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Prosecutors seek to reinstate charges in Erie homicide, shooting cases

| Saturday, Feb. 16, 2013, 5:57 p.m.

Erie County prosecutors are seeking to have criminal charges reinstated in a pair of recent high-profile cases.

Assistant district attorneys cited what they claimed were “errors of law” made by the district judges who heard the cases during recent preliminary hearings in seeking permission to refile charges against Jeff A. Selby, 51, in the death of his girlfriend, Mary Smith, 51, on Erie's west side in late November; and against Kendell C. Foster, 41, in the shooting of Robert Gore, 23, in an east Erie apartment in December.

An Erie County judge had not ruled on the motions as of Friday afternoon.

Erie County Assistant District Attorney Erin Connelly, in her Feb. 7 motion to refile charges against Selby, said the prosecution had presented sufficient evidence to have a charge of criminal homicide bound over to the Court of Common Pleas.

The charge was dismissed by Erie 3rd Ward District Judge Tom Carney during Selby's preliminary hearing on Jan. 24. All of the other charges that Erie police filed against Selby, including aggravated assault and unlawful restraint, were held for trial.

Smith died in St. Vincent Health Center three days after police found her unconscious, with numerous injuries, in her West 17th Street apartment on Nov. 24.

Selby's lawyer, Gene Placidi, argued at the hearing that Erie County Coroner Lyell Cook had never determined the manner of Smith's death. Cook testified at the hearing that the manner of death was undetermined, although natural causes were ruled out.

Connelly also asked the court in her motion to assign a different district judge to hear the matter if prosecutors are granted permission to refile the charges, because Carney had said after the preliminary hearing that he would recuse himself from the case if the homicide charge were refiled.

Assistant District Attorney Matthew Cullen filed a motion on Thursday asking a county judge for permission to reinstate criminal charges, including criminal attempt at criminal homicide, that Erie police had filed against Foster in the shooting of Gore in a Parade Street apartment on Dec. 20.

Erie 5th Ward District Judge Joseph Lefaiver dismissed the charges after Foster's Feb. 6 preliminary hearing.

Foster's lawyer, Erie County Assistant Public Defender Stephen Lagner, had argued that prosecutors provided no testimony or evidence at the hearing that connected Foster to shooting Gore in the Parade Street apartment.

Charges against a second defendant, Dimis Colon-Cruz, 32, were withdrawn before the Feb. 6 hearing because of the absence of a witness in the case.

Cullen also asked the court in his motion to assign the case to a different district judge if the charges against Foster were reinstated.

No action was taken on the motions.

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