WOMAN'S ATTORNEYS WANT WOLFGANG OFF THE CASE

Author: MATT GRYTA - News Staff Reporter

Attorneys for Jessica Vitale-Elgie, a cancer-stricken Buffalo special-education teacher, filed motions Wednesday asking State Supreme Court Justice Penny M. Wolfgang to recuse herself from the pending negligent-homicide trial because of her courtroom statements about the case.

Less than a week after Vitale-Elgie withdrew her guilty plea in the death of her 5-year-old adopted son, attorneys Michael S. Taheri and Peter J. Todoro Jr. said the judge's Feb. 6 statements about plans to send their client to state prison raise doubts about her ability to conduct a "fair trial."

Taheri and Todoro said they have to wait until Wolfgang returns to town next week to schedule a hearing at which they will ask her to withdraw, so judicial district administrators can reassign the case.

Dec. 2, Vitale-Elgie, 38, pleaded guilty to criminally negligent homicide in the death of her adopted Vietnamese son, Casey "C.J." Elgie, on Sept. 1, 2000, a day after he swallowed detergent solution while she was disciplining him.

Vitale-Elgie is under a doctor's care for bone cancer. She admitted in court two months ago that she failed to get immediate medical aid for her son after he became violently ill, but she did not further describe the fatal incident.

Last week, Donna Levin, Vitale-Elgie's estranged sister-in-law, told the news media that Vitale-Elgie's "very hostile" mistreatment of the boy made his life "so miserable."

Vitale-Elgie continues to have court-supervised visits with her adopted Korean daughter, Marissa, 8, and her 4-year-old biological twin sons, Jacob and Zachary.

The children live with her estranged husband, William.

Both she and her husband were found guilty of "neglectful conduct" in the boy's death. She was ordered to undergo a mental assessment and take parenting courses.

Currently suspended with pay, Vitale-Elgie taught in the Buffalo Public Schools from January 1987 until October 1997, when she left because of a high-risk pregnancy, her attorneys said.

Taheri confirmed that Wolfgang had warned him and Todoro prior to the scheduled Feb. 6 sentencing that she could not keep her commitment to a brief local jail term. Taheri said the judge's courtroom statements last week made it clear she is convinced the teacher "was the cause of" the boy's death.

If convicted after trial, Vitale-Elgie faces a sentence ranging from probation to four years in state prison. Last week, Wolfgang told her she had concluded she had to send her to state prison for one to three years.

e-mail: mgryta@buffnews.com