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Appellate Court hears Raucci conviction issues

Case challenged on jurisdiction; DA notes tapes

Wednesday, February 6, 2013
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Attorney Alan Pierce, argues before the NYS Appellate Division of the state Supreme Court in Albany on Wednesday afternoon that Steven Raucci's convictions should be overturned on a number of issues.
Photographer: Marc Schultz
Attorney Alan Pierce, argues before the NYS Appellate Division of the state Supreme Court in Albany on Wednesday afternoon that Steven Raucci's convictions should be overturned on a number of issues.

— Steven Raucci deserves a new trial because his first one was tainted by evidence that shouldn’t have been admitted, including evidence of alleged acts that occurred outside the county, his attorney argued Wednesday before the Appellate Division of state Supreme Court.

But the attorney arguing for the prosecution highlighted a key piece of evidence that wasn’t addressed by the defense: Raucci’s own recorded admission to the top count of which he was convicted.

Raucci, now 64 and formerly of Niskayuna, is appealing his conviction in 2010 on 18 of 21 counts in a series of incidents intended to intimidate people he perceived as enemies or enemies of his friends. No one was injured in any of the incidents. He is serving his time in the maximum security Clinton Correctional Facility in Dannemora.

Raucci served as facilities manager for the Schenectady City School District and also led the union unit that represented the workers he supervised. It was a dual position that prosecutors said made him valuable to the school administration for his ability to keep labor peace.

Attorneys on both sides Wednesday responded to questions from justices that at times appeared to come from the far reaches of the large and complex case. Raucci’s attorney, Alan Pierce, eventually and emphatically argued against the counts that came from outside Schenectady County.

Prosecutors successfully argued before trial to include them, contending they were done to impact Schenectady County events.

Pierce countered, calling the intent of including 14 counts based outside the county nothing more than a “pile on.”

“I believe that the error is so pervasive on those counts that they have to be dismissed and there has to be a new trial,” he told the court.

Gerald Dwyer, the attorney who handles most of the office’s appeals, argued for the Schenectady County District Attorney’s office. Dwyer ultimately brought the case back to the tapes secretly recorded by an old friend of Raucci. The tapes, Dwyer noted, were not addressed by the defense, something he suggested was done purposefully.

In the tapes, Dwyer pointed out, Raucci said “I did it for a friend,” referring to the top count against him, first-degree arson involving the detonation of an explosive device at an occupied Rotterdam home. Raucci also talked about other aspects of the case.

“He talks about why he did these things, the impact that they had on him and how he was able to remain the godfather of the district,” Dwyer told the justices. “He received 23 years to life, your honors, he was exposed to 118. He has shown absolutely no remorse.

“I believe that was a just verdict, and I ask that you affirm the conviction and the verdict.”

Raucci was not brought in for the arguments. Family members, including his wife, Shelley, were there, however.

Arguments were held before four justices. In the event of a tie, court officials said, a fifth judge would be brought in to review the case and then rule.

Each of the justices had access to both sides’ lengthy supporting briefs before the arguments. One of the seemingly main issues in the case, the issue of the counts from outside Schenectady, was initially bypassed by the justices.

When Dwyer brought it up, Presiding Justice Karen Peters responded, suggesting she didn’t need to hear more on the issue.

“It’s fascinating,” she said, “and well briefed.”

With that, Dwyer said he could take a hint and moved on, though Pierce later addressed it in rebuttal.

The justices instead focused on other issues, asking about a search warrant connected to a briefcase, a brief statement Raucci made to a Schodack police officer and an FBI video demonstrating the impact of similar explosive devices to those Raucci was accused of using.

The briefcase, which contained papers and a newspaper reporting on the 2001 Rotterdam bombing, related to two warrants, one for the briefcase itself and one for the office where it was located.

If the briefcase warrant was bad, justices asked, why didn’t the office warrant cover it? Peters asked how investigators couldn’t search a briefcase but could open file cabinets and desk drawers. Pierce argued it wasn’t covered, and the office warrant didn’t mention a briefcase.

Dwyer argued the first briefcase warrant didn’t matter. The office warrant, which allowed authorities to look for notes and documents and was issued the same day, covered the briefcase inside the office.

Regarding Raucci’s statement to Schodack police, where the officer asked if Raucci wanted him to read the charges, which related to an unexploded bomb at a Schodack home. Raucci declined, saying he knew what it was about.

Pierce argued that it was simply a question, before Raucci had been read his rights, and it shouldn’t have been allowed. Justices, though, including Peters, questioned how the query was more than a simple yes or no question.

Dwyer argued it wasn’t in interrogation, as the question wasn’t intended to get Raucci to say anything incriminating.

Pierce brought up an issue regarding an FBI analysis of the unexploded devices, arguing a specific analyst should have been brought in to testify but wasn’t. Dwyer later said there was no need to call the extra witness, as the work was essentially covered by the other witnesses.

Asked by Justice John C. Egan Jr. about another FBI connection, a video demonstrating the power of similar explosive devices, Dwyer said the video was needed to refute defense claims that they were simply fireworks.

Justice William McCarthy questioned why photos of the damage and testimony weren’t enough. That evidence, Dwyer said, didn’t give the same sense of what the actual devices were.

Dwyer also noted that a top terrorism count and another arson count were both rejected by the jury, even after the demonstration video.

“I think the fact there was no prejudice is shown by the verdict itself,” Dwyer said.

In rebuttal, Pierce told justices he hopes they watch the video, as it was provided. The video, he said, did not match up with Raucci’s case.

“I don’t believe it’s harmless,” Pierce said. “It was clearly brought in at the very end of case as a coup de grâce, ‘We’re going to make sure this jury thinks, ‘Oh my god.’ ”

Pierce called it “highly prejudicial,” especially in comparison to the damage done in the Rotterdam case.

“I’ve done more damage with my shoulder to a door than that,” Pierce said.

Regarding the counts from outside the county, McCarthy questioned how the details simply couldn’t have come in under a different method related to prior bad acts.

Pierce suggested there wasn’t enough proof to let them in that way. It was unclear if Pierce was also referring to the attempted Schodack bombing, from Rensselaer County. Raucci was linked to that incident through DNA found on the cigarette fuse.

But the method that was used to bring in those acts, Pierce said, led to a lengthy series of prejudicial witnesses.

“It was so pervasive,” Pierce said. “It led to them putting in a week and a half of testimony about how Mr. Raucci was a terrible boss.”

The Appellate Division is expected to rule in the next month or two.

The criminal appeal is separate from another Raucci-related appeal now before the state’s highest court, the Court of Appeals. In that case, the state Office of Victim Services is seeking to seize Raucci’s $79,000 annual pension under the state’s Son of Sam Law. The money would be held for payment to Raucci’s victims, should they win lawsuits against him.

Pierce, who also argued that case on Raucci’s behalf, contends protections on pensions shield the money from such actions.

Arguments in that case were held in early January. A decision is expected this month.

 
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