Eric DeBerry - Perjury /False Accusation

DeBerry, Eric; robbery; NRE: perjury/false accusation, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant

Suggestibility issues

2011 WL 1239999; writ denial recommended; subsequently denied

"This case arose out of events that transpired in Brooklyn...on July 11, 1999...At about 4:45 a.m. on that date, Kareem Collins ...was walking home from the Utica Avenue train station, wearing a blue, red, and white jersey, when he was approached by two men...One of the two men confronted Collins, telling him that he was '[t]ired of all y'all Crip niggers coming through here.'...Collins ignored him and turned to walk away...The man followed Collins, pulled out a gun, and told him to drop his bag, which contained newly purchased boots...He then fired a handgun at Collins, striking him several times in the body and arm.

"On July 12, 1999, while Collins was in the hospital recovering from the shooting, Detective Patricia Tufo of the Kings County Police Department visited him and presented him with a photo array of possible assailants...Collins identified [DeBerry] as his assailant...On August 9, 1999, during a lineup, Collins once again identified [DeBerry] as his assailant."

"[At trial Collins ] testified that on the night of the incident he had gone to a movie in Manhattan and that, after leaving the movie theater at around 1:30 a.m., had gone to a restaurant called B.B.Q.'s, where he stayed until it closed at 4:00 a.m."

"[DeBerry] asked the trial court to order subpoenas to compel B.B.Q.'s management to testify that, contrary to Collins' testimony that he stayed at B.B.Q.'s until 4:00 a.m., the restaurant closes at 1:30 a.m. ...The court refused to do so..."

"[DeBerry] presented as an alibi witness his neighbor Mary Kirby...Kirby testified under oath that immediately after she heard the shooting in question, she saw [DeBerry] leaning out of his window."

"Prior to sentencing...[DeBerry] submitted an affidavit from Jerome Malone, who claimed that Roberto Velasquez...had confessed to him that he had committed the shooting, and [there was] a tape recording allegedly containing Velasquez's confession...[T]he trial court denied [DeBerry's] motion to set aside the verdict, finding that the purported newly discovered evidence was unpersuasive."

"During the pendency of his direct appeal...[DeBerry] moved before the trial court to vacate his...conviction...[DeBerry] contended that there were five people to whom Velasquez had confessed to shooting Collins ...[DeBerry] also submitted an affidavit from Velasquez himself, in which Velasquez purportedly stated that he had shot Collins in self-defense."

"[T]he court granted...an evidentiary hearing regarding Velasquez's supposed confession...Isaac DeBerry [Eric's brother] testified that Velasquez confessed to him 'three or four times' that he had been Collins's assailant...Finally, Velasquez testified that he had shot Collins and stated that he had refused to come forward earlier because he 'was scared."

"[T]he trial court denied the motion to vacate..."

from NRE synopsis (by Ken Otterbourg):

"In the immediate aftermath of the shooting, Collins told police that he had been shot during a robbery, outside of a nearby bodega or neighborhood market. But the next day, when police interviewed him at the hospital, he said that wasn't true. Rather, he said, he had been shot after two men questioned him about whether he was a member of the Crips gang. In this version, he didn't mention any robbery.

"Detectives with the [NYPD], led by Patricia Tufo, pursued the gang angle. A man who lived nearby named Eric DeBerry became a prime suspect. The exact reasons aren't clear from court records, but DeBerry, then 23 years old, had a previous conviction for robbery and was affiliated with the rival Bloods gang. Tufo brought a photo array that included DeBerry to the hospital on July 12, but Collins said he was too weak to make an identification.

"Tufo continued to interview Collins about the shooting, and on July 23, 1999, Collins went to the 81st Precinct...and picked DeBerry out of a photo array. On that same day, a bench warrant against Collins for larceny and related charges was vacated and his community service imposed for another offense was waived."*

[* This is very fishy. The mere fact that Collins had (allegedly) been the victim of a crime shouldn't magically erase crimes which he himself had committed.]

"On August 4, 1999, Collins changed his story again. Now he told Tufo that DeBerry had first accused him of being a Crip, based on a blue shirt he said he was wearing, then robbed him of some boots and shot him. Collins picked DeBerry out from an in-person lineup at the precinct."

"Two weeks later, on August 19, police received an anonymous call from a woman who said thay had arrested the wrong man. The caller said the shooter was a man named 'Robert Velasquez,' and that he was boasting about the shooting. She also noted that Velasquez and DeBerry looked similar. Tufo did not bring Velasquez in for questioning,* but she showed his picture to Collins as part of an array. Collins said he didn't recognize anyone in the photos."

[* Why not?]

"DeBerry's trial in Kings County...began in January 2000. Prosecutors had no physical or forensic evidence connecting him to the shooting, and their case relied almost exclusively on Collins's testimony.

"In an opening statement, a prosecutor said the shooting was gang-related and referenced the blue shirt that Collins said he was wearing when he was shot. Collins also testified about the blue shirt. But that was false. The clothing recovered from Collins was a white T-shirt and a black and red shirt. Collins's attorney did not bring up the apparent discrepancy. Several police officers testified about the investigation, and all acknowledged they had no physical evidence that showed DeBerry's involvement."

"A jury convicted DeBerry on January 18, 2000, and he was sentenced to 25 years to life in prison.

"Collins recanted his testimony in 2018. He said: 'My multiple identifications of DeBerry were false. On each occasion, the identification was the result not of a sincere and honest recollection on my part but rather the result of suggestions to me by a female detective involved in the case whose name I recall being "Tufo." On multiple occasions, Detective Tufo suggested that I identify DeBerry as the shooter with promises and threats.'"

"Collins said that Tufo threatened him with arrest on a gun charge based on a weapon found at the shooting. 'She told me that I had to cooperate with her and that if I did not, I would get time on the gun.'

"He said that while he didn't know who shot him, 'Detective Tufo convinced me he was the shooter and so I went along with her.' Early in the investigation, Collins said, Tufo pointed to DeBerry, while Collins was looking at a photo array and said something to the effect: 'What about him? This is the guy that shot you.'"

"After an evidentiary hearing, Judge Lawrence Knipel vacated DeBerry's conviction on June 16, 2020."

"DeBerry was released from prison on June 22, 2020. His charges were dismissed on July 27, 2020."

"In February 2021, DeBerry filed a claim for compensation in the New York Court of Claims. In September 2021, he filed a federal lawsuit against the city and several police officers involved in his wrongful conviction."

[All emphases added unless otherwise noted.]