Jury in shooting case has choice of two verdicts

BY ANN GIVENS AND ALFONSO A. CASTILLO | ann.givens@newsday.com
alfonso.castillo@newsday.com

8:32 PM EST, December 18, 2007

A jury will have the option of convicting John White of a misdemeanor -- rather than a felony -- for the shooting death of Daniel Cicciaro Jr., a Suffolk County judge ruled Tuesday.

Granting a motion by defense attorneys Tuesday, Judge Barbara Kahn gave jurors what will amount to a fallback plan: If they cannot agree to convict White, 54, of second-degree manslaughter, a felony, then they can choose instead to convict him of second-degree reckless endangerment, a misdemeanor.

What Kahn did not do, however, was give jurors a middle-of-the-road option. She denied the prosecutors' request to allow jurors to consider the charge of criminally negligent homicide, a less serious felony than manslaughter.

Experts said the ruling carries risks for both sides.

If prosecutors fail to prove that White is guilty of second-degree manslaughter, which carries a maximum sentence of 5 to 15 years, then the best they can hope for is the much lower charge of second-degree reckless endangerment, which has a maximum penalty of a year in jail.

On the other hand, if the jury wants to convict White of something more serious than a misdemeanor, the jury's only option will be manslaughter.

Following Kahn's decision, Cicciaro's mother said she remains confident that jurors will convict White of manslaughter.

"When they review all the evidence they will see the truth absolutely," Joanne Cicciaro said. "The facts really do speak themselves."

Kahn's decision not to include the middle charge, criminally negligent homicide, may mean that she does not feel that prosecutors presented any evidence that White was acting negligently at the time of the shooting, said Ed Jenks, a Mineola defense lawyer. The other two charges both require that the prosecutor prove recklessness, which is different, meaning that White's behavior created a substantial risk of serious injury or death, Jenks said.

Kahn's decision also presents the possibility that White could be convicted of a more serious charge for possessing a weapon than for shooting a man, since he is charged with third-degree criminal possession of a weapon, a felony.

Brian MacNamera, who teaches criminal law prosecution at John Jay College of Criminal Justice, said it is not so rare for defendants to end up serving more time on lesser charges than they do on the most serious crimes they were accused of.

"The lesser charges tend to be much easier to prove," he said.