Castor tries, again, to get conviction overturned

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Stacey R. Castor, a Central New York woman convicted of killing her husband and trying to blame her daughter for the murder, is seeking to have her conviction vacated because she had an attorney when first questioned by police.

Although the attorney represented Castor in the settlement of her husband’s estate, Castor’s right to counsel had attached in the criminal investigation when he advised her to cooperate with police in supplying fingerprints, Seneca Falls attorney J. Scott Porter argued Monday on Castor’s behalf in her latest appeal.

James P. Maxwell, a chief assistant district attorney in the Office of the Onondaga County District Attorney, countered Castor’s estate attorney already settled the matter when he testified in 2013 that he never represented Castor in a criminal matter.

Castor, 47, was convicted in 2009 of second-degree murder, attempted second-degree murder and offering a false instrument for filing.

A jury found her guilty of fatally poisoning her husband David Castor with antifreeze in August 2005 and trying to kill her 20-year-old daughter two years later with drugs and alcohol in an attempt to cover up her husband’s murder as police began to focus on her as a prime suspect.

Castor, who lived in Clay at the time, produced a typed suicide note she said her daughter Ashley composed, confessing to the murder of David Castor, whose death was originally ruled a suicide.

Ashley’s alleged suicide note also confessed to the killing of Castor’s first husband, Michael Wallace, Ashley’s father. His death in 2000 had been ruled a heart attack, but that changed in 2007 when his body was exhumed and it was determined he too was poisoned with antifreeze, raising the suspicions of police.

Castor was also convicted of offering a false instrument for filing for altering David Castor’s will to exclude his son from a previous marriage.

Porter told the Appellate Division panel an investigator contacted Castor in September 2005, asking her to supply fingerprints. He said she told the investigator no, that she wanted to talk first to an attorney she had hired to represent her interests in her husband’s estate.

Porter said the attorney, Norman Chirco of Auburn, advised Castor to cooperate. Porter said when Chirco spoke to the investigator, there was no conversation about representing Castor in the estate. At the time, David Castor’s death was believed to be a suicide.

“Then any doubt that the investigator may have had relative to this attorney entering into this investigation should be looked at in favor of the defendant,” said Justice Gerald J. Whalen.

Porter mentioned three other cases, saying each included a single communication between an attorney and an investigator regarding cooperation, which was enough for counsel to attach. He said the complicating factor in the Castor case is that Chirco was counsel for David Castor’s estate.

“There was no criminal investigation at that point,” said Presiding Justice Henry J. Scudder.

Porter said that brought up another important issue; that Chirco would have advised Castor he could not represent her if the matter were criminal because it would be a conflict of interest. He said Chirco did not know she was a criminal suspect until two years later when he saw on TV that she had been arrested and charged with murder in her husband’s death.

Porter said Chirco could therefore represent Castor’s interests, as well as the interests of the estates because there was no criminal investigation. He said she could ask her counsel for advice, which he could give and she could act upon. He said police were on notice the attorney would direct Castor to cooperate; that it didn’t matter at that point whether there was a criminal investigation or not.

Castor previously appealed her 2009 conviction and a March 2012 order by Onondaga County Court Judge Joseph E. Fahey to vacate the judgment. Those cases were consolidated. The Appellate Division, in separate decisions filed Oct. 5, 2012, affirmed the conviction, but ordered a hearing to determine if statements Castor made to police should have been used against her at trial.

That Appellate Division panel found Judge Fahey erred in denying Castor’s motion under Criminal Procedure Law Section 440 in which Castor argued her right to counsel had attached in September 2005 when police first contacted her about her second husband’s death so they were prohibited from questioning her without counsel in September 2007, People v. Castor (2012 NY Slip Op 06664).

The panel found the record insufficient to determine if Castor had counsel to represent her in a criminal matter and sent the case back down for a hearing on that issue which Judge Fahey ruled on in December 2013, saying Castor’s attorney at the time was not representing her on a criminal matter and that, in fact, his representation of her on the estate matter ended before the 2007 interrogation.

Castor is now appealing Judge Fahey’s December 2013 order.

“Attorney Chirco, at the hearing, answered that question emphatically that he never represented Stacey Castor in a criminal case,” Maxwell told the Appellate Panel which also consisted of Justices Joseph D. Valentino, John V. Centra and Erin M. Peradotto. “I think that pretty much solves the missing thing that you were struggling with when this was before you before.”

Justice Whalen asked if there was anything in the record to indicate investigators were told Chirco only represented Castor on the estate matter.

Maxwell said that could be drawn from Castor herself who mentioned Chirco was protecting her interests in the estate, which was being challenged by David Castor’s son.

“She had portrayed this whole incident to police as a suicide,” Maxwell said. “Chirco and the police didn’t think anything other than a suicide.”

He said finger printing was routine in a suicide investigation and that the only person who knew the investigation might turn criminal was Castor.

Maxwell concluded saying Castor should not retroactively benefit by recasting the purpose of her legal representation.

Castor is serving a sentence of 47 years and nine months to life. She is housed at the Bedford Hills Correctional Facility in Westchester County.

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