By Mary Malloy
, which will allow Zuniga to be resentenced, possibly reducing his current 70-year jail term.
In an appeal by the defendent from a judgment of the County Court, Nassau County, handed down on August 16, 2005, convicting him of murder in the second degree (two counts), attempted robbery in the first degree (two counts), and robbery in the first degree (four counts), the court documents state that the sentences imposed be vacated and that Zuniga be resentenced before a different judge because it was improper for the court, upon the defendant's decision to reject a plea offer, to state that it would impose consecutive terms of imprisonment if the defendant were convicted of all charges after a trial.
"There is not and cannot be any fair system of justice which would permit the presiding judge or justice to predetermine the discretionary sentence that would be imposed if an accused person exercises his right to trial and is found guilty," the document states.
Zuniga was sentenced in August 2005 after having been found guilty of the crime in July of that year. He received one of the stiffest sentences ever handed down in Nassau County, according to the district attorney's office: 70 years to life.
At that time, Zuniga was escorted into the courtroom of Judge Jerald S. Carter in Nassau County's Supreme Court and less than 10 minutes later was read his sentence in the murder of Battaglia. Assistant District Attorney Michael Walsh addressed the judge and asked for the maximum sentence allowable by law. "Your honor, for two years you have conducted hearings and sat in on a trial," he said. "You know the impact this case has had on Caryn Battaglia, the community and Nassau County. Two children lost their father, Caryn Battaglia lost her husband ... and she had to relive it all over again in court."
Zuniga, Omar Delarosa, 19, Janny Paez, 21, Fernando Moronta, 21, and Marina Musso, 22, all of Freeport, went on a robbery spree in September 2003. In their wake, they left behind victims in Long Beach, Island Park and Rockville Centre, as well as Battaglia. Caryn Battaglia found her husband at the back door of their home, shot, stabbed and badly beaten, the key to the door in his hand.
According to court testimony, Musso waited down the block in her silver Nissan X-terra on the night of Sept. 18 while the other four approached Battaglia as he walked home from the Lynbrook LIRR station. When they attempted to rob him, Battaglia fought back. In the struggle, Delarosa stabbed Battaglia and Zuniga shot him. The five Freeport friends, whom Carter referred to as "a wolfpack preying on people," were arrested in February 2004.
Zuniga refused the offer of a reduced sentence for his guilty plea and, professing his innocence, opted for a trial. As part of the plea bargain, Moronta and Musso testified against Zuniga. With his friends on the witness stand providing damaging testimony, Zuniga was found guilty.
"Please punish Nelson Zuniga. Please keep him away from us," Caren Battaglia wrote at the sentencing trial.
"I'm going to grant that wish," Carter responded. He imposed the 70 years-to-life sentence for second-degree murder, two counts of first-degree attempted robbery and four counts of first-degree robbery.
Carter closed by telling Zuniga, who listened with a neutral expression, As Renfroe left the court building, he said over his shoulder, "You know there will be an appeal."
"I will be asking for a tough sentence that is consistent with the absolutely brutal facts of this case," said Nassau County District Attorney Kathleen Rice. "Judge Carter's original sentence accurately reflected the severity of the crime and we are looking forward to asking Judge Sullivan for an equally tough sentence the second time around."
Zuniga could be resentenced anywhere from 15 years to life, to 75 years to life.
Karenlyn Barone contributed to this story. Comments about this story? MMalloy@liherald.com or (516) 569-4000 ext. 202.
