As Sandy Murder Trial Opens, One Defendant Asserts He's Gay

By: DUNCAN OSBORNE
Source: Gay City News

One of the defendants in the 2006 murder of Michael J. Sandy, a gay man, is himself now claiming to be gay.
The trial of two defendants in the Michael J. Sandy case opened with defense attorneys asserting that their clients never intended to harm the gay African American let alone rob him and so they cannot be found guilty of felony murder and related crimes in the 2006 homicide.

And in a case in which anti-gay hate crimes are being alleged, one defense attorney, in a startling revelation, asserted in his opening remarks that his client is gay.

The other attorney explained his client's view of what happened the day Sandy died.

"Basically what you had here was a scam," John D. Patten, the attorney for John Fox, told the Brooklyn jury on September 17. "The plan was to scam Mr. Sandy to get his money."

Fox, 20, and the second defendant, Anthony Fortunato, 21, are charged with two counts of second-degree murder, one as a hate crime, four counts of attempted robbery with two as hate crimes, two manslaughter counts, one as a hate crime, and two assault counts, one as a hate crime.

The murder count, called felony murder, alleges that while committing a felony - attempted robbery in this case - the defendants caused Sandy's death.

Fox and Fortunato are being tried together, but with separate juries. If the defense can convince the juries that their clients never intended to rob Sandy they may avoid a conviction on the top count.

Robbery is legally defined as forcible stealing. Patten and Gerald J. Di Chiara, Fortunato's attorney, both said that their clients never planned to use force.

"There was never a plan to use violence," Patten said. "There was never a plan to commit robbery."

On October 8 last year, Fox, Fortunato, and Gary Timmins, 17, allegedly approached Sandy in an online chatroom for a sexual encounter. As they headed for the meeting with Sandy, they were allegedly joined by Ilya Shurov, 21.

Sandy traveled from his Williamsburg apartment to Sheepshead Bay near where the young men lived. Once there he said he was uncomfortable after seeing Fox and Fortunato together and left. Later that same evening, Sandy contacted them again and was invited to another meeting, supposedly only with Fox, at Plumb Beach.

Once on the beach, Shurov allegedly attacked Sandy and chased him on to the nearby Belt Parkway where he was hit by a car. Sandy, 29, died on October 13.

A defense in felony murder is that the defendant did not cause or aid in the killing and did not believe that any other participant would cause death or serious physical harm. Defense attorneys pointed to Shurov as the one who violated the plan and caused Sandy's death.

"The question at the end of the day is will the idiotic craziness of Ilya Shurov take another victim?" Di Chiara said.

Shurov faces the same charges as Fox and Fortunato, but will be tried separately. No date has been set for his trial.

Timmins pleaded guilty to one count of attempted robbery as a hate crime last year and is cooperating with the prosecution in exchange for a four-year sentence.

While witnesses place Fox and Shurov on the parkway grappling with Sandy, Fortunato was not on the parkway.

"Did you hear anything about Anthony Fortunato being near that highway?" Di Chiara said referring to the opening statement by Anna-Sigga Nicolazzi, the prosecutor in the case. "He's not fighting with Michael Sandy, he's not pulling at Michael Sandy."

The prosecution's theory is that when the four selected a gay man to rob - thinking he would be an easy victim - that made this a hate crime. The prosecutor has not said the four were motivated by anti-gay bias.

A surprise in Di Chiara's opening was the revelation that Fortunato is gay.

"This man has been tortured by a secret that he has carried for a long time," Di Chiara told the jury. "His secret is coming out in this courtroom and his family is listening to it."

Di Chiara said Fortunato had been secretly meeting with other men for sex for several years. The value of that news in the Sandy trial is unclear.

To show that Fortunato has committed crimes similar to the alleged Sandy robbery, the prosecutor will introduce evidence that Fortunato had invited gay men to a local motel where he had stolen their belongings when they went to the toilet. The revelation may be an effort to explain that evidence, thereby mitigating its impact.

The jury may reject the notion that a gay man can commit a hate crime against another gay man, but even without that charge Fortunato could be still convicted of felony murder, though not as a hate crime, which carries a maximum sentence of 25-to-life.

As an alternative explanation for the events of October 8, Di Chiara said that his client had thought that Timmins might be gay and wanted the opportunity to come out to him. Fortunato thought that if he, Timmins, and Sandy smoked marijuana together he would feel comfortable telling him.

A problem for the defense is that Fortunato, the alleged ringleader in this crime, will have to take the stand to put his being gay into evidence. If he does that, he will be subject to cross-examination by Nicolazzi, a skilled and experienced prosecutor.

Unlike Fox, who implicated himself in planning and executing the crime in five statements given to police, including a 21-minute videotape, Fortunato never spoke to the cops.

Much of the case against Fortunato relies on Timmins' testimony and aspects of that testimony came out during the prosecutor's opening remarks. Timmins will say that as Shurov and Fox chased Sandy, Fortunato gave him an instruction.

"This defendant yelled for Timmins to get into Sandy's car," Nicolazzi said referring to Fortunato.

The next day, as they joked about a newspaper article about the crime, Timmins will testify, Fortunato looked at a picture in the newspaper of Sandy's car and some of the victim's belongings, including a book bag, that were scattered on the ground.

"The defendant, pointing at that picture, said he was worried about that bag because he had taken that bag and gone through it," Nicolazzi said. No fingerprints from any of the defendants were found on Sandy's car or on any of his belongings.

Under the legal theory that the defendants acted in concert, Fortunato could be held responsible for Sandy's death if the jury decides he intended to commit robbery and that in the course of that robbery other participants caused Sandy's death.

The first witnesses in the case were a police officer who described the scene upon arriving at Plumb Beach after the alleged attack and Sandy's condition there. He also testified about later identifying Sandy's body at the city medical examiner's office.

The second witness, Susan Vaillant, testified that she was driving to the airport when she stopped by three young men fighting in the parkway in front of her car.

"The boy with his back to me was being attacked by the other two boys," she said. "He was being pulled and pushed and shoved."

The one being attacked then ran out of her sight.

"I heard a very loud bang," she said. "The boy got hit, he got thrown into the lane next to me."

Two days after the attack, Vaillant identified Fox and Shurov in line-ups as the two young men she saw attacking a third on the parkway. She also identified Fox in court. The trial will continue on September 18.

©GayCityNews 2007