NY appeals court reverses murder charges and restitution order

A state appeals court has reversed second-degree murder convictions because the charges were lesser included counts of first-degree murder.

In March 2019, defendant Aaron F. Powell was convicted of first-degree murder and two counts of second-degree murder. He killed Mario Masciarelli and Christina Powell, his estranged wife.

Powell was sentenced to 25 years to life for each count of second-degree murder, to run consecutively, and to life in prison for the first-degree murder counts, to run concurrently to the other sentences.

In a previous appeal, the Appellate Division of state Supreme Court, Third Department, reversed the convictions and ordered a new trial.

Powell retained an attorney for retrial, but he stopped payment prior to the start of the trial. Ultimately, that attorney was appointed by the judge to represent Powell.

Powell was convicted in the second trial and sentenced to the same period. But, after a hearing, Powell also was ordered to pay a total of $139,231.87 in restitution to the families of the two victims.

Powell appealed the convictions and the order of restitution.

Powell’s appellate lawyer, Melissa K. Swartz, argued that he was denied his right to the effective assistance of counsel, based on comments made by his lawyer during the trial.

“We disagree,” the court wrote.

On the seventh day of trial, Powell’s attorney placed on the record that the prosecution had made a plea offer allowing Powell to plead guilty and be sentenced to 30 years to life.

Powell’s lawyer stated in court that there was no reason to believe Powell would not be convicted and sentenced to life without parole, as he had after the first trial, according to the Third Department’s decision.

The lawyer said in court that the proof was “staggeringly overwhelming.”

Powell’s attorney said he could not understand Powell’s motives for declining the plea agreement, “leading him to question defendant’s mental health, although clarifying that defendant understands the nature of the charges and is able to discuss the case,” the court wrote.

Powell’s lawyer referred to the trial as “a very slow guilty plea.”

Outside the presence of the jury, the judge clarified with Powell that he did not wish to accept the plea offer and that he was satisfied with his lawyer, according to the decision.

“We in no way condone the comments made by primary trial counsel that went beyond placing the plea offer and recommendation to defendant on the record — most notably, stating that the proof against defendant was overwhelming, and that the trial essentially amounted to a slow guilty plea,” the court wrote.

Those comments went beyond “an appropriate effort to ensure that defendant understood the proceedings before rejecting the plea offer,” the court wrote.

“Putting it mildly, these comments were ill-advised and unprofessional,” the panel wrote.

But the comments “did not deprive defendant of meaningful representation or a fair trial,” the court ruled.

“The discussion in question occurred outside the presence of the jury and County Court sealed that portion of the record to ensure that the jury would not become aware of these comments,” the court wrote.

“Consequently, reversal is not warranted on this basis … Thus, viewed in totality and at the time of representation, we find that defendant was provided meaningful representation,” the panel wrote.

But the court ruled that the convictions on two counts of second-degree murder “are inclusory concurrent counts of the conviction of murder in the first degree, and, thus, these convictions and the attendant sentences must be vacated.”

The court also reversed the restitution order because the judge “failed to engage in any on-the-record examination of the objective reasons why an enhanced sentence must be imposed,” according to the decision.

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