AUBURN - The indictment charging a state prisoner with killing a fellow Auburn Correctional Facility inmate in 2003 was dismissed in Cayuga County Court Tuesday because the prisoner did not have the opportunity to testify on his own behalf at the grand jury proceedings.

Virgil Owens, 37, had submitted a letter to the Cayuga County District Attorney's Office requesting to testify, but the notice was not submitted to the special prosecutor handling the case until after the prosecutor conducted the grand jury proceedings.

Owens was accused of killing Shane Hotmer at approximately 10 p.m. Sept. 6, 2003, in the prison recreation yard at ACF.

The special prosecutor - Steuben County District Attorney John Tunney - said he will bring the case to a grand jury again.

Judge Mark Fandrich gave Tunney 60 days to do so.

Owens was thrilled at the indictment's dismissal, his defense attorney Michael Bass said.

"Often times, it's a matter of principle for these guys. Even if you're spending the rest of your life in prison, you certainly don't want to be convicted of murder," Bass said.

"You don't want to be convicted of something you didn't do, even if its petit larceny.

Owens is serving a 100-year to life sentence for second-degree murder, first-degree robbery, third-degree criminal possession of a weapon and second-degree assault.

Also in court:

- Joseph Montesano, 31, of 92 1/2 VanAnden St., Auburn, was sentenced to two to four years in prison, but deemed eligible for parole supervision through the Willard Drug Treatment program, for a felony charge of fifth-degree criminal sale of a controlled substance.

Montesano admitted he sold two ecstasy pills Aug. 23, 2003, in exchange for $40.

Staff writer Amaris Elliott-Engel can be reached at 253-5311 ext. 282 or at amaris.elliot-engel@lee.net