In a day or two, Alan D. Tomaski will walk out of Great Meadow Correctional Facility a free man - just 17 months after a judge sentenced him to 25 years in prison for first-degree manslaughter.
Earlier this week, the same judge vacated Tomaski's conviction.
State Supreme Court Justice Russell P. Buscaglia did so - not because of any new proof that Tomaski did not beat and stab Samuel J. Ciapa to death in 2002, as a jury found last year - but because the conviction came after the five-year statute of limitations for that crime had expired.
"This was a tough call. The judge followed the law and the evidence and did the right thing," said attorney Joel L. Daniels, who, with Andrew C. LoTempio, defended Tomaski.
Now that the judge has set aside the conviction, prosecutors cannot again charge Tomaski with murder, because of double-jeopardy laws, since a jury already acquitted him of that charge. And prosecutors cannot charge him with manslaughter, either, because of the statute of limitations.
Murder does not have a statute of limitations. But first-degree manslaughter does.
In Tomaski's trial last year, prosecutor James F. Bargnesi requested that manslaughter be added as a lesser charge.
Buscaglia allowed jurors to consider manslaughter if they did not wish to convict Tomaski of second-degree murder.
Daniels and LoTempio objected to Bargnesi's request - not because of the statute of limitations grounds - but because they contended the prosecution's case focused on what prosecutors called Tomaski's intent to kill Ciapa.
To throw in manslaughter at the last moment was too much of a change in the prosecutor's theory of the crime, LoTempio said at the time.
Jurors found Tomaski guilty of first-degree manslaughter.
Tomaski raised the issue of statute of limitations in a letter to Daniels last summer. Tomaski found another case with similar circumstances in which a statute of limitations had not been cited but should have been. His lawyers filed a motion to vacate his conviction.
In fact, Daniels and LoTempio each took a turn on the witness stand last November during a hearing before Buscaglia, and each said he provided Tomaski ineffective legal counsel.
But it wasn't just the defense lawyers who erred.
"Somebody else asked for the charge down," LoTempio said of Bargnesi. "We didn't. Was that a mistake? Of course it was."
The parents of Samuel J. Ciapa learned of Tomaski's impending release on Wednesday, and they are stunned.
"The evidence against him was so overwhelming," Marcia Ciapa, Samuel Ciapa's mother, said of Tomaski. "I don't want to know about a technicality. I don't know how I'm supposed to act or think. I'm in shock. I just want to scream."
Gary Ciapa, the victim's father, expressed anger at the judge for not catching the error.
"They all screwed up," he said.
Mrs. Ciapa said she wished the judge had looked for reasons to keep Tomaski in prison rather than find a technicality to free him.
The Ciapas acknowledged the prosecution's mistake but also remember how hard police and prosecutors worked to put a case together against Tomaski.
"I can't even begin to tell you how hard the Cheektowaga police and the district attorney worked on this case," Mrs. Ciapa said. "They put so much heart into this case."
Erie County District Attorney Frank A. Sedita III said he would not criticize his prosecutor's request for the lesser charge.
"He thought that was the best strategy to employ based on how the trial testimony came out," Sedita said.
The District Attorney's Office contended that Tomaski lived in West Virginia for 324 days between 2003 and 2004. If Buscaglia had agreed with that contention, that would have meant those days would not have counted against the five-year limit and the manslaughter conviction would have stood.
However, Dawn Tomaski, 76, Alan Tomaski's grandmother, testified that her grandson lived in her Orchard Park home for the 324 days in two stints between June 2003 and October 2004. And she read from her diary entries as proof he was indeed living in New York.
Entries contain specific references to Alan Tomaski being in Orchard Park on 125 days, out of the 324 days in dispute.
The grandmother also produced credit card records showing the purchase of dog food from a Hamburg store during the disputed time period, with her grandson's signature.
"What saved the day?" Daniels asked. "The grandmother's diary."
"I can't believe he believed the grandma," Mrs. Ciapa said of the judge.
Prosecutors contended Mrs. Tomaski enabled her grandson to live a life of crime for years, and that her testimony and diary entries could not be trusted.
The judge disagreed.
"She is the only witness that provides reliable testimony regarding dates and places," Buscaglia said in his decision vacating the conviction. "Her daily entries on specific dates referring to the activities of the defendant were credible, reliable and corroborative evidence."
Shortly after Ciapa's death, a Cheektowaga detective collected her diary to see if it contained information that could lead to Alan Tomaski's capture.
"Her cooperation before anyone knew the statute of limitations would become an issue is probative in rebutting the (prosecution's) argument of her alleged fabrication of the diaries since she kept a diary prior to 2002 and she continued to keep one for the years following as well," according to Buscaglia's decision.
Sedita said Buscaglia's ruling hinges, in part, on the court's finding that both Daniels and LoTempio provided ineffective counsel to Tomaski. Doing so allowed the judge to review the case in a couple of hearings over the past year.
"It's difficult to understand how the court could reach such a decision," Sedita said. "Of course, we respect the judge's decision. But given their well-known reputations in the legal community, it's just difficult to understand how they could be deemed ineffective.
"Anybody who has ever prosecuted a serious case in this county knows their high level of skill and professionalism," Sedita said of Daniels and LoTempio.
"The bottom line here is a convicted killer, convicted by a jury, will be let go and free based in part on a finding that both were ineffective," Sedita said.
Dawn Tomaski, while happy her grandson will be released from prison, also worries.
"Besides being happy he'll be out, I'm also scared," she said. "Are people going to avoid him like the plague? Will police officers pull him over? He's going to be a target. Will he be safe? All these things are going through my head."
Gail Tomaski, who is Alan Tomaski's aunt, said her family does not believe he killed Ciapa.
"We're happy, but not because we think he got away with murder," she said. "He was wrongly convicted to begin with."
She also expressed sympathy for the Ciapas.
"They didn't deserve any of this," she said. "I think of them every single day. Their lives will never be the same."
Michael Hesse, who cooperated with authorities and pleaded guilty to first-degree manslaughter, is currently serving a 17-year prison term.
He testified that he had held Ciapa down as Tomaski stabbed him. All three men - Ciapa, Tomaski and Hesse - were friends and associates. Authorities have said Tomaski, a drug dealer, mistakenly believed that Ciapa had stolen a pound of marijuana from him, and killed him in an act of "street justice."
"I think it took a lot of guts to do it," LoTempio said of Buscaglia's decision to vacate the conviction. "He followed the law to the letter."
