So said the lawyer for Anthony Fortunato, 21, one of four men accused of chasing a gay man to his death on the Belt Parkway during a robbery on Oct. 8, 2006.
All along, homosexuality has defined the case. Prosecutors have used it as a sword, seeking heavier sentences for a hate crime.
As the trial began in Brooklyn Supreme Court yesterday, Mr. Fortunato’s lawyer, Gerald J. Di Chiara, sought to use sexual orientation as a shield. Without much explanation of how he planned to introduce this fact or turn it to his advantage, Mr. Di Chiara offered it to the jury in his opening argument. Not only was Mr. Fortunato gay, Mr. Di Chiara said, but so was the main prosecution witness, Gary Timmins, 17, who has pleaded guilty to attempted robbery in exchange for his testimony.
In fact, Mr. Di Chiara continued, Mr. Fortunato had planned to tell his friends of his sexual orientation on the night in question. Luring a gay man out to a secluded lot in Sheepshead Bay was part of that plan, Mr. Di Chiara said.
The melodramatic turn temporarily obscured the darker nature of the case. Last Oct. 8, prosecutors said, a 29-year-old designer named Michael J. Sandy was lured from his home in Williamsburg to his death.
“He was preyed upon by four young men who decided to rob him,” Assistant District Attorney Anna-Sigga Nicolazzi said in her opening statement. By her account, Mr. Fortunato found and contacted Mr. Sandy through a gay Web site.
“In his words,” Ms. Nicolazzi said, “ ‘The gay guys would always come, and it would be easy.’ ”
Mr. Fortunato and a co-defendant, John Fox, 20, met Mr. Sandy in the parking lot, Ms. Nicolazzi said. Expecting only one man, Mr. Sandy drove away. But within hours, he resumed the online chat and returned to the lot.
This time, Ms. Nicolazzi said, Mr. Fox approached the car alone. He directed Mr. Sandy a short distance to Plumb Beach, a strip of sand between the highway and the Dead Horse Inlet reputed as a meeting place for sex.
From behind the dunes, three other young men ran out to attack Mr. Sandy. One of them, Ilya Shurov, 21, punched him in the face, she said. Twice, Mr. Sandy broke free, but his attackers chased him into the three eastbound lanes of the Belt Parkway, Ms. Nicolazzi said. He was struck by a car and died of his injuries five days later.
The police traced the defendants through the online screen name. Prosecutors offered the youngest, Mr. Timmins, a sentence of four years in exchange for his testimony.
The three other men were charged with murder as a hate crime, a distinction that can draw a longer sentence. They also were charged with felony murder, a count requiring prosecutors to prove that the killing took place during a robbery.
In their opening statements, defense lawyers argued that no robbery had taken place.
“He’s innocent of these charges,” said John D. Patten, a lawyer for Mr. Fox. “John Fox, as he sits here today, is not a murderer, has never been a murderer and never will be a murderer.”
Rather than a robbery, Mr. Patten argued, the luring of Mr. Sandy was better described as the crime of larceny by trick. The defendants intended to invite Mr. Sandy to smoke marijuana, ask for money to buy the drugs, then leave. The violent attack by Mr. Shurov, he said, was not anticipated by the other defendants.
Unlike robbery, larceny by trick is not an element of felony murder. The notion of a robbery, Mr. Patten said, was concocted after the fact by the prosecutors and investigators.
Mr. Fortunato’s lawyer made much the same argument, adding a twist by declaring his client’s homosexuality. Outside the courtroom, he sought to explain his theory, to a certain extent.
Mr. Fortunato, he said, might have planned to smoke marijuana with Mr. Sandy as a means of testing his friends’ sentiments about homosexuality. Or, he said, perhaps Mr. Fortunato had wanted to swindle a gay man, to see how his friends reacted to a gay person. Or, he said, perhaps Mr. Fortunato had simply wanted to rob somebody.
Beyond that, Mr. Di Chiara kept the defense strategy to himself. Asked how all this would help his case, he said, “You got to read the whole book.”
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My opinion about all of this is that everyone who committed this crime should be punished. These men preyed on the deceased and later killed him. Does his sexuality determine whether he lives or not, it shouldn't. I feel like in this article they attemped to justify his death by revealing that one of his attackers was also gay. Sexuality doesn't matter. They caused the death of a man and I believe that they should suffer the consequences accordingly. These young men knew what they were doing was wrong. No I don't believe that they intentionally caused his death. But its too late to make excuses for something that has already taken place.
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