FIRST ON 13: Judge tosses indictment against deputy charged in Saratoga Springs shootout

A judge has thrown out the indictment against the Glens Falls man accused of attempted murder in a shootout in downtown Saratoga Springs last November, citing that prosecutors made serious errors as part of a “demonstrated pattern of unfairness.”

Vito Caselnova, an off-duty Rutland County Sheriff’s deputy, was arrested after getting into a fight with a group of Utica men at about 3 a.m. on Broadway on Nov. 20. Caselnova and another man, Alex Colon, fired shots at each other. Officers arrived and after Caselnova refused repeated commands to drop his weapon, they shot him.

In a 30-page ruling, Judge Jim Murphy said the district attorney’s presentation to the grand jury was “so flawed” and “not fair in any sense of the word.”

He cited as an example the fact that Colon was only charged with misdemeanor attempted assault – despite Caselnova’s serious gunshot wounds.

In their motions, Caselnova attorneys had claimed that their client was a victim of gang assault. He was punched and attacked by at least three men before he pulled his gun.

Caselnova and his girlfriend, Cali Brown, testified before the grand jury that they heard one of the men from Utica said “get the girl,” which led them to believe that she was going to be kidnapped.

Murphy said prosecutors should have instructed the grand jury that Caselnova’s actions could have been justified when he opened fire because he believed he was preventing a violent felony, namely a kidnapping. 

In addition, Murphy wrote that the DA should have instructed the grand jury on the law as it relates to gang assault. At one point there were roughly 10 men against Caselnova.

“Those are the circumstances which resulted in Caselnova drawing his gun. … The evidence should not be viewed in a vacuum at the exact moment shots are fired without regard for what had transpired in the previous 50 seconds.”

Murphy went on to say that “it would not be unreasonable” for Caselnova to believe that his attackers were going to use deadly force against him.

In addition, Murphy agreed with the defense’s claim that Caselnova was treated unfairly before the grand jury.

Prosecutors allowed Colon to tell the jury that he’s a devoted family man who loves his kids, which Murphy said they shouldn’t have allowed that testimony.

In contrast, the ADA “approached Caselnova confrontationally throughout — pressing him on carrying a gun and how many drinks he had, but not doing the same to Colon, who at 0.136 (blood alcohol content) was slightly more intoxicated that Caselnova.”

Also, Colon testified that he was allowed to view a dashcam recording from an Uber of what happened that morning, but Caselnova was not allowed to see it.

In addition, Murphy said that Colon’s testimony went unchallenged despite inconsistencies.

“Despite not recalling that he even fired his gun, remarkably Colon knew for a fact that Caselnova shot first. The prosecutor did not inquire further into this inconsistency…”

In conclusion, Murphy wrote that the presentation of the case “sufficiently impaired the integrity of the proceedings so as to potentially prejudice, the ultimate decision reached by the grand jury and warrants dismissal of the indictment.”

Murphy dismissed the case without prejudice, meaning that the prosecution could bring it before a new grand jury.

Defense attorney Greg Teresi said he is pleased with the court’s ruling, but understands that the case be presented again.

“We’re grateful for the court for making a thorough decision, and examining all of our arguments, examining the voluminous transcripts and evidence and videos related to this case,” he said. “We stand ready to defend Vito Caselnova going forward.”

Saratoga County District Karen Heggen issued a statement responding to the decision, saying prosecutors can bring the case against Caselnova to a new grand jury.

“The court’s decision raised issues with the way the case was presented – it does not absolve Mr. Caselnova of any wrongdoing,” she wrote in a news release. “We will take our time to thoroughly review the court’s concerns and will move forward with the case.”