ALBANY, N.Y. -- Defense attorney Terence Kindlon said, "The damage to her brain and eyes and face and skull is so significant, she would have been incapable of comprehending what she had seen."

It was a brutal ax attack in 2004, leaving Christopher Porco's father dead and his mother disfigured. He was convicted of the crime in 2006, but his attorney has filed an appeal years in the making, arguing that conviction - which gave him 50 years to life - was a mistake.

"She was there, but the memory wasn't there," said Kindlon.

In the 113-page appeal, defense attorney Terence Kindlon argues testimony about Joan Porco allegedly nodding her head when police initially asked if Christopher had attacked her should never have been allowed in because she lost her memory of the incident and couldn't be properly questioned about it at trial.

"She was as unavailable to be cross-examined as if she were dead," said Kindlon. "We feel the judge ruled incorrectly when he allowed the prosecution to use that evidence at trial."

Kindlon also argues the jury heard prejudicial evidence when prosecutors discussed a prior burglary at the Porco residence.

"We felt that that testimony is testimony of the sort that suggests he has a propensity to commit a crime," said Kindlon. "And in the American court you can't introduce propensity evidence. It's simply against the rules."

"It's not prejudicial because it shows you who did it," said Christopher Horn, special counsel to the district attorney. "He faked the burglary the first time in very similar ways to how he did it the second time, the cutting of the screen..."

But Christopher Horn, handling the appeal for the District Attorney's Office, said the prior bad act reveals a pattern and that the head nod was not crucial to the case. This, as the appeal also claims prosecutors used a taped interrogation of Porco to gather evidence used at trial, even though the interrogation wasn't allowed in.

Kindlon said, "They sort of backed in all that evidence anyway. They sort of got it to the jury anyway."

"He's saying the statement indicates his client is not guilty," said Horn. "And at the same time he's claiming we got all this great evidence from the tape that shows he was guilty."

Now the District Attorney's Office has several months to write their response. Then oral arguments take place and the court has about two months to decide whether Christopher Porco gets a new trial. All of this could end up taking place as late as the fall.