Observation key for Chester Attorney

(adapted from The New York Law Journal, North Suburban Edition 12/18/00)

By Marni Halasa
New York Law Journal (North Suburban Edition)

Benjamin Ostrer Is Steadily Building a Reputation as Expert in DNA.

CHESTER -Orange County attorney Benjamin Ostrer believes that much of the skill he has acquired as a lawyer has come from simple observation.

"You learn a lot by watching," reflected Mr. Ostrer, who recalled watching Alan Dershowitz and F. Lee Bailey try cases in Foley Square during the mid-1970s when he was a law student at New York Law "When you see how someone dissects an issue, it helps you understand what works and what doesn't"

Mr. Ostrer, a relative newcomer to the criminal defense bar in Orange County, has not even minded taking the second-seat role to other north suburban attorneys, such as Michael H. Sussman of Goshen, William Tendy of Poughkeepsie and Joseph P. Brown of Goshen. He said that observing other lawyers has helped him to learn litigation strategies.

The experience appears to have paid off. In May, as lead attorney, Mr. Ostrer won People v. Maragh in front of the Court of Appeals, which declared the trial of Middletown defendant Michael Maragh had been tainted because two nurses on the jury offered their expert opinions that were not part of the case's evidence. At trial, Mr. Maragh had been convicted of criminally negligent homicide after his girlfriend was found dead.

Mr. Ostrer called "serendipitous" the chain of events that led the case up to the state's high court. A newspaper article quoting a juror's biased statement tipped Mr. Ostrer to possible jury misconduct, the trial court set aside the verdict, and the Appellate Division reversed. Upsetting the Appellate Division, the Court of Appeals on May 9 ordered a retrial, which Mr. Ostrer is scheduled to conduct next month before Orange County Court Judge Jeffrey G. Berry.

"When one of the reporters for the Middletown Times Herald Record quoted a statement by a juror that

The author of the Court's opinion, Associate Justice Joseph W. Bellacosa, recommended that trial judges modify their standard instructions to juries, "differentiating between ordinary and professional opinions of jurors, and directing that jurors may not use. their professional expertise to insert facts and evidence outside the record with respect to material issues into the deliberative process." Mr. Ostrer's most recent victory, teaming up with Mr. Tendy, came Nov. 20 in a successful defense of Ute Ceragioli, a pharmaceutical saleswoman from Newburgh who was charged with trying to kill her husband for his $125,000 life insurance policy by administering a lethal injection of Mivacron when he was in The Cornwall Hospital in August.

Messrs. Tendy and Ostrer also defended former Manhattan District Attorney Paul Harnisch, who was cleared of responsibility in the death of Edward Quirk last April because he was found to be insane at the time of the auto- mobile accident.

In Mr. Ostrer's first homicide case, in April 1997, he succeeded in convincing a grand jury that Thomas Browne of Wallkill was defending himself when he killed Karl Ritter, the son of Appellate Division Justice David Ritter, with a single punch in a bar fight.

Such victories have burnished a reputation for Mr. Ostrer, a former farmer who raised race horses on a farm in Chester for 12 years after law school before he became a full-time lawyer in 1989, as a respected criminal defense lawyer in the community -so much, In fact, that he was the first person telephoned by Mr. Harnisch when he was initially arrested. Ironically, Mr. Harnisch had argued and won the Maragh case in the Appellate Division.

Colleagues said that Mr. Ostrer, although not the most famous criminal defender in the region, is steadily gaining respect among the local bar, particularly for the depth of his knowledge with respect to DNA evidence.

'Knows the Answers'

"He's an extremely prepared and knowledgeable lawyer, especially when it comes to forensic evidence," commented Peter X. Neuman of Newburgh, a past president of the American Board of Criminal Lawyers. "He is so well-prepared that his cross examination of experts is like direct examination of his own witness. He knows the answers."

Civil rights attorney Mr. Sussman, who Mr. Ostrer assisted as second seat in the Village of Kiryas Joel School District case, said that Mr. Ostrer has come a long way since his days as the Town Attorney of Chester in 1990. Mr. Sussman said a decade ago, he stated publicly that the town needed a new town attorney since Mr. Ostrer lacked the legal skills necessary for the job. Since then, however, Mr. Sussman said Mr. Ostrer has grown into a lawyer that should think of running for Orange County District Attorney next year.

Mr. Ostrer, who is a member of the Chester Republican Committee, said he has no current political aspirations, either for the bench or for the District Attorney job.

Research Critical

Local lawyers hailed Mr. Ostrer's acumen in cross-examining expert witnesses.

Mr. Tendy said that in the Ceragioli case, he relied on Mr. Ostrer's "knack for science" to help him understand the drug Mivacron, which was allegedly used in the murder.

"As a lawyer, you can't be as knowledgeable as an expert," Mr. Ostrer offered, "but you can test their hypotheses by doing research and explaining those weaknesses in a way that a jury and judge can understand."

In the recent Dominick Pendino murder case, Orange County prosecutors used a DNA match to prove Mr. Ostrer's client, Lawrence Weygant, was at the crime scene and had participated in the murder. Although Mr. Weygant ultimately was convicted of second-degree murder, Mr. Ostrer made a point of explaining to the jury that DNA evidence is not an exact science.

"Experts will say that a particular DNA chromosome can only be found in one of every seven million Caucasians, but then studies show that the same chromosome can also be found in a black tribe in South Africa. Courts need to recognize that there's a lot we don't know about DNA," he contended.

Aside from his criminal practice, Mr. Ostrer is involved in a civil litigation concerning local wetlands.

He is handling the appeal of Department of Environmental Conservation v. Chester Industrial Park Associates, in which the DEC slapped a $1 million fine on two developers after they filled the state-protected wetlands in 1996. The DEC also ordered the developers to restore the freshwater wetlands to its prior condition.

Mr. Ostrer, with Goshen lawyer James G. Sweeney, will argue that because the Chester-based landfill by definition is not a "wetland," the developers should not be required to restore the property.

A Varied Practice

In addition to criminal work, Mr. Ostrer's firm, which includes two associates, also handles civil rights, real estate and divorce cases. Mr. Ostrer could not estimate how much of his practice is pro bono, but said that he is doing something pro bono every day.

"Getting your name in the papers might make it appear you have a certain practice, but most lawyers out here in the suburbs are generalists. it's interesting work because you never know what's right around the corner," he suggested.

Mr. Ostrer is also still the Town Attorney for the Town of Chester, Village Attorney for the Village of Harriman and Village Attorney for the Village of Warwick.