Julio Negron - MIstaken ID / Inadequate Counsel / Misconduct

Negron, Julio; attempted murder; NRE: mistaken witness identification, inadequate legal defense, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, prosecutor lied in court

Suggestibility issues

[976:220]; 2nd Dept. 12/11/13; motion to vacate denied

"The case involved an incident in which [Negron] was identified as the person who shot Mervin Fevrier in the thigh after a brief verbal altercation. Three eyewitnesses also identified [Negron's] car as belonging to the shooter, and testified, together with other eyewitnesses, that the shooter entered the apartment building where [Negron] resides.

"At trial, one of the eyewitnesses who had been with Fevrier at the time of the shooting testified that the shooter had a beard and mustache, and another witness picked out a filler who had a mustache from a lineup that included [Negron]. [Negron] testified that he was clean shaven both before and during the time of the shooting. The prosecutor introduced [Negron's] driver's license photo from 2004 showing him with facial hair.

"Before trial, the [prosecutor] disclosed that another man, Fernando Caban, who lived in the same building as [Negron], had been arrested for possession of a cache of weapons and other contraband. Defense counsel moved to introduce evidence that Caban was the shooter on the basis that Caban looked like [Negron], lived in the same apartment building as [him], and had been arrested after the shooting for possession of a cache of weapons and other contraband. The trial court denied [Negron's] motion."*

[* This judge's name was Gregory L. Lasak. ]

22 N.Y.S.3d 262; Court of Appeals 11/23/15; reversed, due to ineffective assistance of counsel, Brady violations and evidentiary error

"[T]he identification evidence was hardly overwhelming. The episode occurred at about 4:00 A.M.on February 6, 2005 after an apparent 'road rage' incident.

"No evidence was found that linked [Negron] to the shooting.

"None of the witnesses, save the victim, was able to identify [Negron] as the perpetrator. [from FN1: The victim identified [Negron] at a lineup that was later suppressed as suggestive.] Indeed, two of the witnesses identified fillers from the lineups they viewed -- one selecting an individual with facial hair -- and a third witness, who viewed [Negron] at a precinct showup, stated that [he] was not the shooter.

"In December 2008, [Negron] made a pro se motion to vacate his judgment of conviction....[He] included letters from 11 witnesses stating that [he] had been clean-shaven."

"[When the defense moved to introduce evidence that Caban was the shooter], the [prosecutor -- Patrick O'Connor ] objected, disputing that there was any close resemblance between the two other than a shared ethnicity, and maintaining that it was irrelevant that Caban had been arrested the next day for possession of weapons which had not been used to commit this offense and which had been found on the roof of an adjacent building. The court rejected [Negron's] application, stating '[t]he case law is clear. You have to show a clear link between this person and the crime in question. You haven't shown that.' No party objected to the court's use of the 'clear link' standard."

"[Negron] received a response to a...Freedom of Information Act request which included an affirmation in opposition to Caban's motion to dismiss his indictment, from the same [ADA] who had prosecuted [Negron's] case. The document provided additional information about the circumstances of Caban's arrest, including that Caban's attempt to discard the weapons on the roof of a neighboring building had coincided with the arrival of the police to execute the search warrant on [Negron's] apartment and tht Caban had been in possession of .45-caliber ammunition. [FN2: This information was also submitted to [County] Court in one of [Negron's] renewal motions that the court failed to decide.]"

"[Negron], now represented by counsel, made the motion...to vacate his conviction in April 2012. He argued that the [prosecution] had violated their Brady obligations by failing to disclose the information about the circumstances of Caban's arrest and his possession of the .45-caliber ammunition, while actively misleading the court as to the potential merit of [Negron's] third-party culpability defense. [Negron] also argued that his trial counsel had been ineffective for failing to investigate and introduce evidence that [Negron] did not match the description of the shooter. In particular, [Negron] asserted that counsel was ineffective in failing to object to the court's use of the previously overruled 'clear link' standard in rejecting his third-party culpability defense.

"In support of the motion, [Negron] submitted an affidavit from his trial counsel who stated that, at the time of trial, he had known that Caban had been arrested and charged with possession of weapons and ammunition that had been found on the roof of a nearby building. Trial counsel represented, however, that he had not known that Caban had attempted to get rid of the contraband in response to the police arriving to execute the search warrant or that Caban had been in possession of .45-caliber ammunition. Counsel further affirmed that he did not object to the court's use of the 'clear link' standard in rejecting the third-party culpability defense because he was unaware that the standard had been overruled several years earlier -- stating, 'I did not research this issue at all. I have no explanation or excuse for this failure.' Trial counsel further represented that he had no strategic reason for failing to make use of photographs and potential witnesses that would have established that [Negron] had no facial hair at the time of the crime.

"The court denied the motion without a hearing."* [* Again, this was judge Gregory L. Lasak. ]

"Prior to being overruled by this court in People v. Primo [6/12/01],* the 'clear link' standard had required the defendant to 'do more than raise a mere suspicion that another person committed the crime,' that is, to show 'a clear link between the third party and the crime in question.'...Instead, we determined that third-party culpability should be evaluated in accordance with ordinary evidentiary principles -- by balancing probative value against the potential for unfair prejudice, delay and confusion'..."

[* Note that Negron's trial took place in March of 2006, nearly 5 years after New York's highest court had overruled the 'clear link' standard. That should have been (far) more than sufficient time for this Queens County judge, Gregory L. Lasak, to fully acquaint himself with this precedent, and apply it to cases over which he presided. (Moreover, a strong argument could be made that the defense's motion to introduce evidence of Caban's culpability should have been granted even under the old 'clear link' standard, based on what the judge knew at the time: Negron resembled Caban, they lived in the same building, and Caban was arrested for a cache of weapons. In any event, with Negron's December 2008 motion to vacate, Judge Lasak was made aware that Caban's attempt to discard the weapons on the roof of a neighboring building coincided with the police coming to search Negron's apartment, which constituted strong evidence of Caban's consciousness of his own guilt. And yet, Lasak denies the motion anyway -- without even conducting a hearing. That is the hallmark of a pro-prosecution judge.)]

"Here...Caban did bear a general resemblance to the description of the perpetrator, lived in the same building and was arrested in close proximity to the time of the offense for possessing weapons and ammunition (including the type of ammunition used in the shooting) under cirumstances evincing a consciousness of guilt."

"The [ADA] (who was also prosecuting Caban and was quite familiar with the circumstances of his arrest [Patrick O'Connor] ) in addressing [Negron's] third-party culpability application characterized Caban's arrest as 'irrelevant' and his connection with the shooting as 'tenuous at best.' The prosecutor also attempted to portray [Negron's] application as a mere attempt to pin the crime on another individual who lived in the same building and happened to be of the same ethnicity, all while aware that defense counsel was not fully familiar with the relevant information surrounding Caban's arrest."

from NRE synopsis (by Maurice Possley):

"Shortly before 4 a.m. on February 6, 2005, 31-year-old Melvin Fevrier was driving home from a party in Queens...along with a passenger, Elliot Miley. As Fevrier was driving up Woodward Avenue, a car was backing down the street. Fevrier honked his horn and exchanged words with the driver as they passed.

"Fevrier later told the police that the driver stopped, got out, and began yelling at him. Thinking he might have hit the other car, Fevrier got out and began walking toward the other driver. Fevrier said that both were yelling at each other, and as he got closer, the man got a pistol from his car and pointed it at him. When Fevrier asked what he was going to do, the man said, 'This is what I am going to do,' and shot Fevrier in the leg. Fevrier and Miley -- who was behind Fevrier at the time -- turned and ran. Fevrier and Miley got back into their car and as they sped sway, they heard two more gunshots.

"Fevrier and Miley eventually flagged down a bus, and the driver radioed for the police. Fevrier was taken to a hospital, and Miley returned to the scene of the shooting with an officer. Fevrier and Miley initially said the car had four doors and was either a Buick or a Cadillac, and Miley said the gunman drove off after the shooting. Nevertheless, Miley pointed out a green two-door Chevrolet Monte Carlo, which was parked on Woodward Avenue. The officer touched the hood of the car and found it still warm."*

[* So, this car Miley spots after the incident differs from the original description in terms of the number of doors AND make. Plus, it was said to have sped off. And then what -- the shooter drives it right back to the street where he just tried to kill these two guys -- and parks it? That's ludicrous.]

"Dmitriy Khavko, Zoryana Ivaniv, and Andriy Vintonyak had been sitting in a car parked on Woodward and fled when the shots were fired. They came back after police arrived, and said the driver had parked and walked into a building...Police towed the Monte Carlo and records showed it was registered to 38-year-old Julio Negron. Three .45-caliber shell casings were found on the street.

"Around 9:30 a.m., about five-and-a-half hours after the shooting, detectives rang Negron's doorbell and asked if he owned a green Monte Carlo parked around the corner. Negron pointed at the street, saying, 'No, I parked it across the street.' He said he had been at a party the previous night and then at a club until about 2 a.m. When he noticed the car wasn't across the street, he asked if it had been stolen. In response, the detectives asked him to come to the police station.

"Negron was eventually put in a lineup, but first, Fevrier was allowed to see him in a holding cell. Fevrier, who had been treated and released, was unable to say for sure that Negron was the gunman. The detectives, as well as the prosecutor, Patrick O'Connor, then took Fevrier into a private room and spoke with him for about 15 minutes. When Fevrier came out, he viewed the lineup again and said he was '100 percent sure' that Negron was the gunman.

"Miley was unable to identify Negron and identified the filler in position #1 as the gunman. Negron was in position #5.

"Two of the three people who were in the car on the street when the shots were fired came to the station. Ivaniv viewed Negron in a holding cell and immediately told detectives that Negron was not the gunman. Khavko picked the filler who was in position #2 in the lineup.

"Based on Fevrier's identification, Negron was charged..."

"In July 2005, a hearing was held in Queens...on a motion to suppress Fevrier's identification. Ultimately, the judge barred the evidence of the lineup based on the impropriety of Fevrier's meeting with the detectives and the prosecutor after he initially was unable to make a positive identification. The judge also ruled that the fillers in the lineup looked nothing like Negron. However, a different judge ruled that Fevrier could nevertheless testify based on his opportunity to see the gunman at the time of the shooting.

"Negron went to trial in March 2006. The defense objected when the prosecutor, O'Connor, brought Fevrier into the courtroom during a recess so that he could view Negron sitting at the defense table. However, the judge did nothing, saying that he believed it was unintentional."*

[* One wonders if this was the same pro-prosecution judge who overruled a previous judge's exclusion of Fevrier's testimony. This action by the prosecutor looks like a calculated attempt to 'familiarize' Fevrier with Negron before actually testifying.]

"Fevrier testified and identified Negron as the man who shot him. Khavko, Vintonyak, and Ivaniv testified that the gunman entered [the building] where Negron lived. Both Khavko and Ivaniv, who had identified fillers at the lineup, testified that they didn't see the gunman in the courtroom, although Negron was sitting at the defense table.

"Their descriptions varied. Miley said the gunman had a beard and a mustache and was wearing dark pants, a sweatshirt, and a black wool cap. Khavko and Ivaniv said the gunman had a black bandana on his head. Khavko also said the gunman wore a plain green jacket.

"Negron denied involvement in the crime. He testified that he was a custodial engineer for the New York City Department of Education and worked two jobs -- at a public school in Brooklyn during the day and at a high school in Long Island in the evening. He said he was clean-shaven at the time. Two friends of Negron testified they were out with him that night, and that he was wearing a jacket with a Ground Zero recovery patch, blue jeans, and a Yankees basebal cap.

"The prosecution, in rebuttal, presented a photograph of Negron's driver's license showing him with facial hair. The photograph on the license, however, was taken eight years earlier.

"The defense also sought to introduce evidence that a man named Fernando Caban was the real gunman. Caban resembled Negron, lived in the same building, and one day after the shooting had been arrested for possession of a cache of weapons. Prosecutor [Patrick] O'Connor objected to the evidence as insufficient and the judge barred it, ruling it didn't meet a standard requiring a 'clear link' between the evidence and the crime on trial.

"On March 27, 2006, the jury convicted Negron on all counts."

"[A] motion in Queens County...seeking to vacate Negron's convictions...claimed that Negron's trial attorney had provided an inadequate legal defense by failing to call witnesses to support Negron's testimony that he was clean-shaven at the time of the crime. The motion also said the judge had used the wrong legal standard in denying the defense the opportunity to present evidence that Fernando Caban was the real gunman.

"Moreover, the motion said that the prosecution had failed to disclose that Caban was arrested after he fled the building and threw away .45-caliber ammunition -- the same type used in the shooting of Fevrier.

"The motion was denied in 2012, and the Appellate Division upheld that ruling in 2013. In November 2015, however, the New York Court of Appeals reversed Negron's conviction and ordered a new trial based on new information about Caban that Negron had subsequently received pursuant to a public records request.

"The information showed that Caban had attempted to flee the building and discard the weapons and ammunition when the police arrived at the building to question Negron -- apparently because he thought the police were after him. In addition, Caban had been in possession of .45-caliber ammunition -- the same caliber involved in the shooting of Fevrier. Moreover, the prosecutor in Caban's case was [Patrick] O'Connor -- the same prosecutor in Negron's case.

"The appeals court ruled that the trial judge had applied an incorrect legal standard in barring the defense from presenting the limited information on Caban at trial. It further ruled that the additional information about caliber of the ammunition should have been disclosed to the defense.

"Negron was released on bond in January 2016. After the prosecution said it intended to retry the case, [a motion to dismiss the indictment was filed]. "On September 6, 2017, Queens County... Judge Gregory Lasak dismissed the charges, ruling that the prosecution had failed to present evidence relating to the failure of other witnesses to identify Negron when it presented the case to the grand jury for indictment.

"'Had the grand jury understood that two witnesses selected a person other than [Negron] in the lineup, one witness stated that. . .the shooter was not [Negron] and the circumstances under which Mr. Fevrier's identification changed from an equivocal to a certain one, not only would the grand jury presentation been forthright, but it is very likely that the outcome of the grand jury proceedings would have been different and that the grand jury would have determined that this was a needless or unfounded prosecution,'* Judge Lasak ruled."

[* Applying an analogous critique of the grand jury proceedings in the Nickel case, had THAT grand jury understood that each and every detail 'Arthur' provided (at his initial police interview) regarding Nickel's home was wrong, and had it been shown the police-taken photographs that proved it, the grand jury would have determined that THAT was an unfounded prosecution. ] "'Indeed, given the sheer volume of the exculpatory evidence and its bearing on the only critical issue in the case, the omission or incomplete nature of this evidence obviously had the potential to prejudice the ultimate decision reached by the grand jury that [Negron] was, in fact, the shooter,' the judge said.

"Negron subsequently filed a claim for compensation with the New York Court of Claims. It was dismissed in 2021. In November 2018, he filed a federal civil rights lawsuit against the city of New York, [prosecutor Patrick] O'Connor and a police investigator. The lawsuit was settled for $6.25 million in November 2021."

[All emphases added unless otherwise noted.]