By Jeanne Sager
MONTICELLO —May 4, 2004– A sentence reversal in a three-year-old murder case sent shockwaves through the county last week.A state court of appeals announced last week that they are overturning the murder conviction of Ronald Caruso, the Callicoon man convicted in 2002 of murdering his step-uncle, Gary Kays, in August 2001.
Caruso, who just turned 21, is currently serving a life sentence in Green Haven Correctional Facility in Dutchess County on one count of murder in the first degree.
But the Appellate Division of the New York State Supreme Court said the jury should have been given the chance to convict him of the lesser charge of manslaughter.
Sullivan County District Attorney Steve Lungen said the appeals court is “wrong.”
He’s currently seeking leave to appeal the Caruso case to the New York State Court of Appeals, which would have the option of upholding the murder conviction or sending the case back to trial.
“We feel strongly that the decision of the appeals court is very, very wrong,” Lungen said. “They relied on facts that were not in evidence and not before the jury.
“They made interpretations of things that simply were not at trial,” he continued.
The appeals court said that Caruso was “surprised” by the sound of Kays returning to his trailer in the Beechwoods the night of his murder – but Caruso never testified during his trial, and his statement to police wasn’t entered into evidence.
The court also said Caruso fled Kays’ trailer without shooting him again to ensure that he was dead – a sign they said could have been considered as evidence that there was no intent to kill.
Kays was shot twice by his step-nephew. In a 911 call placed by Kays as he lay dying, he identified Ron Caruso as his killer.
But the court of appeals took issue with that call as well.
If there is to be a new trial, the court’s report said, the entire call, in which Kays can be heard taking his last breaths, should not be played.
“They said it was highly prejudicial,” Lungen explained.
But in order to put the tape of the call into evidence, there had to be proof that it was Kays’ dying declaration, Lungen said.
To replay at trial only the portion in which he identifies Caruso as his murderer “flies in the face of the law with the dying declaration statute,” Lungen said.
Kays’ death, and his 911 call, were the result of Caruso’s actions, he continued.
Is it prejudicial?
“Perhaps,” Lungen said. “But he put in motion the reason Gary Kays had to call 911 in the first place.”
There are many pieces of evidence that could be considered prejudicial and are still admissible, he said.
If the case does have to go back to trial, Lungen said he will most definitely be there trying the case.
“I still feel strongly about this case,” he said. “We will retry this case without a doubt.”
Even if the 911 tape is limited, Lungen feels he has the evidence to obtain another murder conviction.
“That’s not going to drastically limit the people’s ability to present their case,” he noted.
Besides, Lungen said, this does not mean that Caruso goes free.
He’s serving 25 years on an Essex County second-degree murder conviction for killing Luke Leborgne, a 19-year-old Quebec man, at a Northway rest stop.
The Sullivan County convictions of grand larceny and burglary in the first and third degree still stand as well – the sentence on those counts amounts to about 30 years, Lungen said.
“This is not a reversal that means he goes free,” Lungen said. “He’s not getting out any time soon.”
The worst part of this, Lungen continued, is the effect it has on Kays’ parents, Bob and Linda, who still live in Callicoon.
“I feel awful about this,” Lungen said. “It was no fault of theirs – this decision is just wrong.
“Clearly [the Kays family] is not happy,” he continued. “I just feel bad for them.”