January 7, 2013


Parole Repeal in Cop's Killing Upheld by Court


An Appellate Division panel ruled 4-1 Dec. 31 that the state Parole Board was justified in revoking probation for Pablo Costello, whose accomplice in a 1978 Brooklyn robbery shot and killed Police Officer David Guttenberg.

The lone dissenting judge took a swipe at the Patrolmen's Benevolent Association for its vigorous efforts to stop the board from releasing cop-killers.

'Shouldn't Be Serving Life'

Without naming the PBA, Justice Edward O. Spain criticized those who "openly advocate the recurring position that an inmate convicted for the death of a law-enforcement officer—even a nonshooter convicted of felony murder, as here—should never be released on parole. It bears emphasis that this was not and is not the law.

"...Only an intentional killing by a defendant, or commanded by a defendant, would qualify for life without the possibility of parole," he continued. "Petitioner's conviction and sentencing here allow for parole release."

PBA President Patrick J. Lynch was unapologetic. "It remains our firm belief that those who are convicted for the murder of a police officer should, absent a viable death penalty, be incarcerated for life," he said in a statement. "We are fortunate to have such a law on the books today.

"Sadly, it didn't exist when Police Officer David Guttenberg was executed upon entering a store unaware of a robbery in progress," he added. "The PBA makes no apology for its fight to keep copkillers in jail for life and we ask those who agree to visit our website and make that belief known to the Parole Commissioners."

A No-Parole Site

The home page on the PBA website,, has a "Keep Cop-Killers in Jail" link that connects to a list of more than 50 officers who have been murdered on the job and the names of the people convicted. By clicking on a name, a visitor can send a message to the Parole Board opposing release of specific cop-killers, or all of them. The PBA says hundreds of thousands of people have used the site to send a message.

One of Mr. Costello's lawyers, Alfred O'Connor of the New York State Defenders Association, said he would seek to appeal.

Officer Guttenberg, 49, was killed when he walked into a robbery in progress in an auto-body shop at 86th St. and Seventh Ave. in Brooklyn to look for the driver of a double-parked car, according to the Officer Down Memorial Page.

He was unaware that Luis Torres was inside robbing the shop, and when he entered, Mr. Torres killed him. Mr. Costello, who was serving as a lookout, fled on foot without firing a shot.

Shooter Died in Prison

Both Mr. Torres and Mr. Costello were convicted of murder, Mr. Costello under the felony-murder rule, which states that any participant in a crime in which someone is killed is criminally responsible for the death. They were sentenced to 25 years to life. Mr. Torres died in prison in 1986.

Mr. Costello became eligible for parole in 2003 and was granted it in his fourth attempt in 2009. The decision became the subject of critical articles in the Daily News. The PBA also attacked the decision and arranged for Officer Guttenberg's widow, four children and other survivors to make victim-impact statements. The Parole Board cited those statements in revoking parole. Mr. Costello appealed administratively, and when that failed, he sued.

The dispute had to do with the effect of the victim-impact statements. The board said the statements constituted significant new information. Mr. Costello contended the information was neither significant nor new and therefore was no justification for revoking his parole.

"Review of the record reveals that this is not a situation of rehashing or simply embellishing previously-provided victim statements," according to the majority ruling. "The victims' voices had been virtually unheard before October 2009."

Hadn't Sought Out Kids

No impact statements were presented at any of the four parole hearings, and a three-paragraph description in the pre-sentencing report was insufficient, the decision said. The four children, then ages 13 through 22, were not interviewed for the report, and no family member addressed the court at sentencing, the decision said. On that basis, the judges agreed with the board that the impact statements constituted significant new information.

Justice Spain, however, had additional criticism. "The troubling practice followed here of failing to notify a deceased victim's family of an inmate's appearance before the [Parole Board], and of foregoing providing victim-impact statements until parole has been granted after a hearing, subverts the entire process," he wrote.

"Courts should be loath to condone what could become a trend in the parole process in which certain victim-impact statements are held back until after a decision to grant parole is made, forcing the board to confront unabashed media frenzy, public pressure and familial outrage, and to then entertain newlydrafted but belated victim-impact statements aimed at undoing considered board decisions..."