Prosecutors say they failed to give evidence to defense in Balancio case

Wednesday, December 6, 2006

Prosecutors say they failed to give evidence to defense in Balancio case

Timothy O'Connor
The Journal News

Westchester County prosecutors have acknowledged they improperly withheld evidence from reputed Tanglewood Boys gang member Anthony DiSimone in the trial in which he was convicted of killing a Yonkers college student.

A federal judge will now decide whether to drop the charges against DiSimone or order a new trial for him in the Feb. 4, 1994, stabbing death of 21-year-old Louis Balancio during a brawl outside a Yonkers bar.

"I believe it's a victory," said David Fuereisen, DiSimone's lawyer, after an appearance yesterday before U.S. District Judge Charles Brieant in federal court during which Westchester County prosecutors submitted an affidavit agreeing to DiSimone's request to have his conviction declared invalid due to legal error.

Last month, Assistant District Attorney Valerie Livingston wrote a letter to Fuereisen saying that a review of 52 boxes of evidence from the case revealed several documents that should have been turned over to the defense during the trial but were not.

Yesterday, Livingston said prosecutors were agreeing to DiSimone's motion, called a writ of habeas corpus, in the interests of justice.

"We are doing these things, your honor, out of a sense of fairness and justice," she said. A spokesman for Westchester District Attorney Janet DiFiore declined to comment further.

Some of the evidence prosecutors have turned over to the defense points to someone other than DiSimone as the killer, Fuereisen said.

But Jeffrey Balancio, a former Yonkers city councilman, said he remains "100 percent" sure that the right man was convicted of his son's killing.

"I am very confident that the D.A.'s Office will continue to prevail and justice will be served," he said. He called the evidence that DiSimone did not get during his first trial "incidental stuff" that won't make a difference if there is a retrial.

He and his wife, Dorothy, went to court yesterday prepared for what happened.

Dorothy Balancio, a sociology and behavioral sciences professor at Mercy College, took deep breaths, adjusted her orange sweater and tapped her feet as she waited for the hearing to begin.

"I didn't think we'd have to do this again," she said softly.

Louis Balancio was stabbed 13 times during a brawl outside the Strike Zone bar on Central Avenue in Yonkers on Feb. 4, 1994. Dozens of witnesses saw the fight, but none came forward out of fear of the gang to which DiSimone was alleged to have belonged, the Tanglewood Boys, a group that federal authorities said served as a proving ground for future Mafia members.

DiSimone disappeared after the killing. Following an international manhunt, he walked into a Yonkers police precinct Nov. 9, 1999, and surrendered. He was convicted of murder in October 2000 and sentenced to 25 years to life.

If there is a second trial, Jeffrey Balancio said, he believes the case against DiSimone, now 40, could be more convincing this time.

"Maybe people now will be less intimidated by the gang that ruled the neighborhood then and we'll have even stronger evidence," he said.

Fuereisen, DiSimone's lawyer, will argue that there shouldn't be a second trial when he submits papers to Brieant later this month. Westchester prosecutors are expected to ask Brieant for a new trial in state Supreme Court when they reply next month.

Jeffrey Balancio said he and his wife have as much faith in DiFiore's office as they did in former District Attorney Jeanine Pirro. But he said that faith doesn't lessen the pain of this latest turn in the saga.

"Time doesn't heal all wounds," he said. "Sometimes it just gives others the opportunity to pick at the scabs."

Reach Timothy O'Connor at tppoconnor@lohud.com or 914-694-3523.