By Jon Moss
syracuse.com
ELMIRA, N.Y. — A former New York state corrections officer sent to prison in the fatal beating of an inmate last year at a Central New York state prison has been released from prison.
The former corrections officer, David Walters, was let out Thursday morning from the Elmira Correctional Facility in Chemung County while his lawyer, Nicholas Passalacqua, attempts to withdraw his guilty plea.
State Supreme Court Justice James McClusky ordered Wednesday that Walters could be released on either $50,000 cash bail or $100,000 bond.
Walters was one of 10 corrections officers who were indicted in the fatal beating of inmate Robert L. Brooks at the Marcy Correctional Facility in Oneida County. He accepted a deal with prosecutors to plead guilty to second-degree manslaughter in exchange for a prison sentence of 2 1/3 to 7 years.
Passalacqua attempted in the days before his client was sentenced on Nov. 21 to take back the plea. He argued that Oneida County Court Judge Robert Bauer had changed his mind on a key part of the case: whether Walters had a so-called duty to intervene as his fellow corrections officers assaulted Brooks.
Passalacqua previously argued the duty is not described in state law, but instead only in a policy directive from the state Department of Corrections and Community Supervision. The argument goes, then, that Walters could not be criminally liable for not following department policy.
Bauer cited a mix of previous court cases and state law and regulations to show corrections officers do indeed have a duty to intervene.
Then, three of Walters’s co-defendants went on trial in October for murder and other charges.
Bauer instructed the jury that “a directive issued by DOCCS is not a law, but a policy of DOCCS.”
“You cannot hold the defendants criminally liable solely for a violation of DOCCS policy,” he said, “but may consider it as evidence of a defendant’s intent or state of mind.”
Two of the three corrections officers who went on trial were acquitted. One was convicted of murder.
A lawyer from the office of Onondaga County District Attorney William Fitzpatrick, who is handling the case as a special prosecutor, noted that Walters was not indicted on the same charges or theory as the men who went on trial.
The lawyer, David Bassett, also said there was no difference between Bauer’s earlier ruling and what he told jurors during the trial.
“His application, perhaps spurred by hindsight regret at not electing to proceed to trial, flies in the face of his guilty plea wherein he admitted the charged conduct,” Bassett wrote in court papers.
McClusky’s ruling allows for Walters to stay out of prison while Passalacqua now pursues the case at the state Supreme Court’s Appellate Division for the Fourth Department, which is based in Rochester.
Under state law, Walters must return to prison in mid-April if his lawyer has not yet filed an appeal with the appellate court.
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