Edward Garry - Perjury, Mistaken Identification

Garry, Edward; murder; NRE: mistaken witness identification, perjury/false accusation, withheld exculpatory evidence

[703:437]; 1st Dept. 2/3/00; affirmed

"The verdict was not against the weight of the evidence."

2003 WL 21436217; S.D.N.Y. 6/19/03; writ denied

"On August 18, 1995, Oswald Potter was shot and killed during a store robbery. Two witnesses came forward and identified [Garry] as one of the two men involved in the robbery.

"Gladys Garcia, a store employee...viewed three photograph books containing photographs of almost three hundred male Hispanics. Ms. Garcia selected [Garry's] photograph and told the investigating detective 'Yeah, that looks like the guy.'...[Several days later,] both Ms. Garcia and [Antonio] Vargas[, who was seated outside the store at the time of the robbery]...viewed lineps...and both positively identified [Garry] was one of the robbers."

from NRE synopsis (by Maurice Possley):

"Shortly after 6 p.m. on August 18, 1995, two armed men -- one black and one Hispanic -- entered the back room of an illegal gambling operation in Irene's New Hope grocery store in the 3500 block of Laconia Avenue in the Bronx...The Hispanic man fired two shots into the ceiling and yelled, 'This is a stickup!' He ordered the men, who were playing dominos, to get onto the floor.

"The Hispanic man then gave a plastic bag to an employee, Gladys Garcia, and ordered her to collect wallets and cash from the men playing dominos. As Garcia was filling the bag, one of the men on the floor, 62-year-old Oswald Potter, a retired New York City police officer, grabbed for the black robber's gun.

"As the two struggled, Potter pushed the robber down and his gun fell to the floor. Potter made a dash to the front of the store and the Hispanic man followed. Another shot was fired and Potter fell, gravely wounded. The black man grabbed the bag containing about $600 and fled.

"In the front of the store, the owner, Irene Taylor, and another employee were discussing an order with Felix Vargas, a beverage distributor. They ran outside when they heard the first two gunshots fired into the ceiling. There, Felix Vargas's 18-year-old son, Antonio, was waiting in his father's truck. When he heard the shots, he got out, concerned for his father.

"At that moment, Felix came running out and ordered Antonio to get back into the truck. Felix was trying to start his truck when they heard two more gunshots. Antonio, who was standing outside the truck, later told police that he saw two men run out of the store past the front of the truck and jump into a car that had pulled up minutes earlier. Antonio said he heard one of the men say, 'I can't believe he made me shoot him.'

"Potter then emerged from the store, bleeding from a gunshot wound to the chest. He died not long after. Police recovered three shell casings from the store -- all .38-caliber, as was the bullet recovered from Potter's body.

"The following day, August 19, 1995, Garcia viewed three police books containing hundreds of photographs of Hispanic males. She selected the photograph of 20-year-old Edward Garry Jr., a member of the Latin Kings street gang, and said he 'looks like' the gunman.

"Antonio Vargas viewed the same three books the next day. According to a police report, he did not make an identification that day, although he pointed to two or three photographs of Hispanic males. When he came to Garry's photo, he said, 'I think this could possibly resemble the person I took a glance at, but I'm not positive.'

"On August 22, 1995, Garcia and Antonio again separately went through between 500 and 800 photographs of Hispanic males. Garcia's certainty in her identification of Garry increased, while Vargas would only say Garry 'resembled' the gunman.

"Police arrested Garry that day and on August 23, 1995, put him in a lineup, which Garcia and Antonio viewed separately. Both again selected Garry as the gunman, although Antonio still would only say that Garry 'resembled' the man he saw running from the store.

"Garry was charged with second-degree murder and two counts of robbery.

"He went to trial in Bronx County...in October 1997. Garcia and Antonio both testified. Garcia identified Garry as the gunman, but Antonio was not asked to identify him. The prosecution also called Richard Huffman, who testified that he had been incarcerated with Garry prior to the trial. He said that Garry admitted to him that he had been involved in a robbery at a grocery store and had killed a man.

"Garry's parents testified that Garry was at home with them on the day of the crime at 5:30 p.m., and remained there until about 6:30 or 6:45 p.m. -- past the time of the robbery.

"On November 19, 1997, the jury convicted Garry of second-degree murder and both counts of robbery. He was sentenced to 25 years to life in prison. Garry appealed, and the Appellate Division upheld his conviction in 2000.

"In 2002, Garry filed a post-conviction petition seeking a new trial after Huffman, the jailhouse informant, signed a sworn statement recanting his testimony. By the time a hearing was held, however, Huffman had told prosecutors his recantation was a lie. After Huffman invoked his Fifth Amendment protection from self-incrimination and refused to testify at the hearing, Garry's petition was denied.

"In 2003, Lawrence Broussard was arrested by federal agents in New York City and charged with illegal possession of a weapon by a convicted felon -- a charge that carried a mandatory minimum sentence of 5 years in prison. Broussard offered to plead guilty for a reduced sentence. In return, he would provide information on all criminal activities he knew about or in which he participated. During that debriefing, Broussard admitted that he was the black man who went into the grocery store and had lost his gun during the struggle with Potter.

"Broussard said he committed the crime with a friend, Brent Mason, and two other men. He said he met the two men shortly before the robbery when all four were buying drugs from the same seller. Broussard said he knew the two men, both Hispanic, only as 'Pito' and 'Flip.' Broussard said Mason and Pito remained in the car during the robbery while he and Flip went inside. He said Flip shot Potter.

"Broussard ultimately identified Mason in a photographic lineup, and identified Marrero as the man he knew as Pito. Mason and Marrero were arrested. Subsequently, Broussard, Mason, and Marrero pled guilty and were sentenced to prison for federal weapons charges related to the Potter murder.

"As part of their cooperation agreements, Broussard and Mason viewed photographic lineups containing Garry's picture. Neither identified him as Flip.

"In 2008, the Bronx [DA's] Office disclosed this information to a lawyer who had been appointed to represent Garry.

"In 2009, that lawyer filed a post-conviction petition seeking a new trial. The motion was denied, however, when the judge ruled that the failure of Broussard and Mason to identify Garry as the gunman 12 years after the crime was 'entirely insufficient to create. . .a probability' that the verdict would be different if there was a retrial.

"In 2010, Glenn Farber and Rebecca Freedman at Exoneration Initiative, a non-profit organization that provides free legal assistance to the wrongfully convicted, began re-investigating Garry's case. In 2012, they submitted a Freedom of Information request to the [NYPD] for all reports relating to the case. For the first time, a report was disclosed showing that in June 1996 -- 10 months after the murder -- the police latent print unit was asked to compare fingerprints found at the scene of the crime to those of Steven Martinez.

"At the defense's request, a photographic lineup containing the photograph of Steven Martinez was shown to Broussard. Broussard identified Martinez as the man he knew as Flip -- the gunman who shot Potter.

"In August 2014, Garber and Freedman filed another petition to vacate Garry's conviction, and a hearing was held over several days in November 2015. Among the witnesses was Peter Forcelli, a special agent for the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

"Forcelli had been a detective in the [NYPD's] 47th Precinct when he was assigned to a task force assembled to solve Potter's murder. He had assisted the lead detective in preparing the photographic lineups and other tasks that led to Garry's arrest for Potter's murder. Years later, he left the department and became a federal agent. Along the way, his work was focused, in part, on investigating wrongful convictions. By the time he testified at the hearing he was in charge of the ATF Miami field office.

"Forcelli testified that in 1996, he was transferred to the 45th Precinct. That summer, he was investigating the murder of Keith Ralph, who had been stabbed and beaten to death on August 9, 1995 -- nine days before Potter's murder. By the time Forcelli was assigned to the Ralph murder, the lead suspect had already been identified -- Steven Martinez.

"Forcelli said that in June 1996, an informant reported overhearing Martinez say that he had been involved in a robbery in the 'Valley,' during which someone was killed. Forcelli knew that the Valley was a description of a geographic area in which Irene's New Hope grocery was located. Forcelli said that he used the police department computers to try to identify any robbery that fit that description. The only one that came close was the robbery at Irene's New Hope. Forcelli said he therefore ordered a comparison of Martinez's fingerprints with fingerprints recovered from the scene of Potter's murder. However, the results were negative. Nevertheless, believing that Martinez was involved in the Potter murder, Forcelli notified commanding officers in the 47th and 45th precincts as well as the Bronx [DA's] office. Forcelli said he had two conversations with the prosecutor Angelo MacDonald, who was handling the Garry case, about his belief that Martinez was involved.

"However, MacDonald told Forcelli there wasn't sufficient evidence to arrest Martinez. While Forcelli was testifying, Garber showed him photographs of Martinez and Garry from the time of the crime. Forcelli would later say that in looking at the photographs, he saw how strikingly similar the two men appeared. He immediately was struck by the possibility that Garry was a victim of mistaken witness identification.

"In 2016 -- a year after the post-conviction hearing -- prosecutors and Garry's defense lawyers got copies of Forcelli's reports from the Keith Ralph murder file. As a result, the hearing on the motion for a new trial was re-opened and Forcelli was again called to testify.

"He said that one of the reports documented a second interview with his informant. The informant said that in the summer of 1995, he remembered Martinez coming into an apartment where the informant was along with a woman named Marilyn Walton. Martinez was 'sweaty' and 'flustered' and said, 'I just shot some guy on Laconia Avenue.' The informant said Martinez was waving a handgun 'as if to show off the weapon he used.' The reports said that Forcelli interviewed Walton and she corroborated the informant's account.

"Although the Bronx [DA's] Conviction Integrity Unit had re-investigated the Potter murder, the unit did not publicly state whether it had reached a conclusion. Darcel Clark, who was elected [DA] in 2016, opposed granting Garry a new trial.

"In March 2017, Bronx County...Justice Michael Gross granted the petition and vacated Garry's conviction. Judge Gross ruled that the information about Martinez was exculpatory for Garry and the prosecution's failure to disclose it to Garry's trial defense lawyer resulted in an unfair trial. On March 31, 2017, Garry was released on bond pending a retrial.

"In January 2018, Garry went to trial for a second time. Garcia again testified and identified Garry as the gunman, though she now said she was no longer sure. Antonio testified and did not identify Garry as the gunman.

"Jose Marrero testified for the defense that he drove the getaway car, and that Garry was not involved in the crime.

"Forcelli also testified for the defense about the information he received from the informant regarding Martinez's admission to the shooting. Forcelli said that based on that information, he conducted further investigation that included requesting Martinez's fingerprints for comparison to fingerprints found in Irene's New Hope grocery store.

"Forcelli also tesified that he spoke to detectives and supervisors in the 47th precinct -- where Potter was murdered -- and brought them a photographic lineup containing Martinez to show to Garcia and Antonio and others in the store at the time of the crime.

"During cross-examination by the prosecution, Forcelli said that he believed in 1996 that there was enough evidence to arrest Martinez for Potter's murder and that he still believes Martinez should be charged with the crime.

"On February 5, 2018, the jury deliberated for less than a half-hour before acquitting Garry of all charges.

"On May 5, 2019, Garry filed a civil rights lawsuit in U.S. District Court for the Southern District of New York seeking damages for his wrongful conviction. In March 2020 Garry settled a claim in the New York Court of Claims for $3,850,000. In April 2020, Garry died. In 2021, the city of New York agreed to pay his estate $7.7 million."

[All emphases added unless otherwise noted.]