2006-10-13

when being a smart ass can kill you @ 12:56 p.m.

First-Degree Murder for Actress�s Killer

By ANEMONA HARTOCOLLIS
The leader of a band of youthful muggers was convicted yesterday of murdering an actress and playwright after she challenged him during a robbery on the Lower East Side last year.

Rudy Fleming, now 21, was convicted of fatally shooting Nicole duFresne, 28, after she resisted the robbery by defiantly shouting, �What are you going to do, shoot us?�

As the jury in State Supreme Court in Manhattan declared Mr. Fleming guilty on all nine counts against him, including first-degree murder, robbery and criminal possession of a weapon, Ms. duFresne�s mother gasped, and her father covered his face with a handkerchief and cried.

They declined to speak to reporters afterward, but asked the prosecutor, Robert Hettleman, to distribute a written statement in which they defended their daughter�s actions on the night she died.

They noted that she stood up to Mr. Fleming only after he pistol-whipped her fianc� and yanked away her best friend�s purse.

�She confronted the man with the gun, pleading for the confrontation to end,� the statement, signed by Ms. duFresne�s mother, father and brother, said.

�The response to her request was a bullet to her heart. If a man had acted in the same manner, he may have been proclaimed a hero. Nicole died that night defending those she loved. She is our hero.�

The family conceded that they wished she had acted differently, because she might still be alive. �But,� they said, �she was true to who she was � a brave woman in every aspect of life, sometimes afraid but always brave.�

By finding Mr. Fleming guilty of first-degree murder, the jury categorically rejected the defense contention that his .357 Magnum discharged accidentally, perhaps as he slipped in mounds of plowed snow when Ms. duFresne confronted him. His lawyer, Anthony Ricco, provided no corroboration, either through testimony or physical evidence, for this theory. Mr. Fleming faces a minimum of 20 years to life in prison and a maximum of life without parole.

The jurors declined to comment after the verdict, heeding the advice of the trial judge, Justice Daniel P. Fitzgerald, who cautioned them against speaking to reporters, implying that talking about their deliberations could lead to an overturning of the verdict.

The jury never saw Mr. Fleming, who chose not to attend his own trial. His lawyers said provisions had been made for him to monitor the proceedings in another room. In pretrial hearings, Mr. Fleming tried in vain to convince the judge that he was hallucinating about giant marshmallows and was mentally incompetent.

The physical evidence against him was substantial. The police recovered the murder weapon, a wood-handled .357 Magnum with one bullet missing and five still in the chambers, hidden under a bed in the apartment where he had been staying. They also found the scarf and sweatpants he was wearing that night, which witnesses had described.

Videotapes taken by store security cameras showed him and six friends and accomplices walking in the vicinity of Rivington and Clinton Streets, where Ms. duFresne was shot, around the time of the murder.

Friends have described Ms. duFresne, who was from Wayzata, Minn., as a gutsy, ambitious woman who had shown strength and defiance in the face of adversity in the past. She turned her rape in a parking lot while she was at Emerson College in Boston into the inspiration for a play, �Burning Cage,� and a psychological thriller, �Matter.� She produced her play in Seattle before moving in 2002 to New York, where she was volunteering at LAByrinth Theater Company while bartending to pay her bills.

Ms. duFresne, her fianc�, Jeffrey Sparks, and two friends, Mary Jane Gibson and Scott Nath, were on the way home from a night of drinking and playing pinball at Max Fish, a nightclub on Ludlow Street, about 3 a.m. on Jan. 27, 2005, when they were confronted by a group of young people, with Mr. Fleming in the lead, according to testimony at the trial.

Mr. Fleming muttered a slurred demand for money, struck Mr. Sparks in the eye with a gun, leaving him momentarily dazed, then yanked away Ms. Gibson�s purse, throwing it to two accomplices, according to the testimony.

Enraged by the attacks, according to the testimony, Ms. duFresne turned on Mr. Fleming, shouting, �What are you going to do, shoot us?� and he reacted by shooting her once in the chest from a distance of less than an arm�s length.

Mr. Fleming had been convicted of possessing a semiautomatic handgun in 2002, and spent two years in prison, though the judge did not allow the jury to hear about that. He was on parole at the time of the murder.

Colin Moynihan contributed reporting.