Crime Evidence doesn't match up claims lawyer for NJ man in murder case

19:06  11 september  2017
19:06  11 september  2017 Source:   New York Daily News

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This image obtained by the New York Daily News shows Max Gemma leaving the leaving the luxury Upper East Side building where Joseph Comunale was brutally knifed and beaten. - Alec Tabak/for New York Daily News © Provided by New York Daily News This image obtained by the New York Daily News shows Max Gemma leaving the leaving the luxury Upper East Side building where Joseph Comunale was brutally knifed and beaten. - Alec Tabak/for New York Daily News A man accused of covering up a murder was not covered up himself in a long-sleeved T-shirt as police stated — and his lawyer says that means he was indicted on flawed evidence.

Max Gemma, 29, of Jersey City, was seen on surveillance video wearing a red short-sleeved T-shirt as he left the luxury Upper East Side building where Joseph Comunale, 26, of Stamford, Conn., was last seen last fall.

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James Rackover, 26, and Lawrence (Larry) Dilione, 29, who was Gemma’s roommate, are charged in the Nov. 13 killing of Comunale, a Hofstra University graduate who was knifed and beaten after a house party.

Lead detective Yeoman Castro “swore that he personally viewed surveillance footage from Nov. 13, 2016, showing Gemma leaving 418 E. 59th Street in ‘a red long-sleeved t-shirt,’ ” according to papers filed in Manhattan Supreme Court.

Castro’s apparent error was memorialized in a search warrant affidavit seeking access to the apartment of Jeffrey Rackover, the celebrity jeweler and “surrogate father” to the younger Rackover, who lived in apartment 4C of the Grand Sutton, where Comunale was last seen. The elder Rackover’s home is on the 32nd floor of the same building.

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A surveillance photo Gemma’s lawyer, Mark Bederow, attached to the filing suggests Castro didn’t check the video that shows Gemma wearing a ruby red, short-sleeved, crew neck T.

Comunale’s burned and mangled body was dumped in a shallow grave in Oceanport, N.J., where Gemma and Dilione grew up, days after his family reported him missing.

Authorities say Gemma assisted in the cleanup effort and lied to cops about what he knew.

Police and prosecutor accounts surrounding postmurder dealings with Gemma are riddled with mistakes and outright misinformation, Bederow said in his filing.

Bederow has also argued that the grand jury that indicted Gemma was likely presented with the wrong date — Nov. 14 instead of Nov. 15 — with respect to one of his client’s counts of hindering prosecution.

The attorney argued that’s key because the conversation with Detective Jeffrey Ford occurred on Nov. 15 — after the murder suspects were already in custody and when it then would have been too late for Gemma to interfere.

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The law enforcement mishap, supported by cell phone records, instead interferes with Gemma’s “absolute defense” to the charge, Bederow said.

Max Gemma is arraigned in State Supreme Court on December 6, 2016 in New York. - Alec Tabak/for New York Daily News © Provided by New York Daily News Max Gemma is arraigned in State Supreme Court on December 6, 2016 in New York. - Alec Tabak/for New York Daily News

Gemma and the homicide suspects are due in court Tuesday for a pretrial conference.

Prosecutors have not yet responded to Bederow’s claims.

Comunale appears to have been killed in a dispute over cigarettes. Dilione, in a now-contested statement to police, said Comunale was beaten unconscious after a night of cocaine and boozing, then viciously pummeled and kicked while helpless.

Dilione’s attorney, Michael Pappa, says his client’s Miranda rights were violated. Dilione had already lawyered up, Pappa said, when cops kept him stewing and chatting for two days at a precinct stationhouse.

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