by Mike Schnitzel
Prosecutor Robert Biancavilla, who was surprised by the move, told Ort that he would need another week to prepare for the trial, which is now scheduled to begin Monday at 9:30 a.m. at the Supreme Court in Mineola.
Kogut, 41, was convicted in 1986, along with John Restivo and Dennis Halstead, of raping and murdering 16-year-old Lynbrook resident Theresa Fusco. However, DNA in semen found on Fusco's body in the fall of 2002 excluded the three men and pointed, instead, to another, unknown suspect.
Kogut, Restivo and Halstead were released from prison on June 11, 2003, after Nassau County District Attorney Denis Dillon agreed with the defense team's request that the convictions be overturned. All three men had served 17 years in prison for the crime.
Dillon is retrying Kogut's case based on the strength of videotaped and written confessions obtained from Kogut at the time of his arrest, as well as other evidence found by Dillon's office, according to Biancavilla.
In his statement, given after his arrest, Kogut said that Fusco was walking along Merrick Road in Lynbrook, near the Hot Skates Roller Rink, the night of Dec. 10, 1984. Kogut, Restivo and Halstead forced her into their van, and Halstead and Restivo raped her, Kogut said. According to the confession, when Fusco threatened to tell, Kogut strangled her, and they dumped her nude body nearby.
Kogut's defense contends that his confession was obtained after an 18-hour interrogation during which he was allowed no food, water or phone calls. Ort ruled on Sept. 16 that an expert on false confessions would be allowed to testify during Kogut's retrial. That expert is still expected to testify.
Ort also ruled that an expert on hair banding - who can determine whether a person was alive when a strand of hair was pulled out - would be allowed to testify at the retrial. Kogut's defense contends that two of Fusco's hair strands, which were found in Kogut's van, were planted by police after Fusco was already dead.
Restivo and Halstead are under indictment, but remain free, with the district attorney's office yet to determine whether either will be retried.
Calls to Kogut's attorney, Paul Casteleiro of Hoboken, N.J., were not returned.
