Westervelt sentenced — Defense plans to appeal
By Melissa Hale-Spencer, The Altamont Enterprise, September 1, 2005
ALBANY — Eleven months after he was arrested and nearly two months since a jury found him guilty of murder, Erick Westervelt, still maintaining his innocence, was sentenced last Thursday to 25 years to life in prison.
“Your acts were cold, calculated, and inhuman and violent,” said Supreme Court Judge Joseph C. Teresi, as he sentenced Westervelt to the maximum allowed for second-degree murder.
Arrested when he was 23, Westervelt will be eligible for parole when he is 48 or 49. He plans to appeal.
Westervelt, who had lived with his family on Salvia Lane in Guilderland while he attended the University of Albany, aspiring to be a police officer, was convicted of murdering 28-year-old Timothy Gray at his Bethlehem home.
A jury found him guilty on June 29 after deliberating for about 24 hours. Teresi presided over the trial.
Bethlehem Police told The Enterprise last fall that someone went to Gray’s house at 95A Elsmere Ave., and beat him in the head and face with a hatchet and then repeatedly kicked him when he was on the ground. More than 12 hours after Gray was attacked, he was found by a neighbor, lying on his porch. He was taken to a hospital, where he died five days later.
Although Westervelt left behind no DNA evidence, he confessed to the crime on video and signed a confession. Prosecutors also said he had a motive: His ex-girlfriend, Jessica Domery, had left him for Gray. She and Gray lived together at the home on Elsmere Avenue where Gray was killed, although Domery was away at the time of the attack.
Domery had dated Gray for five years. For a half-year, from December of 2003 to June of 2004, she dated Westervelt, witnesses testified. Then, Domery left Westervelt to go back to Gray.
That June, Westervelt testified during the trial, he had gone to Domery’s house in Bethlehem — he said she had been his only serious girlfriend — and was talking with her outside when Gray came out and they scuffled. Gray asked Domery if she had had sex with Westervelt and, he told the jury, “She said no and I stood there in disbelief.” He said he left the property and never saw Gray again.
The next month, on July 8, Westervelt testified, Domery sent him a text message via cell phone with the question, “One more time?” He spent that night at her house in Bethlehem, he said, and had no physical contact with her after that.
During his trial, the defense portrayed Westervelt as a gentle, peace-loving man wrongly accused of a heinous crime. Westervelt’s three best friends, the four Guilderland High School graduates inseparable since elementary school, said he was the nicest, most peaceful person they had ever known. His parents testified he was home the night of the murder and the defense claimed his confession, forced by police, was a false one.
Westervelt told the jury he asked to see a lawyer several times while being questioned for hours by Bethlehem Police but was never taken to a lawyer.
“It was very stressful and very hard and I was very annoyed because every single time I told them I didn’t do it, it didn’t matter to them,” Westervelt told the jury. “I could not leave.”
The prosecution painted a picture of a man with parents who would lie to protect him, a man who did computer research on murder and sharpening knives before using a hatchet, similar to a boyhood souvenir that had hung on his bedroom wall, to commit the crime.
Before the judge pronounced his sentence last Thursday morning, Gray’s sister and father faced the courtroom and read statements to the judge. Westervelt’s mother and father, Wendy and John, and his younger brother, Jason, sat on the right side of the courtroom in the front row. Gray’s family, who live in Westchester County, sat on the left side.
Westervelt, in an orange prison jumpsuit, with his wrists and ankles manacled, sat beside his lawyer, Kent Sprotberry.
Plans to appeal
Before the sentencing, Teresi denied a motion to set aside the jury verdict because of improper introduction of prejudicial statements. A trial judge does not have the power to change a guilty verdict to a non-guilty verdict, said Teresi.
The motion, filed by Mark Sacco, one of Westervelt’s attorneys, had alleged that post-arraignment statements were in error and that a letter Westervelt wrote to Jessica Domery was improperly admitted as evidence.
The trial evidence was adequate as a matter of law, said Teresi, and the elements of a crime were proved beyond a reasonable doubt, he said, citing several cases as precedent.
“Evidence in this case is legally sufficient and legally adequate,” said Teresi, dismissing the motion.
Westervelt plans to appeal. The Appellate Division, to which the appeal will be made, does not hear new evidence; rather, a panel of five justices looks to see if the law was followed.
Sprotberry told The Enterprise this week that there were “a bunch of errors” — procedural issues — at the trial but that the primary basis for the appeal will be, again, the improper introduction of prejudicial statements.
“What we learned at the trial — and we didn’t know it before — was my client began writing a letter to Jessica Domery before the arraignment process,” said Sprotberry. “They interrupted him and took him out of the room, and arraigned him.”
He went on of arraignments, “You have an absolute right to counsel in New York State. He did not have counsel.” After he was arraigned, Westervelt continued writing his letter to Domery, said Sprotberry.
“All those statements should not have been admitted and they were,” he said. “We stumbled into it during the trial.”
Asked how significant the letter was in the trial, Sprotberry said, “It was a very, very emotional verdict; two or three jurors were crying. They had been stuck on it, talking back and forth. One never knows what may have swayed them. It may have been the single most important thing....That is why we want a retrial.”
Sprotberry said that, realistically, the spring session is probably the earliest the appeal would be heard.
A sister’s plea
Jennifer Gray told the courtroom last Thursday morning that, throughout the trial, her brother was referred to as “the victim,” but he was so much more than that, she said, describing him as a son, a brother, an uncle, and a friend.
“Tim was extremely loyal...He loved unconditionally,” said Gray. “He had a smile that would melt your heart....He said what he thought; he never held anything back.”
She talked about a “bright, promising future” for the Plattsburgh State University graduate and said that nearly 1,000 people attended his wake.
“People came from all over to his wake...They truly warmed our hearts,” said Gray.
She then recalled receiving a phone called on Oct. 6, telling her that her severely injured brother was at Albany Medical Center.
“I will never, ever forget what I saw,” said Gray.
He was in a coma in the intensive care unit, with strips holding his skull together, she said. “I never thought I would be saying good-bye to my brother so soon,” she said.
She has attended a support group, since his death, she said and learned, “The pain you feel never goes away....”
“It still feels like yesterday,” said Gray. “Sometimes it’s hard to even get out of bed.”
Jennifer Gray is the oldest of the three Gray siblings. Timothy was the middle child, and the youngest, a boy, “not only lost his brother; he lost his best friend,” said Gray.
She also said that Gray was a great uncle to her now five-and-a-half-year-old daughter. When Jennifer Gray told her daughter that her uncle was in the hospital, she said, “Can I make him a get-well card? I think he would like it.”
Gray then described how hard it was to tell her daughter that the uncle she had adored had died. When she told her that her Uncle Tim had gone to heaven, she said, “Don’t worry, Mom. Tim’s an angel now,” Gray tearfully recalled.
She said she often wonders what the future holds for her daughter when she comes to grips with how her uncle died.
With the guilty verdict, said Gray, came many emotions — anger, sadness, and contentment that justice had prevailed.
Gray said she recognized that the Westervelts have lost their son and brother but the big difference is they can visit him in jail, while her family can only visit their son and brother in the cemetery.
She then addressed Westervelt himself. “To Erick, I say this...It was you. You may have fooled a lot of people,” said Gray, but she wasn’t fooled.
“I heard you call my brother a loser. But I think the real loser here is you,” said Gray. She said that, when Westervelt is in state prison, his friends will move on. “In the end, you will be alone and you will be the real loser,” she said.
She concluded that she wanted a sentence of life in prison without parole for Westervelt. “Erick and his family should be robbed of their futures the way my family was,” said Gray.
She stepped down from the witness stand to join her family. On the way, she hugged her father, who was walking to the bench to take his turn to speak to the judge.
A father’s loss
Every parent is proud of his child, said George Gray, describing his son as a “gentle man.”
Drawing from literature, he said, “Nature, time, and I have been cheated in the loss of my son.”
He spoke of the void caused by the “actions of a selfish, foolish, cowardly person.”
He described his son’s immediate future plans: He was going to look for a condo in Guilderland and said he was going to get married. He said he had been to a jewelry store, which his father presumed was for a ring.
“I will never see Tim get married; I will never see him at my dinner table on a holiday...I will never have the chance to ask him for his advice...,” said George Gray.
All this, he said, was because of “one selfish, jealous, scheming, and manipulative person — Erick Westervelt.”
“Tim’s grandfather, my father, died four months after the murder,” said George Gray, partly because of it.
“That phone call,” he said, referring to the Oct. 6 call from police, “lives in our memory, to be played forever.”
He said, if it were not for his tattoos, he would not have recognized his son in the hospital, he was beaten so badly. He held his son’s hand as he died, said George Gray.
“I told him I loved him and I hope he heard,” he said.
He went on, then, to speak of Erick Westervelt. “His parents will always be known as the parents of a convicted murderer,” he said.
He spoke, too, of how much Timothy Gray had loved his niece and of how she still looks for him; and of how “his fraternity brothers shall forever mourn the loss of one of their own.”
He said that they could attest to how strong he was. He worked delivering heavy bottles for Culligan Water and he was in “top shape” as a hockey player, said his father.
“There is no way he could have been attacked face to face,” said George Gray. “Tim was struck on the head from behind...This was a crime committed in a cowardly way,” he said, by a jealous person who wanted to eliminate his competition.
“It was methodically planned and Tim was executed,” said George Gray, stating it is the job of a father to protect his child. “The sad part is, if Erick called 911 anonymously, Tim may still be here,” said his father.
“I am sickened at the sight of him,” he said of Westervelt.
George Gray also said that Westervelt wrote to Jessica Domery how sorry he was but not to his family.
In an apparent allusion to the death penalty, George Gray went on, “I’m not a believer in the Biblical notion of an eye for an eye.”
He said he wanted Erick Westervelt to spend the rest of his life in prison.
Westervelt maintains innocence
Assistant District Attorney David Rossi told the judge that, based on the brutality of the crime and on Westervelt’s refusal to accept responsibility for the act, he asked for the maximum sentence.
Sprotberry countered that Westervelt had indicated the frustration he feels, not only in the verdict but because he knows he’s not the one to extend healing.
“Mr. Westervelt maintains his innocence,” he said.
Westervelt then stood and spoke in a controlled voice.
“First of all,” he said, “it’s tragic the Grays lost a brother, a son...I extend my deep condolences.”
He went on to say it was no secret that he and Timothy Gray did not like each other. “He spread lies and rumors about me,” said Westervelt. He also said he was the first and only one that police focused on.
“I was at my house that night,” he said, watching a Yankees baseball game with his father.
“The only thing that connects me at all to this case are statements that are completely false...,” said Westervelt. “I maintain my innocence.”
He also said, “I only wish Jessica had been there when they played the Oct. 7 video with what the Bethlehem Police were saying about her...”
Westervelt called the verdict “an absolute mockery of justice in every sense” and said he looked forward to a new trial and the truth coming out.
Asked about Westervelt’s statement this week, particularly what he had meant when he said he wished Domery had seen the video, Sprotberry said, “He was very frustrated. A big part of the trial was the trickery employed by the Bethlehem Police officers to befriend Erick Westervelt.
“They frequently were telling him she was beaten up by this guy; they were not casting her well. He defended her, and it worked. He ended up saying what they wanted him to say — that he beat up Timothy Gray.
On the video tapes, Sprotberry said, the police “call it mutual crap.” He reported the police saying, “We know it happens. Two guys get in a fight over a girl.”
Sprotberry went on, “They never told him the person was dying. He thought he’d say, ‘Yeah, I got in a fight,” and he could go home.”
Asked, though, if Westervelt hadn’t confessed to beating Gray with a hatchet, Sprotberry said that police, towards the end, told Westervelt that Gray was hurt more than just with fists, so Westervelt tried to think of something hard that wouldn’t be harmful like a knife. He thought of the souvenir hatchet he’d had since he was a boy and named that, Sprotberry said.
“He was just trying to come up with something — not a knife that would really hurt,” said Sprotberry.
Asked if he believed Westervelt is innocent, Sprotberry told The Enterprise, “My beliefs are neither here nor there. I wouldn’t share them with you. The important point is the tactics employed by the Bethlehem Police Department. He absolutely confessed to something he didn’t do.”
Asked about Westervelt’s calmness and lack of emotional expression during the sentencing, Sprotberry quipped, “I hit him with a rubber hose enough times to get him in line.” Then he went on, in a serious tone, “He’s holding it together; he’s focusing on getting a retrial; he’s putting his hope in that.”
Sprotberry went on to say of his Albany firm, “We do serious criminal defense.” He said it has been his experience that clients with an “upper-end sentence like 15, 20, 25 years to life” don’t usually get out on parole but “essentially serve a life sentence.”
He said of Westervelt, “When he finally does get before a parole board, they like to see remorse. He’ll say, ‘I didn’t do it.’ I don’t expect him to ever make parole.”
After hearing Westervelt’s statement, Judge Teresi told Westervelt that he attacked Gray, leaving him in a pool of his own blood, to die a slow and painful death.
In preparation for this, the judge told Westervelt, he stalked and harassed him “as a jilted lover.”
He went on to tell Westervelt, “You’ve demonstrated a total lack of remorse...You’ve shown absolutely no empathy for your own family. You’ve taken no responsibility for a heinous crime.”
Teresi then sentenced Westervelt “to a term of your natural life,” a 25-year minimum term.
The members of the Gray family tearfully hugged each other on hearing the sentence.
Westervelt’s family remained immobile.
As Westervelt was ushered out the center aisle by officers, he caught the eye of his father.
“We know you’re innocent,” John Westervelt quietly told his son.
The television cameramen, whom the judge had asked to leave the courtroom, waited in the fourth-floor hallway, outside the courtroom door.
Westervelt had proclaimed his innocence as he was escorted past the gauntlet of cameras and Jennifer Gray told the reporters afterward, “He’s a liar.”
She went on, “It was definitely a planned murder...He did research on the Internet.”
She said, though, that she did not blame his family. “The Westervelts have suffered as much as we have,” said Gray.
The sentence, she said “closes this chapter, but the grief will never go away....Even if he confessed, I would never forgive him.”
Rossi told the press of the Grays’ statements before the sentencing, “The family wanted the world to know more about Tim.”
Asked about the allegations of a coerced confession, Rossi said of Westervelt, “He was read his Miranda rights six or seven times.”
Asked about the lack of forensic evidence, he said, “It’s not like TV...The jury considered all that.”
The Westervelts and their lawyer did not speak before the television cameras.
John Westervelt, however, told The Enterprise, “Justice is blind in this case.”
Asked what he and his wife and his son Jason were feeling, John Westervelt said, “We’ve been devastated since this started. All he was guilty of was a false confession.”
Asked how his son was holding up in prison, he said, “How would you be doing if you were innocent and put in jail?...
“He’s doing as best as can be expected. He’s innocent. He was with us all that night. There were no marks on him. Whoever attacked Timothy Gray is still out there.”