By Mike Schnitzel
Kogut is being retried for Fusco's rape and murder, a crime for which he, Dennis Halstead and John Restivo were convicted in 1986. All three served 17 years in prison before their convictions were overturned in 2003 based on new DNA evidence, which suggested that a fourth, unknown person had had sexual contact with Fusco. Halstead and Restivo remain free, but are under indictment.
Concetta Napoli, Fusco's mother, testified that she saw her daughter leave their home for work at around 6 p.m. on Nov. 10, 1984, and that Theresa planned to stop at the home of her best friend, Lisa Kaplan, afterward. According to Napoli, that night she played board games with a friend from work and her son Michael, and after her son went to bed, she and her friend stayed up chatting and drinking coffee.
Napoli said that she went to bed when her daughter was still not home, and that when she awoke and went to check on her, Theresa was nowhere to be found.
Fusco, whose parents were divorced, was supposed to spend Sunday with her father in Queens, and she had begun packing before she left for work. Napoli discovered that her daughter's bed had not been slept in and her suitcase remained untouched. "When I realized she hadn't been home, I called Lisa to see if she was still there," Napoli said.
Kaplan told Napoli that her daughter had not shown up at Kaplan's house the night before. At that point, according to Napoli, she and Kaplan began calling Fusco's other friends to try and determine her whereabouts.
When asked by prosecutor Robert Biancavilla, of the Nassau County district attorney's office, whether or not she saw her daughter alive again, Napoli replied, "No, I did not."
Napoli testified that to her knowledge, her daughter did not know Kogut, Halstead or Restivo, and that she was not the type of person who would get into the van of someone she did not know. She also testified that to her knowledge, her daughter was not sexually active.
Both of those statements were backed up by the prosecution's next witness, Lisa Johnson (formerly Kaplan), Fusco's best friend. "Theresa was a virgin as far as I, or any of our friends, knew," she said.
Biancavilla suggested in his opening statement last week that the fourth, unknown sample of DNA found on Fusco was from a partner she had consensual sex with earlier that day.
Kogut's defense attorney, Paul Casteleiro, of Hoboken, N.J., dismissed that idea during his opening argument, claiming that the prosecution was trying to "explain the unexplainable" and fix the evidence around its version of events. "Twenty years later, Theresa Fusco is not a virgin because it doesn't explain the state's case," Casteleiro said.
On Sept. 26, Kogut waived his right to a jury trial, opting instead to have the case decided by Acting State Supreme Court Justice Victor Ort, who had ruled in the defense's favor on several matters at pretrial hearings.
The case continued as the Herald went to press on Wednesday.
Comments about this story? MSchnitzel@liherald.com or (516) 569-4000 ext. 265
