By Jeanne Sager
MONTICELLO October 29, 2004 Ron Caruso is headed to court . . . again.
Convicted in 2002 of murdering his step-uncle, Gary Kays, Caruso is a one-time Callicoon resident and Sullivan West graduate and has spent the past two years as a resident of Green Haven Correctional Facility in Dutchess County.
But Sullivan County District Attorney Steve Lungen has called Caruso back to the county to once again face a jury of his peers.
The 21-year-olds murder conviction was overturned in April by a state court of appeals.
The court said presiding Judge Frank LaBuda should have instructed the 2002 jury that they had the option of a manslaughter conviction, a lesser charge than murder one, which has Caruso serving a life sentence.
Lungen immediately sought permission to appeal the state appellate court decision permission hes just learned has been denied.
Lungen said its very difficult to be heard by the court of appeals they hear a limited number of cases on wide-ranging issues.
Now hes facing the challenge of finding an impartial jury who will once again hear the People state that an AWOL soldier returned to Callicoon toting a gun with the intent of killing the brother of his step-father.
Lungen would not divulge the details of the prosecutions case, saying only that its going to be difficult and hed rather not prejudice a jury at this point.
In May, shortly after the shocking sentence reversal, Lungen argued the state court of appeals decision to limit the use of a tape of a 911 call of Gary Kays final moments.
In a 911 call placed by Kays as he lay dying, he identified Ron Caruso as his killer just as he took his last breaths. The People allowed Kays to stand as chief witness to the crime during the first trial something the appellate court said cannot happen again. They will not allow the entire call to be played.
Lungen has said the decision flies in the face of state law which requires proof of a dying declaration before these types of calls can be entered into evidence.
The appeals court also said that Caruso was surprised by the sound of Kays returning to his trailer in the Beechwoods that night in August 2001. But Caruso never testified during his trial, and his statement to police wasnt entered into evidence. Lungen said the court was making interpretations of information that was simply never entered into record during the trial.
The appellate court also ascertained that Caruso left Kays trailer that night without shooting him again to ensure that he was dead. The court said that could have been interpreted by a jury, given the chance, as a lack of intent to kill.
Kays was shot twice by his step-nephew.
Lungen said this case will be only a partial re-trial. Only Carusos murder conviction has been overturned not convictions of grand larceny and burglary in the first and third degree handed down by the 2002 Sullivan County jury, which amount to about 30 years of jail time.
Caruso is also serving 25 years on an Essex County second-degree murder conviction for killing Luke Leborgne, a 19-year-old Quebec man, at a Northway rest stop shortly after the death of his step-uncle.
The case the way it sits is very unique, Lungen said, but he said hes sure he will find an impartial jury and try the case as soon as possible.
Jury selection will likely start sometime in the next month or so.