelt says that, although his cell is roughly the same size as the one he had earlier in the C block, his personal locker is larger.
"It’s just more freedoms on the Honor Block"you get in for good behavior and working in a program," Westervelt said. "It’s all about how you approach daily life and how you do things."
Some people, he said, are in their cells 23 hours a day and rarely get to go outside.
"You get to go to the commissary every two weeks"You can have Walkmans and stuff, and tapes, and you’ve got people with TVs," Westervelt told The Enterprise. "We get to go to the gym three times a week; I like to play basketball; and I get to go outside every day."
Westervelt also said that people in his block are given a 20-by-20-foot "plot" outside where they can have a picnic table and a small garden if they wish.
"You’re not supposed to, but people do smoke inside"I usually only do outside," said Westervelt. "I’d like to quit eventually, plus inside there’s no air circulation so anybody who smokes inside, it’s just going to linger."
Dismissing many people’s perception of prison rapes, Westervelt said that he "doesn’t see very much of that."
"You hear all those stories about certain things; as far as I can see, a lot of that stuff doesn’t happen. I think that people would be surprised. The media portrays it as different; maybe it happens in other places," Westervelt said. "I mean you see occasional fights here and there, you know, and I’m sure that drugs get circulated around. People get caught with weapons from time to time. But, as far as I’ve seen, you know, there’s not been much of that."
Westervelt, maintaining his innocence, said that one of the hardest parts of his conviction is that people will never treat him the same, even if he were to be exonerated.
"This is going to live with me forever, especially with the Internet and everything"All someone has to do is Google my name"and something’s probably going to come up about the whole situation," Westervelt told The Enterprise. "Even if people believe me and everything, people are still going to think, ‘Why did this guy do this" Is he a murderer" Is he going to hurt me"’ It’s amazing how people paint me"because I didn’t do this."
"We know where he was that night"
By Jarrett Carroll
GUILDERLAND Not having your son return from college one day only to find out he has been interrogated by police and signed a confession to a murder he swears he did not commit may be a parents worst nightmare.
For John and Wendy Westervelt, this is a reality.
Their son Erick Westervelt is serving a 25-year-to-life sentence in the Clinton Correctional Facility for the murder of Timothy Gray. Westervelt continues to maintain his innocence while serving his sentence and his case is up for appeal later this summer.
Mr. and Mrs. Westervelt are both state workers and their Guilderland home is part of a quintessential suburban neighborhood.
Parked outside of that home is the car once driven by Erick Westervelt, a constant reminder of the tragedy that left their son behind bars and another man dead.
The Westervelts say they have lost all faith in the justice system. They provided alibis for Ericks whereabouts the night of the murder. They say he was home, watching a ballgame on television with his father.
Both say it is "impossible" that their son committed the crime.
"This is not a story made for TV. This is real life, this is reality," Mrs. Westervelt said. "I feel scared for other people; They could take another innocent person"I thought our justice system was supposed to protect the innocent."
She went on, "I used to trust the justice system. I don’t anymore. I don’t trust the police."
"You can’t even sleep at night. In two years, I haven’t had a good night’s sleep," Mr. Westervelt said about his son’s conviction. "This thing goes over in my mind again and again"I think Erick became the sacrificial lamb. He became the scapegoat."
"He was here at 9:30 when that guy was getting beaten up," Mr. Westervelt concluded.
Gray was bludgeoned at his Delmar home in 2004 with what police said was a hatchet. He died five days later at Albany Medical Center Hospital. Gray and Erick Westervelt had dated the same woman, Jessica Domery, which police say was the motive for the murder.
"I’ll never understand it," said Mrs. Westervelt. "I know where he was that night. You can’t be in two places at once"It’s devastating, really, because you can’t do anything about it."
Mr. and Mrs. Westervelt testified in court that their son was home that night, but say Bethlehem Police never took a written statement from them. The Westervelts also said they offered to take a polygraph test on their sons whereabouts.
"His car made a noticeable noise; you would know when he left or came in," said Mr. Westervelt. "I always knew when he came in at night"I know that the investigators talked to some neighbors."
Mr. Westervelt said that, even though his son was convicted of sneaking up on Gray and hitting him in the back of the head with a hatchet, the physical evidence did not add up during the trial.
"Gray was a bigger guy and Erick didn’t have a mark on him, and he didn’t have any DNA on him or his car," said Mr. Westervelt. "From the autopsy photos, Gray had a lot of defensive wounds and looked like he put up a struggle."
Mr. Westervelt concluded that he doesn’t think someone "snuck up" on Gray, and that there may have been more than one person involved.
"There’s no way whoever did this to Gray got away untouched," he added.
The Westervelts also said the Peter Porco murder, which took place after Grays murder, may have affected their sons investigation. The high-profile ax murder also took place in Delmar and was investigated by Bethlehem Police.
Christopher Porco was later convicted of murdering his father and attempting to murder his mother.
"It was five weeks later when that happened to Mr. and Mrs. Porco. The community was scared; I feel Erick was railroaded," said Mrs. Westervelt. "I know Erick had nothing to do with this"The worst part, is that, basically, the Bethlehem Police are publicly calling me and Mrs. Porco liars."
Joan Porco stood by her son throughout his trial, maintaining his innocence. She has no memory of the night of the murder.
The Westervelts firmly believe that Grays killer or killers got away with murder.
"This is the biggest injustice in upstate New York; you could be seeing history in the making," Mr. Westervelt said. "This stuff can’t happen in this country in this day and age. I would never want to see another family or another person go through this."
Erick Westervelts younger brother, Jason, goes to Guilderland High School, and, like his older brother before him, is an active athlete at the school. He told The Enterprise his brother was convicted under false pretenses.
"The biggest thing was that there was no evidence linking him to anything"He voluntarily gave DNA and let them search his car. What guilty person would do that"" Jason Westervelt asked. "I don’t understand how you can convict someone on no evidence.
"I want people to see that an innocent person can be convicted of a crime without any evidence"It’s not something that’s out of the ordinary," said Jason Westervelt.
John, Wendy, and Jason Westervelt all say that Erick was home the evening Gray was fatally assaulted and that they either directly saw him or heard him yelling out Yankees scores throughout the evening.
They also contend that Erick Westervelt turned away several plea bargain agreements with the DAs office, which, they say, is not the behavior of a guilty man.
The Albany County District Attorney’s Office said that motive, a weak alibi, and a signed confession was enough for the 12 jurors to "to make their own conclusion."
Assistant District Attorney David Rossi, who prosecuted the case, said Erick Westervelt was linked to the crime through searches recorded on the familys computer prior to the murder.
During the trial Rossi painted the Westervelts alibi as simply trying to protect their son and he criticized them for not being more vocal in their sons defense.
"We had several witnesses testify to establish that Erick was the only person home that day and the one who did the computer searches"That’s pretty close to physical evidence," Rossi said.
Mr. Westlervelt said they were told by their attorneys not to talk about the investigation.
"I couldn’t talk to the press; I couldn’t talk to anyone"It’s like suffocating. You want to scream and they just tell you to remain quiet," Mr. Westervelt said. Mr. and Mrs. Westervelt have spent $50,000 to date on their son’s defense.
The Westervelt’s called the computer evidence "a joke."
"They told him they ‘had him’ for looking on Google on our home computer," said Mrs. Westervelt. "We all had use of the computer and had it since 2001"Sometimes I’ll watch a television show and look up all sorts of things on the computer."
The Internet searches included topics such as "sharpening knives" and "murder."
"You can’t prove that he was home and you can’t prove that he wasn’t, so what are you left with"" asked Mr. Westervelt. "You can’t prove someone killed someone else because of something on a search engine"It was all a story."
The familys computer along with several other pieces of equipment were taken from the Westervelt home during the police investigation. The computer and printer among other things were not returned, but, after inquiries by The Enterprise earlier this month, the Westervelts said some of the equipment was returned by the Bethlehem Police.
Mrs. Westervelt said the printer was given back, but that is was gutted and "only a shell."
Rossi told The Enterprise that, when trials end in conviction, equipment or personal property is often sealed and kept as evidence.
"We need to keep the evidence in case there is ever a retrial or future questions about the case," Rossi said. "If someone is found innocent or exonerated, we return their property."
Mr. and Mrs. Westervelt say their son was forced into confessing a crime he never committed.
"They use trickery"They have a template for what they do," said Mr. Westervelt. "Erick thought that Tim had been in a fight and just wanted to go home. He didn’t know he was on life support."
It was the "trickery," but also being held for hours that led to his son’s confession, said Mr. Westervelt.
"They basically told him what to write and he started writing"who knows what state of mind he was in at the time," Mr. Westervelt told The Enterprise. "My nephew was in the Army. These people are trained to get a confession no matter what. By the time they’re done with you, you won’t know up from down."
Erick Westervelt was interrogated without a lawyer present.
Mr. Westervelt also pointed out that his sons entire interrogation was videotaped, but that neither his polygraph test, which Erick Westervelt stopped half way through, nor his confession were videotaped.
"The big problem was the video"or lack of it," Mr. Westervelt said. "That statement made no sense whatsoever."
The Westervelts also questioned the makeup of the jury selected in Albany County.
"Three people on the jury were from Bethlehem; that was ludicrous"another one lived next to a Bethlehem cop," said Mr. Westervelt.
Mr. Westervelt said, to make matters worse, another juror who convicted his son works in his office and that he still sees her from time to time.
"The jury didn’t care at all. I looked over at them and people were looking at the ceiling and not even paying attention," said Jason Westervelt. "It seemed like the minute Erick walked into the courtroom, they already made their decision."
The jury was 12 jurors and two alternates and composed of seven men and seven women; about half middle-aged and half in their 20s.
The Westervelts talk to Erick Westervelt every week by phone and said they try to visit him as much as possible.
They would not lie to protect him, they said.
What if he did kill Gray"
"If he’s involved, yes, I would be upset with him, but I would love him and wouldn’t lie about it," Mrs. Westervelt told The Enterprise. "No, I don’t think he was a part of it. I know where he was that night. I don’t think he would have put us through this if he was somehow involved."
Jason Westervelt, without hesitation, said, "I just wish more people knew what really happened. My brother told the truth"In my mind, he didn’t do it. Period. I know he’s innocent."
"We’re praying that he’s granted an appeal; that’s my big wish"At least granted a retrial," said Mrs. Westervelt.
Claims "trickery" by Bethlehem Police
By Jarrett Carroll
ALBANY COUNTY Saying that he was illegally arrested and calling his trial a farce, Erick Westervelt is appealing his second-degree murder conviction.
"After a trial verdict, it is very typical for an appeal to be heard," said David Rossi, the assistant district attorney of Albany County who prosecuted Westervelt. "I feel comfortable with our original case and conviction"I don’t think there were any mistakes made."
Rossi doesnt believe an appeal or re-trial will be granted.
New York State has a three-tiered court system. Westervelt was convicted in the lowest-level court. Everyone has a right to appeal to the middle level, where a panel of judges reviews the earlier proceedings. The top court is selective in the cases it hears, choosing those that will set legal precedence.
Westervelt claims that the Bethlehem Police lied about his oral confession that he killed Timothy Gray, and says that he was arrested before signing a written statement.
"If you say someone supposedly confesses to something, you’ve got to have proof that they confessed to something before you can arrest them," Westervelt said. "Otherwise you could just be making something up"It’s not an issue of credibility; it’s an issue of fact."
Rossi told The Enterprise that Westervelt was not arrested illegally and said, "Erick Westervelt is only trying to get out of his conviction."
Westervelts appeal hinges on being able to prove that he did not give an oral confession before his written one while a videotape recording of his interrogation was off.
"Why would I sign a confession and then go through an entire trial without taking a deal if I were guilty"" Westervelt asked The Enterprise. Westervelt’s parents said their son "turned down several plea bargains," because he is not Gray’s killer.
Westervelts attorney, Kathy Manley, confirmed to The Enterprise that oral arguments have been requested and that the appeal will be heard this summer. Manley is a lawyer with the Albany firm Kindlon and Shanks which specializes in appellate work and criminal defense.
The Albany County District Attorneys Office has appointed Assistant District Attorney Christopher Horn to the case and has said the appeal may not be heard until early fall. Horn specializes in appellate work for the county.
"Courts are very reluctant to say police are lying, even though everyone knows they lie quite frequently," Westervelt said about his upcoming appeal. "The burden of proof has shifted to me who could have done this"
"You’re not innocent until proven guilty, you’re guilty until proven innocent," he concluded, cynical of the American justice system.
Revisiting the crime
Westervelt was convicted of fatally assaulting Timothy Gray with a hatchet in Grays Delmar home on the evening of Oct. 5, 2004. Gray, who was 28 at the time, died five days after the attack in Albany Medical Center Hospital from blunt trauma to his head and torso. Westervelts original charges of attempted murder, assault, and trespassing were changed to second-degree murder once Gray died.
Grays sister, Jennifer Gray, spoke out against Westervelt during his trial. After his conviction, she told The Enterprise she didnt believe Westervelt would be granted an appeal.
"I don’t have faith that that would ever come to be," Gray said. "It’s like grasping at straws, but, it’s Erick’s right to do that. In the end, things will work out and Erick will get what he deserves."
Grays father, George, said at Westervelts sentencing that if it were not for his sons tattoos, he would not have recognized Timothy in the hospital, he was beaten so badly. He held his sons hand as he died, George Gray said.
George Gray described Westervelt as a "selfish, jealous, scheming, and manipulative person."
Bethlehem Police say Westervelt attacked Gray because he was jealous after his ex-girlfriend, Jessica Domery, got back together with Gray.
The prosecution said the murder was over a woman, Jessica Domery, who had jilted Westervelt and gone back to Gray.
Domery and Gray had dated for more than five years. Domery had dated Westervelt for fewer than six months in 2004 before moving back in with Gray.
Domery did not respond this spring to inquires from The Enteprise for an interview. In statements to police, Domery said she had a sexual relationship with Westervelt, and, when she broke it off, Westervelt began to harass her and Gray.
A neighbor, Kate Tyrrell, found Gray bleeding from the head and unresponsive at the 95A Elsmere Ave. apartment he shared with Domery. Tyrrell, who was an acquaintance of Domery, told police in a statement that she heard Domerys dog, Rosie, barking early in the morning of Oct. 6, and went to investigate.
"I untangled the dog from patio furniture and picked her up. When I picked her up, she vomited blood," Tyrrell said in the statement. She called 911 when she found Gray, she said; after police and emergency medical technicians arrived, Tyrrell took Rosie home and washed the blood off of the dog.
Westervelts DNA does not match any of the DNA found at the crime scene by Bethlehem Police or State Police.
Although he said he was angry with Gray and had confronted him, Westervelt said he did not assault and kill him over Domery. He told The Enterprise in a prison interview that Bethlehem Police zeroed in on him because of his relationship with Domery and that police did not investigate other leads in the case.
Claiming he only met Gray once in person, Westervelt said he got into a "shoving match" with him prior to his death. Westervelt admited to leaving angry messages on Gray’s home telephone and his cellular phone because he believed Gray was abusive toward Domery but says that’s as far as his contact went with Gray.
Although their relationship was brief, Westervelt claims he and Domery loved each other and Domery had brought up the subject of marriage and children. Westervelt said he did not know about the relationship between Domery and Gray until Valentines Day in 2004, when, after they got out of bed that morning, she found flowers and candy at the front door.
Domery asked Westervelt if he had given them to her. He responded, "No."
Westervelt contends that, if a proper investigation had been conducted, he would never have been convicted. Westervelt cited several "oversights" in the crime scene photographs such as: not collecting cigarette butts, not testing used wine glasses, and not making casts of footprints found outside.
"All the pieces fell together"
Lieutenant Thomas Heffernan of the Bethlehem Police responded by saying the police stand by their investigation.
"Our department conducted a thorough and proper investigation and presented a strong investigation to the DA’s office," Heffernan told The Enterprise.
Heffernan said he had no further comments on the investigation because "once it’s at this process, it’s turned over to the district attorney’s office and it’s out of our hands."
The Albany County District Attorneys Office credited a signed confession and a motive of jealously for Westervelts conviction. No physical evidence linking Westervelt to the crime was brought forth during trial.
Rossi responded to Westervelt’s allegations of poor investigative practices by saying, "It wasn’t as if a glaring piece of evidence wasn’t collected from the scene." Rossi said that State Police processed the crime scene with Bethlehem Police.
Westervelt asserts otherwise, pointing to cigarette butts in crime-scene pictures that werent tested for DNA.
Rossi responded through The Enterprise, "Everyone involved in the investigation smoked cigarettes and the ones they found were old."
Westervelt smokes cigarettes, too, but he told The Enterprise that he smoked cigarettes with brown filters unlike the ones in the crime scene photos which had white filters.
Saying he was "forced" into a false confession, Westervelt asserts that the statements in his confession were "so ridiculous and fabricated that I never took it seriously." He said, "It was going to backfire and blow up in the people’s [Bethlehem Police] faces anyways."
Rossi said his office is pleased with the outcome.
"All the pieces fell together"We had a very strong case," Rossi said. "It was clear Erick was the one with the motive and he had the opportunity, and then he confessed"That means a lot to a jury."
After two days of intense interrogation about his relationship with Domery and feuding with Gray, Westervelt said that he "just wanted to go home."
He was told by police that Gray was hitting Domery and that people would look at him as a "good guy who was standing up for her" if he confessed to assaulting Gray, Westervelt said.
"They basically were baiting me"They told me he was hitting her and I was pissed," Westervelt told The Enterprise.
Westervelt said he was not told until after he confessed about the severity of Grays injuries or, later, that he had died. He believed that Gray had only gotten into a fight with another person, Westervelt said.
"Basically, it was, if I wanted to go home, just say I started a fight with this guy and that was that"It would be over," Westervelt said. "So they told me to start writing this stuff"and I thought, ‘Who gives a shit" It never happened."
Westervelt said he "couldn’t believe it" when he discovered that Gray had died.
"I was in shock, basically I thought it was like a schoolyard fight kind of thing"now you tell me he’s on life support," Westervelt said.
During the trial the defense put a confession expert on the stand, testifying about false confessions, but the jury "didn’t buy it," said Rossi.
"When it does occur, it usually happens to very young people who are not well-educated," Rossi said of false confessions. "Erick Westervelt was an adult and he is very intelligent and did well in college"The usual factors involved in false confession were not here."
Westervelt had no lawyer at the time of his questioning and confession.
Westervelt and his parents maintain that he was "tricked" into signing the confession which is filled with "inconsistencies and outright lies." (See related story.)
"As far as I know, I’m the only one they really investigated," Westervelt said. "Nothing in this case added up"It was complete crap."
The Bethlehem Police videotaped most of the investigation, Westervelt said, but not his confession or the polygraph test taken before it. Westervelt said he consented to a polygraph at first, but then stopped the test after he "realized they were going to say I was lying no matter what."
"The defendant knew details of the crime scene that weren’t provided by police"such as where the victim’s body was and other details," Rossi said. "I don’t think for one minute the jury thought it was a false confession."
Lieutenant Heffernan agreed, saying that it is not uncommon for convicts to be critical of investigations when their cases are up for appeal.
After Westervelt was sentenced in 2005, one of his lawyers, Kent Sprotberry, told The Enterprise that Westervelt was misled into a confession.
"He was very frustrated. A big part of the trial was the trickery employed by the Bethlehem Police officers to befriend Erick Westervelt," Sprotberry said at the time. "They frequently were telling him she [Domery] was beaten up by this guy; they were not casting her well. He defended her, and it worked. He ended up saying what they wanted him to say that he beat up Timothy Gray.
On the video tapes, Sprotberry said, the police "call it mutual crap." He reported the police saying, "We know it happens. Two guys get in a fight over a girl."
Sprotberry also said, "They never told him the person was dying. He thought he’d say, ‘Yeah, I got in a fight," and he could go home."
Asked, though, if Westervelt hadnt confessed to beating Gray with a hatchet, Sprotberry said that police, towards the end, told Westervelt that Gray was hurt more than just with fists, so Westervelt tried to think of something hard that wouldnt be harmful like a knife. He thought of the souvenir hatchet hed had since he was a boy and named that, Sprotberry said.
"He was just trying to come up with something not a knife that would really hurt," said Sprotberry.
As for getting out on parole, Sprotberry said Westervelt would need to be remorseful of his crime.
Sprotberry said it has been his experience that clients with an "upper-end sentence like 15, 20, 25 years to life" don’t usually get out on parole but "essentially serve a life sentence."
He said of Westervelt, "When he finally does get before a parole board, they like to see remorse. He’ll say, ‘I didn’t do it.’ I don’t expect him to ever make parole."
Kindlon and Shanks, lawyers who were critical of the Bethlehem polices investigation in the highly publicized Porco trial, never publicly drew a connection to Westervelts case even though the two murders happened in the same town and were investigated by the same police detectives.
Gray was murdered in his Delmar home five weeks before Peter Porco was murdered and his wife, Joan, was viciously attacked in their Delmar home. Gray was bludgeoned with a hatchet, the Porcos with an ax. Because of the Porco murder, Westervelt says the district attorney and the Bethlehem Police were "pressured into finding a killer."
"They knew I didn’t do this," Westervelt said. "They dug themselves a hole and they couldn’t get out."
The Porcos son, Christopher, was convicted of murder and attempted murder and is also serving his sentence at Clinton Correctional Facility.
The law firm Kindlon and Shanks defended both Westervelt and Porco during their trials.
"Terry Kindlon was on TV every day, even before my trial, talking about this stuff and the Peter Porco situation"He was on there defending Christopher Porco and saying all of that stuff," Westervelt said. "Not once was he on TV defending me. Never."
Continuing, Westervelt said that, when Kindlon was telling reporters the Bethlehem Police did not properly handle the Porco murder investigation, "He never even threw my name in there."
"These people didn’t do nearly as much for me as they did for Porco," Westervelt said about the lawyers who worked on his trial.
Terry Kindlon and lawyers from Kindlon & Shanks law firm did not return repeated calls for comment.
John and Wendy Westervelt, Ericks parents, heard over the news that Gray had died when they were coming back from Terry Kindlons office. They were also at his office, they said, when news of the Porco murder broke out.
Attorney Rossi praised both the Bethlehem Polices investigation and the State Police Polices forensic work.
"I know they’ve taken some criticism from the Kindlon and Shanks firm both in Erick’s case and a month later in the Christopher Porco investigation," Rossi said.
Rossi said of the lawyers criticizing police, "The verdicts reflected that they were wrong."
Going Out for horns & drums
A night for the children done by the town band
By Jarrett Carroll
GUILDERLAND Making music takes passion and perseverance.
"I never want to quit, but I’m going to have to when my front teeth fall out," said 6-year-old Geoffrey Gullante, one of the featured soloists at the Guilderland Town Band’s concert tonight.
Hes played his trumpet on national TV shows and is now learning piano, too.
At the other end of the age spectrum is Sue Godschalk, who has played with the band for its entire 38 years.
In between is seven-year member Jeremy Bouteiller. Hell play a solo on his sax tonight and be awarded the bands first scholarship.
"To be a music teacher, that’s my dream," said Bouteiller. "It’s really rewarding.
These talents will be showcased at the Guilderland Performing Arts Center in Tawasentha Park in tonight’s "Young People’s Night at the Movies," featuring songs from popular children’s movies such as Harry Potter, The Wizard of Oz, and Mary Poppins.
The music was good and the mood was light during Tuesday evenings rehearsal. Even with high temperatures and heavy humidity, the Guilderland Town Band did not disappoint as they rehearsed the entire show.
"Even though this will be the young people’s concert, it will be a show for people of all ages," said Megan Barrow, the Guilderland Town Band president. "We will be featuring our student soloist and having a free raffle to guest conduct a piece with the band."
Everyone between the ages of 5 and 18 attending tonights concert will be entered into the drawing and have a chance to co-conduct a song with the town band at an upcoming show.
"We represent five counties and many of our musicians are professionals," Barrow said about the more than 80 members of the town band. "Our members range from people in high school to people in their 80s."
The band was founded in 1969 by Donald Webster who will be at tonights show to present the first annual Donald Webster Scholarship to Jeremy Bouteiller. Band members rehearse every Tuesday night from Memorial Day until mid-August and perform three concerts at Tawasentha Park every summer.
The scholarship is sponsored by the Stewarts Corporation and Pioneer Savings Bank, Barrow said. Right now, it is only being offered to college students but another scholarship is in the works for high-school students, Barrow said.
The band formed a board of directors in 2006 in order to help run, promote, and organize itself jobs formerly left to the town bands conductor.
Barrow, began playing with the town band when she was in high school. She says the town has been very supportive of the band and provides GPAC as a regular venue.
Kathleen Ehlinger is in her fourth season directing the band. Ehlinger is also the wind ensemble director at Guilderland High School.
During rehearsal, Ehlinger gave the band several pep talks, encouraging players to "relax" and "open up."
"Sometimes in such a large group you want to be heard," Ehlinger told the band. "Go nice and easy and try not to overpower anyone."
Weather affects concert attendance, Barrow said. In good weather the Guilderland Town Band regularly draws between 300 and 500, she said.
The town band is currently working on a deal with the high school to play in its auditorium in the event of a "rainout," which, according to Barrow, "fortunately has only happened a few times over the years."
Bouteiller will perform a solo he describes as a "saxophone concerto," and Gallante will lead the band with Leroy Anderson’s "Trumpeter’s Lullaby."
Bouteiller has just finished his junior year at the Crane School of Music at the State University of New York College at Potsdam. He is a music-education major with a minor in jazz studies and he plans to pursue a masters degree, he said.
"I love it there, I couldn’t ask for a better school," Bouteiller said.
Bouteiller only had three weeks to learn and perfect his first professional solo, but his rendition was seamlessly smooth Tuesday night. After seven years of playing with the Guilderland Town Band, Bouteiller is ready for his debut solo.
"This is my first opportunity to perform a solo"I’m a little nervous, but mostly excited," said Bouteiller "It’s awesome; I couldn’t ask for anything better."
A Guilderland High School alumni, Bouteiller said his first instrument was the clarinet, but he began playing the saxophone in the sixth grade. Bouteiller wants a career in music, but, he said, he is more interested in teaching than performing.
Bouteiller said that, while at Guilderland, his musical inspiration was Lee Russo.
"He’s was sort of my hero through high school," Bouteiller said.
On the road
Six-year-old Gallante sat down on the green grass of Tawasentha Park to talk shop with The Enterprise.
Gallante started playing trumpet two years ago when he was four, and since has appeared on CBSs The Early Show, NBCs Tonight Show with Jay Leno, and NBCs Today Show.
His arms length résumé includes performing with recording artist Chris Botti and trumpet luminary Phil Driscoll, and bands like the Washington Symphonic Brass and the 257th Army Band at the National Zoo in Washington, D.C.
Beginning at a very young age, Gallante said, he wanted to play trumpet as soon as he laid his bright blue eyes upon one.
"I was at my Grandma’s house at my fourth birthday and saw my brother’s trumpet," Gallante said. "I wanted to look at that and examine it. I asked my mommy if I could play and she said, ‘Of course.’"
His mother taught him "how to blow a note," Gallante said, but a music teacher taught him how to play the instrument he has come to master. Gallante also started playing piano about five months ago, he said.
Gallante has two sisters and four brothers; his parents, Beth and David, say they are proud of their son.
"We enjoy it," said David Gallante. "We get to take him to all of these places."
The day after the GPAC show in Guilderland, Gallante is heading east to Fenway Park where he will perform at a Red Sox home game.
Gallante first met the Guilderland Town Bands director, Ehlinger, when he was guest performing at George Mason University in Virginia. Ehlinger, who is an alumna of the university, was guest conducting that day.
"They just hit it off," David Gallante said.
Like many other children his age, Gallante says he doesnt care very much for school.
"Naw, I don’t like it. My favorite subject is recess," he told The Enterprise.
When asked his favorite song to play, Gallante said he likes to play lots of songs with only one exception.
"I hate Over The Rainbow. Anything but that," he said.
The show begins at 7:30 p.m. at GPAC, off of Route 146 in Guilderland, and is free to the public.
The Guilderland Town Band will also be performing GPAC concerts on July 19 and Aug. 9. The July 19 show will be an "Irish Evening" featuring Irish music. The Aug. 9 concert will be the final performance of the season and is dedicated to Ray Biedron, a former town band trombonist who passed away.
Silence is not Golden
Website riles school board
By Melissa Hale-Spencer
GUILDERLAND Last Tuesdays school board meeting began with a citizens call for civility and ended with a board discussion on ethics and free speech.
At the center was Peter Goldens website.
Golden, a two-year Guilderland School Board member, is an author with a website www.petergolden.com that promotes his work. He is pictured wearing a trench coat and beret, in front of a bookshelf. The site also posts pictures of him interviewing and posing with a range of public figures from George W. Bush to Mikhail Gorbachev to Yitzak Rabin.
The part that got to members of the school board, though, was "Boardside: Dispatches from the Education Wars."
Golden launched the "Boardside" a play on "broadside" in May, he told The Enterprise, and has about 3,000 visits a week.
Golden writes that he will distill what he has learned serving on the school board. "I promise some of it will be inspiring; some of it will be amusing; and if you care about the growing crisis in public education and its evil Siamese twin intolerable property taxes some of it will also break your heart."
He goes on to say that he is considering asking students to write for Boardside "but a lot of them aren’t very good at spelling or punctuation because, or so I’ve been told, neither of those skills contributes to being a good ‘critical thinker.’"
Golden concludes, "For the last two years, I have had one overarching goal: Not to live up to Mark Twain’s observation that ‘in the first place, God made idiots. That was for practice. Then he made school boards.’"
In another piece, Golden takes issue with being a "Lifelong Learner" as a replacement for knowing basic facts. "Whenever people engage you in conversation," he writes, "you can’t keep running to the library or, let’s say, ask a mortician if he has an Internet connection in the embalming room. Pretty soon no one will invite you out."
Goldens site includes three letters he wrote to the Enterprise editor on culture change, middle-class debt, and the search for the common good.
It also incudes the definition of a word he invented dronoid derived from the words "drone" and "android," which he says "refers to Board of Education members who emit a boring, low-humming sound that is ofttimes confused with human speech and human thought."
Dronoids are "given to the knee-jerk authorizing of curriculum, policies and expenditures without thinking, researching, questioning, or dissenting," he writes. "Dronoids are often cited as the reason behind bloated school budgets and exploding property taxes."
"Sometimes perception can be reality," said Donald Csaposs, the resident who spoke at the start of the meeting. Csaposs, who works as development director for the town and is a long-time member of the school district’s budget advisory committee, told The Enterprise, "Peter’s website could be perceived as using school board membership to advance a for-profit business."
He urged the school board members to start the new year working together and said he couldnt give Golden a passing grade.
The school board members themselves expressed a range of opinions about Goldens site.
Board members, said President Richard Weisz, "don’t give up our rights as individuals to free speech." He called Golden’s site "avant- garde."
"I was very disappointed," said Vice President John Dornbush. "Some of the comments reflected what I construed to be a lack of respect for fellow board members....We don’t have to agree...but I think it’s hurtful to members of the board and to members of the community."
Thomas Nachod, the longest-serving board member who was participating in his last meeting, said, "I, too, was disappointed." The problem, he said, is what people perceive.
Nachod said students were hurt by the "cheap shot" about their being unable to spell. And he said the site showed "a total lack of respect" for administrators.
"The only thing that website promotes is yourself," said board member Colleen O’Connell.
She also told Golden that his website was not a blog. She defined a blog as a site were visitors can register and comment, creating a community.
"Parts of it I appreciated very much," said Denise Eisele. She said she respected Golden’s right to do it but cautioned against characterizing someone on the board or in the administration in a way that would be hurtful.
Cathy Barber said the website violates the board’s code of ethics. "There’s an understanding we won’t publicly criticize what has been a collective decision," she said. Barber said the board acts as a group, not as individuals.
"This undermines the group," said Barber. "That’s not productive. That doesn’t serve the community. The community wasn’t expecting we’d undermine the body to which we’d been elected."
"I saw it as satire and as free speech," said board member Barbara Fraterrigo.
Saying she is not "computer literate," Fraterrigo went on, "I see this as sort of a learning process...a growing process."
Referring to O’Connell’s comments, Fraterrigo suggested the site may become "a true blog."
"I think it’s a new age, a new adventure," said Fraterrigo. Everybody is capable of making a mistake and learning from that mistake...It would be nice to have a local blog where people could share ideas....It could be a very positive addition to our district."
Fraterrigo concluded, "It’s exciting to get feedback from throughout the world...New thoughts and new ideas can come in."
Peter Golden had the last word.
"The goal of the site," he said, "is to promote positive change."
He also said, "The answer to the criticism of free speech is more free speech."
He concluded by telling a story about his father taking him to Arlington National Cemetery when he was a child. He remembered his father, a World War II veteran, looking at the rows of gravestones and saying, "These people are the reason we can speak up, the reason we can vote. We respect them by doing both."
In other business, the board:
Heard from Assistant Superintendent for Business Neil Sanders that the district is paying $86,500 annually for new state requirements in accounting and auditing.
Dornbush, who had requested the information, said there was "ample evidence" the district was doing a good job before the new requirements.
O’Connell proposed writing a letter to the state comptroller and state education commissioner objecting to "another unfunded mandate," which takes away from money spent on education.
Board member Hy Dubowsky said, statewide, "That’s a lot of dough to throw around."
Superintendent Gregory Aidala noted it was the law so districts have to comply, and he said, "Legislators often tell us...we got a bump in state aid."
Nevertheless, he said he would draft a letter;
Heard from Aidala that the deans post at the high school will be returned to 12 months from 11 months a year.
Lisa Patierne, he said, is "doing a very good job" and has spent "a great deal of time and energy" on smoothing the transition for students from middle to high school.
Her title will be changed to assistant principal and her per-month salary will remain the same;
Heard an update from Weisz on the search for a new superintendent of schools. Aidala is retiring in November.
The field has been narrowed from the original 23 candidates, he said, and committees of "stakeholders" will conduct two sets of interviews in July;
Appropriated $100,000 from the fund balance into the tax certiorari reserve fund to pay judgments and claims under Real Property Tax Law;
Authorized the purchase, for $175,000, of the two parcels of land on Route 20 in front of Guilderland elementary School, as approved by voters in May;
Accepted an unspecified donation of money from Andre Garand;
Approved state-required plans for professional development and school safety and received a plan for academic intervention to be voted on July 9;
Approved raises for some substitutes.
The rate for substitute teachers at the elementary and middle schools went from $93 to $95 a day.
The rate for registered nurses went from $20 to $21 per hour and for licensed practical nurses from $18 to $18.50 an hour.
The rate for first-year tutors went from $22 to $24 an hour and for tutors in their second year or beyond from $30 to $31.50 per hour.
Eisele said her "eternal quest" is to get more money for teaching assistants; they earn $8.50 an hour.
"You can go to McDonald’s and make nine bucks an hour and eat all the hamburgers you want," said Dubowsky.
"We’re trying to be respectful of employees who negotiated contracts," responded Assistant Superintendent or Human Resources Susan Tangorre;
Heard a glowing report from Dubowsky, Eisele, and OConnell on their visit with the Guilderland High School group, Last Chance for Animals, which opposes dissection and vivisection in school labs.
Students currently can opt out but the group would like the practices banned entirely.
The Enterprise’s coverage of the issue can be accessed on-line at www.altamontenterprise.com, under "Archives" for March 29, 2007, under both "Guilderland" and "editorial."
O’Connell said she was "very impressed with the level of discourse."
"I’m not proposing a ban, but perhaps a discussion," said Eisele.
Dubowsky suggested looking at an opt-in policy; and
Bid a fond farewell to Nachod, who is retiring from the board after 12 years, having served as both vice president and president. A banker, Nachod is leaving Guilderland to be president of a new bank on Long Island.
In presenting Nachod with a plaque, Weisz thanked him for his "insight and energy."
"I’ve always voted for a position, not a person," said Nachod, concluding, "It’s all about the kids."
Bank bandit nabbed
By Jarrett Carroll
GUILDERLAND A man wanted for bank robberies in Albany and Guilderland was arrested on Sunday by Albany Police.
Mark Ekbolm, 37, of Albany is being charged for the robberies of HSBC Bank on South Pearl Street in Albany and the Trustco Bank in Stuyvesant Plaza in Guilderland. The two similar robberies occurred less than 24 hours apart, according to police.
Ekbolm is accused of walking up to clerks in both banks and handing the tellers a note demanding money, said Investigator Charles Tanner of the Guilderland Police. No weapons were implied or used during the heists and no injuries were reported, Tanner said.
Ekbolm entered the Trustco Bank at 11:45 a.m. on Saturday, according to police.
"We got a call from one of the patrons at the bank when the robbery occurred. The Albany Police had developed that information along with surveillance video from the bank," Tanner told The Enterprise. "Some people who knew him recognized him when they saw the pictures on television."
He is a white man who stands 6 feet, 1 inch tall and weighs 300 or more pounds, police said.
Ekbolm was picked up by Albany Police on Sunday and he has been remanded to Albany Countys jail, according to Guilderland Police.
Albany Police are charging Ekbolm with third-degree robbery and third-degree grand larceny, Tanner said; Guilderland Police had not charged Ekbolm on Monday. Tanner said he expects Guilderland to charge Ekbolm with third-degree robbery, but, since Ekbolm made off with only $820 in cash, he would not be charged with grand larceny for the Guilderland robbery.
Robberies and thefts of under $1,000 are petit larcenies.
The stolen money has not been recovered by police. Witnesses to the robbery told police that Ekbolm left the scene on foot and went in a "westerly direction in the plaza."
This is the second robbery in four months at the Trustco Bank in Stuyvesant Plaza. In late February, the night-deposit safe was taken from an outer wall of the bank, prompting a joint investigation by the Guilderland Police and the Federal Bureau of Investigation.
The safe was built into the wall near the entrance of the Trustco Bank and was completely removed from the building during that robbery. Guilderland Police say they are keeping a close watch on the location.
"It’s just in a bad spot," Tanner said. "It’s right next to two major arteries"It’s very close to the Albany city line and it’s on a major bus line."
Report bird deaths to avoid West Nile
By Jarrett Carroll
ALBANY COUNTY Mosquito season is here. As the county starts applying larvicide, it asks residents to report birds that have died in the past 24 hours crows in particular.
The Albany County Health Department has planned strategic, targeted larvicide applications for 2007. West Nile virus surveillance findings will be used to target particular areas around the county, according to County Executive Michael Breslins office.
Beginning July 2, after findings are reported, certified municipal and county workers will apply residual mosquito larvicide in the targeted areas, according to Kerri Battle, spokeswoman for Breslins office.
Depending on what is appropriate, either 30-day or 150-day residual mosquito larvicide will be applied. Both briquets contain methoprene and are given a toxicity category of "caution," according to Breslin’s office.
The treatments will occur in: the cities of Albany, Cohoes, and Watervliet; the towns of Bethlehem, Colonie, Guilderland, and Coeymans; and the villages of Colonie, Menands, Ravena, Voorheesville, Green Island, and Altamont.
County officials are reminding residents to reduce mosquito-breeding sites at their homes by eliminating any standing water. Stagnant water can be found in clogged gutters, old tires, swimming pool covers, and bird baths.
Battle said the countywide larvicide application is to prevent West Nile virus, which is carried by mosquitoes. According to the United States Centers for Disease Control and Prevention, over 15,000 people in the United States have tested positive for West Nile Virus since 1999 when it was first detected.
Since being introduced to North America, the virus has spread to all 48 continental states, seven Canadian provinces, and throughout Mexico.
The larvicide applications are consistent with the recommendations of the Centers for Disease Control and Prevention and the New York State Department of Health, Battle said.
A map of the areas being treated by larvicide and larvicide Material Safety Date Sheets can be reviewed at the Albany County Department of Health from 8:30 a.m. until 4:30 p.m. on weekdays. Additional information and maps may be viewed by either calling 447-4620 or on the countys website at www.albanycounty.com.
To report dead birds, residents may call either the countys Environmental Division at 447-4620 or the United States Department of Agriculture Wildlife Services 24-hour toll-free hotline at 1-866-537-BIRD (2473).
For questions on identifying mosquito breeding grounds and the use of larvicide, residents may call the countys Environmental Division.
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