Opinion
102187.
Decided January 7, 2008.
Fred Lichtmacher, Esq., APPEARANCES: For Claimant.
Andrew M. Cuomo, Attorney General, by: Michelle M. Walls, AAG, For Defendant.
This is the decision following the liability trial of the claim of John Vera brought under the Unjust Conviction and Imprisonment Act (§ 8-b of the Court of Claims Act). Mr. Vera had been convicted of his participation in the robbery of a family that owned a grocery store in Brooklyn.
The robbery covered two sites, Diana's Grocery and the owners' residence on South Third Street, also in Brooklyn. On Friday, January 6, 1994, some time after 11 p.m., two persons pushed their way into the South Third Street apartment of the Garcias. They threatened the family, which included Mr. and Mrs. Garcia and their two daughters, aged 9 and 14, to force Bernardo Garcia to give them the keys to the grocery and the safe they thought was at the store. At some point, at least one more member of the gang came into the apartment during the night of January 6 — January 7. There were other individuals who were part of the robbery gang at the grocery, and they used walkie-talkies to communicate.
On March 4, 1994, John Vera, who lived in the neighborhood, was arrested shortly after stopping into the Garcia store to buy a snack. He was the only individual who was tried for the crime; the others who were apprehended pled guilty. A jury found Vera guilty of six counts of robbery in the first degree, four counts of robbery in the second degree, five counts of burglary in the first degree and two counts of assault in the second degree (cl exh 4, ¶ 3; People v Vera, 235 AD2d 509, 653 NYS2d 360 (2nd Dept 1997)) .
On February 6, 1995, claimant was sentenced to terms of 6 to18 years on the first degree robbery and burglary counts; 5 to 15 years on the second degree robbery counts and 2 to 6 years on the assault counts — with all the time to run concurrently (cl exh 4, ¶ 3), and he was received soon thereafter into the custody of the State Department of Correctional Services.
Vera was released from the Arthur Kill Correctional Facility on January 27, 2000 on a writ of habeas corpus. On February 10, 2000, Justice Louis Marrero granted Vera's motion pursuant to paragraph (g) of CPL § 440.10.1 (the discovery of new evidence): the conviction was vacated and all charges against him dismissed (cl exhs 7 23).
Claimant's Case
John Vera has always maintained his innocence — that he was home on the night of the robbery. When claimant was arrested in the early evening of March 4, 1994, he said, "you've got the wrong guy" (cl exh 2). Detective William Soto, who made the arrest, testified that Vera had not tried to flee.
In January 1994, Vera was 20 years old, and had lived in the neighborhood for sixteen years in the house that his mother owned at 71½ Maujer Street. Upon his release from prison in 2000, he returned there to live. At the time of the robbery, claimant was working for Washington Inventory Services in Bayside, Queens as an inventory specialist with the responsibility of traveling to various stores and checking their merchandise levels. In January of 1994, Vera was working Monday through Friday with some weekend work. With a two-hour commute each way, he would leave for work at 4 a.m. and return in the evening around 8 or 8:30. Vera recalled that he started working part-time in late February or early March of that year.
The 8-b trial transcript spells "Maujer" phonetically; see page 2 of claimant's exhibit 7, which lists Vera's address.
The Garcias' grocery at 322 Union Avenue was a block or two away from Vera's residence. The day of the arrest, March 4, Vera had intended to get a haircut at a barbershop that was next door to the Garcias' grocery. Claimant walked into the store, bought a soda and a bag of potato chips, then went into the barbershop where "I got my spot." While waiting his turn, Vera crossed the street to where he had seen "some guys from the neighborhood that I know." That is where he was arrested.
Vera has two prior convictions, which defendant contends undercuts claimant's credibility as showing, per the formulation, that he puts his interests above those of society. See Morales v State of New York, 183 Misc 2d 839, 845-46, 705 NYS2d 176, 180 (Ct Cl 2000), affd 282 AD2d 245, 722 NYS2d 860 (1st Dept 2001).
Claimant had pled guilty to a misdemeanor involving lighting a firecracker that "blew up" on July 4 in 1993, and then for being part of a group that set fire to an abandoned car. With respect to the latter, Vera pled guilty on December 3, 1993 to attempted arson in the third degree, a class D felony, and was sentenced to probation on January 14, 1994 (cl exh 3). It seems odd that during the few weeks between pleading to arson and being sentenced for it, Vera would have taken part in the fairly complex Garcia robbery.
Norma Vera
Claimant's sister, Norma Vera, testified that in January of 1994, she lived with claimant on Maujer Street with her eight or nine-year old son, mother and one of her sisters. The Maujer Street residence is two stories; the witness' bedroom was on the second floor. There was one door out to the street that everyone used. Ms. Vera explained that the door was noisy, and she could hear if anyone left and then "easily see who's there." Her recollection was that John did not leave the house that night.
The witness explained that she remembered the comings and goings of her brother because her sister Betty had been married the previous weekend, and on Friday evening, Daniel Buduen, who subsequently married her sister Blanca, came over with photos of the wedding. Norma Vera testified that Mr. Buduen arrived at "around 9:45 [p.m.], and he stayed there for a very long time." Norma testified that she went up to the second floor to go to bed at about midnight or a little later.
The spelling of "Buduen" is taken from the criminal trial transcript, claimant's exhibit 29.
Antonio Cepeda
Antonio Cepeda took a plea in the Garcia robbery — attempted burglary in the third degree, which is a class E felony. Mr. Cepeda had a clear incentive for telling the truth about the robbery: he testified that he was facing considerable time and under the plea agreement, was sentenced to a term of one and a half to three years and served two years.
The witness explained that he knew all of the actors involved in the robbery, adding that they met later to split up the cash. He noted there may have been people who "gave us the crime," but he knew everyone on the scene, or at least what they looked like and their street names. At the 8-b trial, Cepeda was given a good look at John Vera, and testified that he did not know him at all.
Cepeda testified that he, Anthony Mann ("Freeze") and an individual he knew only as "J. Rock" (otherwise identified as Jay Perez) entered the Garcia residence. Mann, like Cepeda, was very dark-skinned and tall — -6' 2" or 6' 3." J. Rock was much shorter and relatively light-skinned. "It was five of us, if I recall." The other two that Cepeda named were Richie Rodriquez and "Red" — "That's Eddie Estrada."
Mr. Rodriquez entered a plea to one of the counts he was charged with in the Garcia robbery, attempted robbery in the second degree, a class D felony (cl ex 26, p. 3). However, one Edward Estrada took the stand in this trial and denied involvement in the Garcia robbery.
Cepeda initially said that his crew had "masks" on, but then explained that he meant some sort of covering: "everybody had their own stuff on," such as winter hats pulled down, a scarf worn up or a hood pulled very close. As for himself, "You [could] only see my eyes." In Cepeda's testimony, the only intruder who could have been John Vera was J. Rock. He said that J. Rock was wearing something to conceal his face, although he could not recall what it was.
On cross-examination, defendant's counsel pointed to the witness' subsequent drug conviction as generally undermining his credibility. Cepeda conceded he was not in the apartment the whole time, but there is nothing in his testimony to suggest that the perpetrator in question was someone that Cepeda was not familiar with.
Anthony Mann
Anthony Mann admitted his involvement in the Garcia robbery in two statements to the police on November 9 and 15 of 1999 and subsequently took a plea thereon. Mr. Mann did not testify in person here despite the assiduous efforts by claimant's counsel to secure his appearance.
Claimant's exhibit 14, tabs D E; claimant's exhibits 17 and 18 are the corresponding audiotapes.
See claimant's exhibits 24 and 25.
Mann's statements satisfy the requisites for use as a declaration against penal interest. People v Brensic, 70 NY2d 9, 517 NYS2d 120 (1987). I am unpersuaded by defendant's argument that using it to describe who else was (and was not) involved in the Garcia robbery is inadmissibly collateral. Such facts are sufficiently closely connected to the actions and potential criminal liability of Mann when he made the statements. See Prince, Richardson on Evidence (§ 8-413, 11th ed, 2005 Supp.); People v Johnson, 92 NY2d 976, 978, 683 NYS2d 754, 755 (1998); Basile v Huntington Utilities Fuel Corp., 60 AD2d 616, 400 NYS2d 150 (2nd Dept 1977).
The Court of Appeals, after Crawford v Washington, 541 US 36 (2004), barred the use of the plea allocution of a non-testifying accomplice against a criminal defendant. People v Hardy, 4 NY3d 192, 791 NYS2d 513 (2005). The use of the Mirandized statements of Mann in this civil action brought by a former criminal defendant is distinguishable.
Mann stated that, in all, eight persons were part of the robbery crew. He added to the five names Cepeda identified: the so-called mastermind, Jay (real name Albert Cintrone), whom he identified from a photo that the police showed him (NYSID number 6476169); a man named Jorge, who he recalled entered the apartment later; and a street lookout who's first name was Elvis. Former Kings County Assistant DA Karen Bennett testified that there was an individual involved in the crime that they were never able to identify: "I believe one referred to him as Eddie and one referred to him as Jorge or something along those lines."
Mann identified Cepeda from a photo (NYSID number 7131144), and said that Cepeda left the apartment with the keys to the Garcia grocery. At some point, J. Rock and Richie Rodriquez went up into the Garcias' apartment. He identified J. Rock as Jay Perez, NYSID number 7174677. He said that J. Rock was about 5' 8" tall and gave the same height for Jorge. Vera is 5' 3" (cl exh 7). Mann was shown a picture of Vera (NYSID number 7544681), and responded that he did not know him and that he was not involved in the Garcia robbery. He stated that "everybody had on masks and everything."
Mann's statements, while confirmatory of Cepeda's testimony that claimant was not part of the robbery crew, were weaker than Cepeda's. We did not, of course, have the benefit of evaluating in person the demeanor accompanying Mann's narrative, nor how it would stand up to cross-examination. Moreover, in his November 15 statement, Mann conceded that he had lied on the first day of his statements to the police when he said he waited on the street; on November 15, he stated that he was one of the first ones in the apartment and had, among other things, struck Mr. Garcia several times.
Defendant's Case
Defendant State of New York maintains that Vera has not proven his innocence by clear and convincing evidence. Defendant, which did not put on its own case, pointed to a number of weaknesses in claimant's case (in addition to those noted in the section above), including: (i) the failure to call additional members of his family to confirm his alibi; (ii) that Cepeda's testimony was undercut because a person he identified as being part of the robbery, Edward Estrada, was never charged with the crime, never admitted it and when he did testify at our trial here, denied his involvement; and (iii) the criminal trial testimony of Mrs. Ramona Garcia, and to a lesser extent, the trial testimony then of her husband Bernardo and daughter Yaniris (cl exh 29).
Items i and ii do not require elaboration as does the 1995 testimony of members of the Garcia family (cl exh 29). Yaniris testified at both the criminal and civil trials of Vera. Her mother and father, Ramona and Bernardo, testified only at the first trial. (On March 27, 2007, the Court signed subpoenas requested by claimant's lawyer for their presence at trial on June 6, 2007).
Bernardo Garcia
This robbery was not a momentary encounter on the street; the Garcias were held in their apartment for at least two hours — in theory, there was time to get a look at the intruders. But the robbers covered, or partially covered their faces. For example, from Mr. Garcia's testimony:
Q. Did the person who robbed you that day have a mustache?
A. I can't say that because he had — he was covered.
Mr. Garcia was held face down so that he could not see what was going on in the apartment, and at some time point during the robbery, a sheet was put over him to prevent him from seeing anything. At the 1995 trial, when Bernardo Garcia was asked to identify John Vera, he pointed to a spectator in the courtroom.
Yaniris Garcia
Ms. Garcia had identified John Vera as one of the robbers at the criminal trial, but on the stand at the 8-b trial, when asked if he was, responded, "I don't know." Given the testimony that his face was partially covered, consider the following ambiguous exchange from the criminal trial:
Q. And could you see whatever you could of his face at that time?
A. Yes.
That Ms. Garcia said she had seen Vera around the neighborhood and in their store, to this trier of fact, may explain why she originally thought one of the robbers was claimant. When in late 1999 or early 2000, Yaniris was shown photos of John Vera and J. Rock (Jay Perez) by Ms. Bennett, the ADA testified that she observed Ms. Garcia as being shaken by the similarity of their likenesses.
Ramona Garcia
Despite claimant's efforts (including the above referenced subpoena), the only trial testimony we have of Ramona Garcia is from the 1995 criminal trial. At that time, she pointed him out as one of the robbers, stating that she had seen his face clearly, at about arm's length, when the scarf covering his face dropped and "I could see his face completely from his eyebrows to his chin" and that she recognized him from coming into their store a few times and "around there." She went on to say that all the robbers in her apartment were wearing hats and scarves, and that the scarves covered the neck, mouth and up to the tip of the nose.
Mrs. Garcia was with Yaniris when the J. Rock/John Vera set of photos were shown by the Assistant District Attorney and she, recalled ADA Bennett, had a reaction similar to her daughter's.
More precisely, the Garcias were shown two sets of photographs: one set was of Cameron Dotson and John Vera, the other of Anthony Mann and J. Rock.
Discussion
Under the Unjust Conviction Act, the claimant must prove by clear and convincing evidence that he did not commit any of the acts that were charged in the accusatory instrument. In addition, claimant must prove, also by the clear and convincing evidentiary standard, that he did not by his own conduct bring about his conviction, for example, by suborning perjury. As for proving that Mr. Vera did not bring about his conviction, defendant conceded on the record that such provision is not at issue.
In addition to Vera's conviction on one or more counts of Robbery I II, Burglary I and Assault II, he was charged with one or more counts of: Burglary II, Grand Larceny III IV, Unlawful Imprisonment II, Menacing II, and Endangering the Welfare of a Child (Indictment No. 2681/94, Kings County). All 38 charged counts relate to the unlawful intrusion into the Garcia residence, and therefore, if claimant can prove by clear and convincing evidence that he was mistakenly identified as being on the scene on January 6-7, 1994, he has satisfied the requirement that he did not commit any of the acts charged in the accusatory interest.
Paragraph (d) of § 8-b.5. For examples of bringing about one's conviction, see the Report to the Legislature of the Law Review Commission which accompanied the Commission's draft proposal that became the basis of the Unjust Conviction Act, McKinney's 1984 Session Laws of New York at p. 2932.
On page 5 of its Post-Trial Memorandum of Law, defendant suggests that paragraph (d), relating to bringing about one's own conviction, survives as an issue, but such is never developed in its Memorandum, and given that defendant twice conceded otherwise at trial, this reference will be discounted.
Clear and convincing evidence is evidence which satisfies the trier of fact that it is highly probable that what the party with such burden claims happened is what actually did happen ( PJI 1:64). The evidence cannot be equivocal, contradictory or open to opposing inferences.
See Acosta v State of New York, 22 AD3d 367, 801 NYS2d 899 (1st Dept 2005); Alexandre v State of New York, 168 AD2d 472, 563 NYS2d 635 (2nd Dept 1990); and George Backer Management Corp. v Acme Quilting Co., 46 NY2d 211, 220, 413 NYS2d 135, 139 (1978).
We have the testimony and statements of two persons who were part of the Garcia robbery, and they both stated that claimant was not involved in the robbery. Granted Mr. Cepeda has been convicted of this and other, subsequent, crimes, which defendant contends diminishes his credibility, but to this trier of fact, Cepeda's testimony was credible, delivered in a matter-of-fact manner that was not pat or contrived, and no reason was advanced why he would have risked lying at this trial.
No witnesses took the stand at the 8-b trial to testify that Vera was part of the Garcia robbery; defendant rested without putting on a case. Nor was any physical evidence presented linking claimant to the crime, such as fingerprints, fiber evidence or ownership of one of the guns that was brandished at the apartment.
As for identification, the scarves across the faces were good reason to conclude that it was difficult to get a good look at the robber Vera had been convicted of being. Mr. Garcia pointed to the wrong person at the criminal trial; his daughter Yaniris withdrew her criminal trial identification of Vera; and we are left only with Mrs. Garcia's original testimony which she was apparently unwilling to defend at the 8-b trial, having been shaken when shown a photo of Vera next to that of J. Rock.
The testimony from Vera's criminal trial summarized above is that of three family members who lived and worked together. In any event, it was less probative than if three unrelated and unconnected persons had made the same ID at such criminal trial.
To this trier of fact, the evidence is clear and convincing that John Vera was not involved in the robbery of the Garcia family and with no evidence having been adduced that he caused or brought about his convictions by his own conduct, the defendant State of New York is liable to claimant under § 8-b of the Court of Claims Act. The Clerk of the Court is directed to enter interlocutory judgment against the defendant on liability.