Murder indictment tossed again
Fatal stabbing case heads to new grand jury
For the second time this year, an Albany judge has tossed the second-degree murder indictment against Paul Barbaritano in the 2019 fatal stabbing of a woman in a Brevator Street apartment.
Albany County Judge William Carter ruled prosecutors for District Attorney David Soares failed to provide grand jurors with a legal instruction about a potential justification defense for Barbaritano in the killing of Nicole Jennings, 29. She was found July 5, 2019, inside 8 Brevator St.
In his decision Tuesday, Carter was critical of Soares’ office, with whom he has an acrimonious history, but said prosecutors can bring the case before another grand jury. His ruling provided new details about the gruesome sequence of events that unfolded before Jennings was found.
Soares spokeswoman Cecilia Walsh said the office intends to bring the case to a new grand jury.
Barbaritano’s attorney, Assistant Public Defender Rebekah Sokol, has maintained since January that her client and Jennings were engaged in a sexual encounter involving erotic asphyxiation. She contends Barbaritano accidentally stabbed Jennings while trying to cut a belt from her neck.
The judge’s ruling highlighted grand jury testimony from an
Albany police detective who interviewed Barbaritano, now 53. It showed the defendant gave a similar explanation for Jennings’ death as his attorney.
Detective Anthony Digiuseppe testified that Barbaritano said he knew Jennings from Narcotics Anonymous, and told him the two planned to smoke crack and have sex on the night of the killing, Carter’s decision said.
The detective testified that Barbaritano told him he had an inability to perform sexually and that Jennings wanted to be tied up in a “bondage type of situation.” Barbaritano said he took a karate belt from his closet, tied Jennings’ hands to her neck and, at some point, she wrapped the belt around her neck and encouraged Barbaritano to pull it tighter, Carter’s decision said.
Barbaritano told the detective that while behind Jennings on the bed, he pulled the belt and noticed that Jennings stopped making noise. Barbaritano said in his drug-induced state, he grabbed the knife— the one they used to cut crack cocaine — and tried to cut the belt off Jennings’ neck. He said they fell between the bed and the wall and the knife went into Jennings’ neck, Carter’s decision said.
The detective testified that Barbaritano told him he “freaked out,” stayed in the apartment to drink alcohol and smoke cigarettes and then tried to commit suicide by stabbing himself and sitting in the bathtub. Barbaritano told the detective he left phone messages for his sister, who lives in Utica, and she called police in that city who, in turn, called Albany police, Carter’s decision said.
The detective testified about his “personal observations of the crime scene to include evidence of drug usage, a partially filled bloodied bathtub and a knife on the toilet,” Carter’s decision said.
The judge’s ruling said a forensic pathologist testified before the grand jury that he found “no signs of asphyxiation caused by the belt and that the wound on her neck was consistent with someone applying pressure and making a slicing motion from behind.”
Sokol argued for the indictment to be tossed because “the integrity of the grand jury was impaired by the prosecutor’s failure to charge a legal instruction for the defense of justification: necessity as an emergency measure.”
Prosecutors argued that Barbaritano cannot, on one hand, decline to testify and then ask for the indictment to be dismissed because he hoped his story would be told by the prosecution, Carter’s decision said. Prosecutors argued that the detective’s testimony provided a full picture for the jury.
They also argued there was “no evidence to support a reasonable inference the defendant was ‘saving ’ the victim’s life when he plunged the knife into her neck,” Carter’s decision said.
The judge ruled against the prosecutors, saying they have dual roles to not only seek indictments but to ensure justice.
“Upon consideration of the entirety of the facts presented to the grand jury, the court finds the People’s evidence established a ‘potential defense of justification’ and that the prosecutor’s failure to provide that legal instruction impaired the integrity of the grand jury to such a degree that the defendant may have been prejudiced by an unwarranted prosecution,” Carter ruled.
Carter’s ruling follows now-retired state Supreme Court Justice Thomas Breslin’s dismissal of the indictment against Barbaritano in April. Breslin found that prosecutors did not conduct a thorough enough inquiry of a grand juror who had heard details of the case.
Barbaritano’s case gained wide attention in January when Carter ordered his release just days after the state’s new justice reforms took effect. At the time, the judge was powerless to detain Barbaritano or set bail for him because the top charge the defendant faced was seconddegree manslaughter. The charge did not meet the criteria for bail or detention under the state’s new justice reform laws. Under later bail reform law revisions passed in April, it would have been sufficient to meet the requirement.
By that point, Barbaritano was charged with murder. He is being held in the Albany County jail.