Mayer Herskovic - Perjury / False Accusation

Herskovic, Mayer; assault; NRE: perjury/false accusation, false/misleading forensic evidence

Bench Trial

85 N.Y.S.3d 571; 2nd Dept. 10/10/18; reversed, due to weight of evidence

"The complainant testified that, on December 1, 2013, he was assaulted by approximately 20 Hasidic Jewish men in Williamsburg, Brooklyn. [Herskovic] and others were charged, inter alia, with gang assault in the second degree, unlawful imprisonment in the first degree, and menacing in the third degree. Following a jury trial, [Herskovic] was convicted of the aforementioned three charges.

"[W]e conclude that the verdict was against the weight of the evidence.

"At the trial, the complainant was not able to identify any of the persons who assaulted him. The complainant testified that one of the attackers shoved a thumb in his eye. Moreover, he testified that, during the assault, his sneaker was removed and thrown onto a nearby roof by one of the individuals who attacked him. Notably, the complainant and others who testified at the trial gave conflicting accounts of the assault. Among other things, the complainant testified that the person who pulled off his sneaker was the same person who shoved a thumb into his eye. He referred to this person as the 'ringleader' and one of the three men who initially chased him. However, he also testified that the person he identified as the ringleader was not [Herskovic]."

from NRE synopsis (by Ken Otterbourg):

"Taj Patterson was walking home through Brooklyn...at about 4 a.m. on December 1, 2013, when he was chased and then attacked by a group of young men.

"Many of the men were members of the Williamsburg Shomrim, a neighborhood watch group for the area's Hasidic community. They would tell police that they had believed Patterson was vandalizing cars, but that suspicion turned out to be false.

"As Patterson fought back, one of the attackers gouged him in the eye and then kicked him in the eye and then kicked him in the head. During the attack, he told police, that man also pulled off his sneaker and threw it on a nearby roof.

"The attack left Patterson, then 22, blind in his right eye. He was intoxicated at the time of his attack, and he would tell investigators that he could not identify his assailants because they were all young Hasidic men, wearing the same basic clothes with similar clothing and facial hair. He said there was an initial group of three men who chased him, and one of these had been the man who blinded him and took his shoe. Video cameras seemed to identify some of these possible assailants, but police initially closed the case without making an arrest.

"Patterson's mother complained to the media about the police department's indifference. She said public officials were too deferential to the Hasidic community because of its political clout. The case was reopened, and on April 23, 2014, Mayer Herskovic, a 21-year-old...was one of the five men arrested after other members of the Hasidic community named him as one of Patterson's assailants.* He was charged with gang assault in the first and second degree, unlawful imprisonment in the first and second degree, third-degree assault, and third-degree menacing. Charges were eventually dropped against two of the men. The other two pled to minor offenses and were given probation."

[* Based on what? Were the Hasidim who named him actually present at the assault? Herskovic would seem to have been offered up as a sacrificial lamb.]

"Herskovic was not a member of the Shomrim. The video footage excluded him from the initial chase, and there were no witnesses who said he was there. Patterson could not pick Herskovic out of a lineup.

"When the bench trial began in September 2016, the state's evidence hinged on DNA testing done on the sneaker recovered from the rooftop. It appeared to show a high probability that Herskovic's DNA was on the part of the sneaker that Patterson's assailant had grabbed. Patterson testified, and now said he was not sure that his principal assailant was in the group that initially chased him.

"On September 23, 2016, Judge Danny K.Chun of...Kings County convicted Herskovic of second-degree gang assault, first-degree unlawful imprisonment, and third-degree menacing. He was acquitted of first-degree gang assault. The other two charges had been dropped prior to trial. Herskovic was sentenced on March 16, 2017 to four years in prison, pending his appeal.

"Herskovic's attorney on appeal, Donna Aldea, asserted that the DNA testing was flawed. Moreover, the state had waited until the eve of trial to provide underlying notes and methodology, depriving Herskovic of effective counsel because of limited opportunity to adequately analyze the results.

"The sample taken from the shoe was under 100 picograms, the standard lower limit for comparisons.

"However, the Office of the Chief Medical Examiner in New York had developed software that allowed it to amplify these small samples to run comparison tests on genetic markers called alleles. The office's analysts said the probability of the sample having Patterson's and Herskovic's DNA was 133 times greater than it being Patterson's and an unknown person's.

[We have never seen a DNA probability match expressed in such terms in any other case.]

"Aldea argued that probability was misleading because it combined two different testing methods. The first was a so-called composite test that dropped out potentially fluke alleles, ones that weren't consistently present. With that test, some of his 15 pairs of tested alleles were present; others weren't. So the analyst restored the fluke alleles, which he testified was permissible under OCME protocol. While it created a stronger connection between Herskovic's DNA and the shoe sample, it also indicated the DNA of a third person.

"In addition, Aldea argued that the gene pool in the Williamsburg Hasidic community was fairly homogeneous, and it was therefore possible that the comparative results detected by the DNA analysis could fit more than one person.

"The OCME had discontinued using sample amplification shortly after Herskovic's trial.

"On October 10, 2018, the Appellate Division...vacated Herskovic's conviction and dismissed the charges.

"'Under the circumstances of this case, including the complainant's inability to positively identify any of his attackers, the varying accounts regarding the incident, and the DNA evidence which was less than convincing, we find that the evidence, when properly weighed, did not establish [Herskovic's] guilt beyond a reasonable doubt.'"

[All emphases added unless otherwise noted.]