Killer to go free and can't be re-tried

SLOAN, N.Y. (WIVB) - He was supposed to spend years in prison for the death of another man a decade ago. But Alan Tomaski will walk out of prison any day now after serving just 17 months of his sentence.

Despite being convicted of manslaughter, Tomaski will only serve a fraction of the 25 years behind bars he was sentenced to last March.

Former Erie County DA Frank Clark said, "Technically, because of the violation of the statute of limitations, he can no longer be tried again and he in effect got away with manslaughter."

An appeals court threw out the conviction and ruled Tomaski should be set free. The facts of the case remain the same. Tomaski was convicted of killing 23-year-old Samuel Ciapa in 2002 and dumping his body in the Sloan Reservoir.

But there was one small, but crucial, detail that no one noticed until Tomaski was sent to prison. There's a statute of limitations on that manslaughter charge - five years - and it had expired when Tomaski was convicted.

"Something like this probably doesn't happen once in 50,000 cases. But it happened here and all of the parties missed it," Clark said.

Tomaski's attorney, Andrew LoTempio, said, "There was an oversight on our part in not objecting on statute of limitations grounds when the district attorney requested that charge down. And I think it's appropriate to say Mr. [James] Bargnesi, [the prosecuting attorney], made the same mistake. However, the mistake made by the prosecution is a lot more costly."

Now Tomaski's attorney says his client's freedom is not far off.

"The guy's in jail and doesn't belong in there. The papers have all been filed with the Department of Corrections and we're hoping he's out as early as today," said LoTempio.

The Erie County District Attorney's Office did not return News 4's phone call requesting comment.

UPDATE: Tomaski was set free on Friday, July 13th.