Jury set to deliberate in MacDonald Avenue break-in assault trial

Identification is the key issue at the trial of Zachary Torcaso and Dereck Maione, jurors were told Tuesday when the lawyers made their closing arguments.

"The weakest part of the Crown's case is the identification of the accused as being the perpetrators of the offences," that occurred at a MacDonald Avenue home on March 15, 2014, Torcaso's lawyer Eric McCooeye maintained.

The Crown is relying on "in dock" identification (when a witness points out the defendant in the courtroom as being the person they saw at the scene of the crime), he said.

"This type of identification is almost useless,"  McCooeye said, as he urged the jury to find his client not guilty of the charges he faces.

"The evidence of identification here is very frail," said defence counsel Michael Bennett, calling for Maione's acquittal on his charges. 

He suggested it is "very weak evidence" when a witness points to a person in the court to identify someone.

Torcaso has pleaded not guilty to two counts of assault, and single counts of break and enter to commit the indictable offence of mischief and threatening death.

Maione entered not guilty pleas to break and enter to commit an indictable offence, possession of a dangerous weapon (a knife) and assault while carrying a weapon.

During the trial, the jury of six women and six men heard testimony from Crown witnesses, who testified they were at the home in the early morning hours when the incident occurred.

Ryan Gridzak, two of his friends and a young woman, who was involved in an on-and-off-again relationship with Torcaso, had returned to Gridzak's parents' home to play beer pong after drinking at a downtown bar, the court heard.

While there, the woman made plans with Torcaso to pick her up and he arrived at the residence with two other men about 10 minutes later.

Gridzak testified that Torcaso, whom he didn't know, broke down the dead-bolted front door and attacked him, punching him in the face and knocking him backwards into a closet door.

Just after that, Maione, with a knife clutched in his fist, cornered another man, Adam Pettenuzzo, in the kitchen where Pettenuzzo eventually talked him into leaving, the court heard as part of the Crown's case.

Police arrested Torcaso two hours later and seized his jacket and pants after an officer noticed what appeared to be blood on them.

Maione was arrested some time later after Pettenuzzo did a Facebook search, found he was a friend of Torcaso's and contacted police, the court heard.

Prosecutor David Didiodato argued that the pair should be found guilty of all the charges.

Gridzak identified Torcaso as the first person who entered the home and said when he asked the man who he was, he replied "I'm Zach, f----r."

Nadia Crowe also testified Torcaso, who was no stranger to her as she had dated him on and off for three years, was that person, the assistant Crown attorney said.

Didiodato referred to the testimony of a forensic science expert, who examined a jacket police seized from Torcaso and compared the blood on it to Gridzak's DNA.

"The astronomical probability" that the blood didn't belong to anyone else, clearly demonstrates it's his blood, he said.

The Crown reminded jurors that Michael Bissonnette, of the Centre for Forsencic Sciences Northern Laboratory in Sault Ste. Marie, indicated that the odds that the blood wasn't Gridzak's blood was one in 16 quintillion.

There is "overwhelming evidence" that Torcaso entered the home and punched Gridzak in the face, Didiodato said.

McCooeye countered that there was no evidence about the amount of the blood on the jacket and how it got there.

"The Crown tells you the jacket shows he was fighting with Gridzak," but one of the witnesses in the house described a black leather jacket with an orange hoodie and Gridzak said his attacker was wearing a blue-striped sweater or shirt, McCooeye said.

The jacket seized from Torcaso was a blue and gold jacket with "Brewers" on the front of it.

McCooeye attacked the credibility of Gridzak and other Crown witnesses and the reliability of their evidence.

He pointed to what he called a "major inconsistency" in Gridzak's evidence about one of the men saying "give me everything that you've got or I'll kill you."

At the trial, Gridzak said that person was Torcaso, but during the preliminary hearing he indicated it was the guy with the knife and his client didn't have the knife, McCooeye stated.

"There is so striking a difference that you should be saying to yourself I can't trust that evidence," he told jurors.

Bennett said he is "very doubtful" of both Gridzak and Crowe's evidence, and suggested the inconsistencies in their testimony weren't minor.

He reminded jurors that his client had pleaded not guilty to the break and enter charge at the beginning of the trial, but guilty to the lesser and included offence of unlawfully being in a dwelling house (which was not accepted by the Crown).

He questioned why, if you had brought a knife to a place to rob it and the evidence was so weak, you would stand up and say you were there.

Bennett suggested that his client picked up the knife in the kitchen after he heard the altercation and subsequently found himself barricaded in the house after Torcaso was chased out of the residence.

He noted that Pettenuzzo testified that he had convinced others in the house to open the door to let Maione out and also said Maione had assisted in de-escalating the situation.

"Remember Pettenuzzo said he didn't want to make an issue of the knife because he wanted him (Maione) to feel safe."

Didiodato argued that Pettenuzzo had specifically identified Maione as the person in the house with Torcaso.

They had a conversation in the kitchen and he was "in a good position to observe and remember his face."

While Maione had pleaded guilty, at the beginning of the trial, to unlawfully being in the house, it was a statement, not a formal admission, the prosecutor said, adding there was compelling evidence he was in the home.

"He brought a knife with him to a break-in — an extremely dangerous act."

Superior Court Justice Michael Varpio will give his instructions on the law to the jury today.