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Charges dropped against man accused of deadly shove during fight over face mask in 2020

The Erie County District Attorney's office has filed a notice of appeal.

BUFFALO, N.Y. — Barry Covert, the attorney representing a West Seneca man indicted on charges of criminally negligent homicide in connection with an argument over a face mask, says the indictment against his client has been dismissed.

Donald Lewinski, 65, previously pleaded not guilty to a charge involving the death of an elderly Marine in September 2020

Erie County District Attorney John Flynn said Lewinski and the victim, Rocco Sapienza, 80, got into an argument over Lewinski not wearing a face mask inside a Southwestern Boulevard bar in West Seneca.

The district attorney said the men also had words over other issues, including a girl, but it was the dispute over mask wearing that fueled the situation and that's when Lewinski allegedly shoved Sapienza.

Judge Sheila DiTullio's court memorandum decision and order, dated October 4, 2022 cited examples of the victim's "very abrasive" behavior prior to the deadly encounter:

"According to the evidence before the grand jury, the victim, Rocco Sapienza, had engaged defendant in verbal altercations throughout the day, taunting and chastising him for failing to wear a mask in contravention of COVID-19 protocols then in place. These verbal exchanges, marked by repeated threats that the victim would kill defendant, culminated in a physical confrontation during which defendant administered a single shove that sent Sapienza to the floor where he struck his head, lost consciousness, and ultimately died."

"In addition to the victim's repeated threats made in the hours immediately proceeding the fatal incident, review of the grand jury minutes and the video footage of the event reveal that it was the victim, not defendant, who left his seat at the bar, walked directly over to defendant, positioned himself within inches of defendant's face, pointed at him and continued taunting and berating him. And contrary to the People's contention, defendant could hardly retreat - - the video footage confirms that defendant was corralled by the bar, the bar owner, other patrons seated at a table, and the victim, who was positioned at an angle in front of defendant, thus hemming him in with nowhere to go. The People's claim that defendant had both a duty and an ability to retreat thus is unpersuasive."

The Erie County District Attorney's office has filed a notice of appeal.

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