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ALBANY � A jury in Albany has acquitted a man of homicide charges after the prosecution changed its theory of the case. Tyrone Cole, 30, of Albany, was tried twice in connection with the death of cocaine addict Steven Panza. Mr. Panza died on Sept. 20, 2000, after an encounter with the defendant. The key issue was the cause of death. At his first trial, Mr. Cole was acquitted of all the charges in the original indictment, including second-degree murder, first-degree manslaughter and second-degree manslaughter. Prosecutors alleged that Mr. Cole strangled the victim by grabbing him around the neck and holding him until he ceased struggling. During that trial, the prosecution maintained that Mr. Panza’s death resulted from “asphyxia due to neck compression,” while the defense expert attributed the death to cocaine-induced arrhythmia. The prosecution’s medical expert said she was unable to determine the cause of neck compression but concluded, apparently on the strength of an eyewitness’ testimony, that the defendant was choked. During trial, however, the testimony of the eyewitness was stricken after a prospective juror reported seeing the witness at an Al-Anon meeting just hours after his appearance in court. The prospective juror said the witness confessed to everyone present at the meeting that he had perjured himself. Mr. Cole was acquitted of murder and manslaughter charges, but the jury deadlocked on a lesser included charge of criminally negligent homicide. For the second trial, the prosecution changed its theory. Instead of maintaining that Mr. Cole choked the victim with his hand, prosecutors claimed the defendant strangled the decedent by placing his arm around the victim’s neck. The prosecution also brought, for the first time, drug charges that had never been part of the original indictment. Neither the prosecution witness, who ultimately admitted she could not issue an opinion on the cause of the victim’s neck compression, nor the defense witness, who affirmatively attributed the death to cocaine toxicity, appeared before the grand jury. Assistant Public Defender Raymond A. Kelly Jr. moved before Albany Supreme Court Justice Joseph C. Teresi to dismiss the counts and bar a retrial on the grounds of constitutional collateral estoppel. Mr. Kelly maintained that the drug counts could not stand since they arose from the same criminal transaction as the charges on which the defendant was acquitted. He also sought dismissal of the homicide counts, arguing that the prosecution could not change its theory once an acquittal had been rendered. Justice Teresi dismissed the drug charges, but not the homicide count, and the Appellate Division, Third Department, affirmed in People v. Tyrone Cole and Tyrone Cole v. Joseph Teresi, 14428/93130. Third Department Justice Thomas E. Mercure, writing for the unanimous court, said the first trial verdict did not necessarily establish the cause of death, so collateral estoppel or issue preclusion did not apply. The matter was recently retried before Justice Teresi, ending in an acquittal. Assistant District Attorney David Rossi prosecuted the case.

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