Gonzalez v State of New York

[*1] Gonzalez v State of New York 2008 NY Slip Op 52654(U) [22 Misc 3d 1120(A)] Decided on December 23, 2008 Ct Cl Soto, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2008
Ct Cl

Hector Luis Gonzalez, Claimant,

against

The State of New York, Defendant.



107301



APPEARANCES:For Claimant:

Cochran Neufeld & Scheck, LLP

By: Nick J. Brustin, Esq.

Jennifer E. Laurin, Esq.

and

Glenn A. Garber, P.C.

By: Glenn A. Garber, Esq.

For Defendant:

Hon. Andrew M. Cuomo, Attorney General

By: Robert J. Schwerdt, AAG,

Joseph Paterno, AAG (on D/R)

Faviola A. Soto, J.

This claim for unjust conviction and imprisonment, pursuant to Court of Claims Act § 8-b, was tried before me on the issue of liability on July 14, 15, 16, 17 and 23, 2008. This Decision follows the submission of post-trial memoranda.

The Court notes the following procedural history. The claim was assigned to this Court by Order of Transfer filed January 29, 2007. Extensive discovery and motion practice ensued; the Court granted the requests of defendant the State of New York (State) for various extensions of time in which to conduct yet additional discovery; claimant filed his Note of Issue on March 10, 2008; claimant's motion for partial summary judgment (M-74743) was submitted on May 7, 2008. Following the May 12th oral argument, the Court granted the motion on the record; the written Decision and Order was filed July 2, 2008. Familiarity with the stipulations and orders, the filed discovery, the prior proceedings and the Court's decisions and orders, is assumed.

The sole remaining issue in this liability trial is innocence. It is claimant's burden to prove, by clear and convincing evidence, that he is innocent of the underlying crime. Court of Claims Act § 8-b (5); Alexandre v State of New York, 168 AD2d 472. [*2]

Claimant Hector Gonzalez testified, and called as witnesses: former Assistant United States Attorney Catherine Friesen; Henry Arias, Billy Gerena, Dr. Mechthild Prinz, Rosemary Anzalone, Glendon Kirkpatrick, and Detective James Papaemanuel. Claimant also read into evidence excerpts from the criminal trial testimony of two prosecution witnesses, Alphonse Pascual and Mary Shenouda. Sergeant Marc Mendez testified on behalf of the State.

The Conviction and Subsequent Dismissal Based on New Evidence

In the early morning hours of December 2, 1995, Lemuel Cruz was beaten, stabbed and murdered in a savage gang attack outside a Brooklyn bar and club. Hector Gonzalez was arrested on December 2, 1995, and charged with his murder. Claimant and four co-defendants, Hector Perez, Suriel Esteban (a.k.a. Roberto Correa), Billy Gerena and Christian Pacheco, subsequently were indicted for Murder in the Second Degree, Riot in the First Degree, Aggravated Harassment in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree.

At the trial held in October, 1996 (criminal trial), serology evidence was introduced; DNA analysis was not available. That serology test, used to convict Hector Gonzalez, found that blood on Hector Gonzalez's pants was consistent with the victim's blood type. Claimant and three of his co-defendants were convicted. Billy Gerena was acquitted of all charges.

Hector Gonzalez was sentenced to an indeterminate term of fifteen years to life, of which he served six and a half years.

In April, 2002, the District Attorney's Office and defense counsel brought a joint motion to dismiss the conviction based on newly discovered evidence - - DNA evidence. The DNA testing, conducted as part of a federal investigation, showed that the blood on Mr. Gonzalez's pants was not that of the victim. The Honorable Alan Marus, J.S.C., who had presided over the criminal trial and sentenced Mr. Gonzalez, granted the motion and dismissed the charges. This claim, and a related action in State Supreme Court, followed.

Hector Gonzalez

On the evening of December 1, 1995, Hector Gonzalez, who was not quite 18 years old, planned to go out with his two cousins, Billy Gerena and Carlos Perez, for Billy's birthday. Carlos Perez picked him up at his father's house and they met Billy Gerena and several others.

They walked a bit and stopped at a liquor store. Hector Gonzalez took a couple of sips of Cisco wine. They proceeded to a bar and club located on 423 Third Avenue, corner of Seventh Street, in Brooklyn.

This was Hector's first time there. Most of the people who were at the club were members of the Almighty Latin King Nation (Latin Kings), and had attended a Latin Kings' meeting earlier in the evening. Hector Gonzalez was not a member of the Latin Kings and had not attended that meeting.

While at the bar, a fight broke out between Christian Pacheco and Roberto Correa. Hector Gonzalez and others attempted to stop the fight. Somebody yelled out "ain't nobody leaving from the club until we find out who started the fight." When Hector heard those words, he left with a crowd and stood in front of the club's entrance door, which was made of glass. He looked into the club through the glass and saw people pushing or pulling someone through the side door exit. He later came to learn that the person being pushed or pulled was Lemuel Cruz. Hector then saw Mr. Cruz being dragged out of the side entrance; Hector stood next to the dumpster on the corner. [*3]

As he stood on the corner, he could see Lemuel Cruz being punched. He also saw Roberto Correa cut Mr. Cruz with a razor. This was a violent confrontation with many people involved.

As the attack ended, Hector moved away from the dumpster. He saw his cousin, Billy Gerena, and Roberto Correa. Mr. Cruz was lying on the ground alone. Hector walked up to Mr. Correa and saw that Mr. Correa's hand was bleeding. Hector bandaged Mr. Correa's hand and then helped carry Mr. Pacheco, who also was injured. Hector left them together and proceeded to look for his cousin Carlos Perez. Mr. Perez was down on the corner; he also was injured and sustained a gash on his hand. Hector Gonzalez held Carlos Perez's hand; the hand was dripping blood.

Hector then left with Mr. Perez and a girl nicknamed Cuchie. They proceeded up the block and were stopped by uniform police officers. The officers put them against the wall, searched them, let Hector and Cuchie go, and detained Carlos Perez.

Hector Gonzalez and Cuchie flagged down a car service to go home, but as they were proceeding they saw Carlos Perez leaning on an ambulance and they exited the car. As they were walking towards the ambulance, Hector Gonzalez was approached by a young woman who had directed Cuchie to an undercover cop. The undercover officer asked Hector Gonzalez to go across the street. He complied and waited by the police car, and they were asked to get into the car.

Hector told the officer he wanted to go to the hospital to see if his cousin Carlos was all right, and the officer took them to the hospital. As they arrived at the hospital, Hector followed the officer to the emergency room. That officer spoke to Sergeant Teresa Cohen, who stopped Hector from entering further. She asked him what he was doing there, and he responded that he wanted to see his cousin. She then asked him how he got blood on his pants, and he told her that it was from his cousin. She had him wait and then two officers entered the emergency room, put Hector Gonzalez against the wall, searched him, found marijuana belonging to Cuchie, and then placed him in handcuffs. They placed Hector Gonzalez in a room in the hospital while he was in handcuffs and brought several people in to take a quick glance.

The officers then took Hector Gonzalez to the precinct, telling him that he was getting a Desk Appearance Ticket. Hector Gonzalez was fingerprinted, photographed and placed alone in a cell. He saw Carlos Perez, Hector Perez, and Billy Gerena walk past his cell. He heard them talking but could not see them from his cell.

Thereafter, Hector Gonzalez was taken to Central Booking where he learned, for the first time, that he was arrested for murder.

Hector Gonzalez testified that he had no involvement in the murder of Lemuel Cruz, and he has never wavered from this claim. He testified credibly that, while he was not a member of the Latin Kings prior to his incarceration, he felt compelled to join the Latin Kings, for protection and to survive during his incarceration.

During his incarceration, federal agents came to visit him. They asked him about the Lemuel Cruz murder. He told them that the blood on his pants belonged to Roberto Correa and Carlos Perez.

Catherine Friesen

Catherine Friesen is a former Assistant United States Attorney (AUSA) for the United [*4]States Attorney's Office for the Eastern District of New York, where she worked as a prosecutor from September 1996 to January 2005. During her tenure in the Violent Criminal Enterprise Section, which was established primarily to target RICO and racketeering law violations, she was investigating the Latin Kings. This investigation began in May 1998, and was conducted city-wide in New York City, jointly with the Federal Bureau of Investigations (FBI) and the New York City Police Department (NYPD). Ms. Friesen was given authorization to testify as a former AUSA by the government, and the scope of her testimony was limited to that agreement.

The investigation initially focused on the crack/cocaine conspiracy involving the Latin Kings in Sunset Park and the heroin conspiracy. The investigation included the purported leader of the Latin Kings' gang in the New York City area, Antonio Fernandez, who was called King Tone.

The purpose of the investigation was to obtain sufficient evidence to indict the persons arrested with the charges of crack and heroin distribution. Ms. Friesen coordinated and directed the various law enforcement agents involved.

As part of this investigation, Ms. Friesen interviewed, in June 1998, Billy Gerena, a Latin Kings' member who was arrested for distribution of crack/cocaine. After entering into a proffer agreement [FN1], Mr. Gerena gave information about his commission of and involvement with major and minor crimes. These crimes included drugs, assaults, and robberies. Mr. Gerena also referenced the Lemuel Cruz murder, and he gave information regarding his own involvement and that of other Latin Kings.

Ms. Friesen testified that prior to the proffer sessions, Mr. Gerena, as well as other witnesses, were fully advised of their obligation to tell the whole truth about all of their criminal involvement and that of others, regardless of who was involved and no matter how minor the crime. They also were told that everything divulged would be checked and subject to investigation and examination.

Ms. Friesen testified that Mr. Gerena stated that he had been arrested for the murder of Lemuel Cruz and was acquitted, and had further information. This was the first time Ms. Friesen had heard of the murder. She was skeptical and was surprised that it was raised. The evidence against Mr. Gerena in the narcotics case was rock solid; if he were to lie, there would be no proffer agreement, and based on the amount of crack he was distributing, he was facing a long sentence.

During the proffer sessions, Mr. Gerena discussed in detail the night of Mr. Lemuel Cruz's murder. He stated that the Latin Kings had killed Mr. Cruz. He admitted to assisting his fellow Latin Kings by pulling a knife and that he was about to jump into the fray, but that he accidentally stabbed another member of the Latin Kings in the back.

Significantly, although he implicated other members of the Latin Kings who were involved in the attack but who were released or not arrested or prosecuted by the State, he stated that Hector Gonzalez was not involved. [*5]

Ms. Friesen also conducted proffer sessions with Mr. Arias, a leader in the drug conspiracy, who also was under arrest. She met with him a total of 20-40 times. Mr. Arias provided extensive information about his own involvement and that of others in the drug conspiracy. Mr. Arias also described gun crimes and assaults, including the approximate four to five hundred strong-arm robberies he had committed.

Mr. Arias further provided extensive information about other crimes he committed, including the murder of Mr. Cruz. He admitted he had participated in the beating, and named other participants.

Notably, he too stated that Hector Gonzalez was not involved, and that Mr. Gonzalez was on the sidelines.

During the proffer sessions, Ms. Friesen made it clear to both Henry Arias and Billy Gerena that she did not trust their information. Only after she verified that information provided, that each in fact had been responsible for many additional crimes, including the federal drug charges, did she enter into cooperation agreements with Mr. Gerena, in July 1998, and with Mr. Henry Arias, in May 2001.

She began investigating and verifying the information supplied by Mr. Gerena and Mr. Arias, the focus of which was the drug conspiracy, by reviewing tapes of transactions and wiretaps. She found no inconsistencies in the information each provided. She also followed up on the statements regarding other crimes, including the murder of Mr. Cruz. In June of 1999, she obtained the transcripts from the criminal trial, as she was skeptical about Hector Gonzalez's innocence.

Mr. Gerena and Mr. Arias were required to testify publicly against fellow members of the Latin Kings. They had known these gang members for many years. They were subject to cross-examination regarding prior crimes. According to Ms. Friesen, there were no surprises for the prosecution.

In the summer of 1999, after the drug cases were largely resolved, the focus shifted to the Lemuel Cruz murder. The government wanted to identify the participants for a possible prosecution. As a preliminary step, the investigation attempted to gather the existing evidence. They decided to do a DNA analysis of the blood, as at the time of the criminal trial, only serology evidence was introduced. That serology test found that the blood on Hector Gonzalez's pants was consistent with the victim's blood type, and it was the serology test that was used to convict Hector Gonzalez.

As part of the investigation, Mr. Arias pled guilty to the murder in a cooperative agreement and a 5K1 letter [FN2] was issued to Mr. Arias. Ms. Friesen testified that: "We would not have been able to build a case against Mr. Hector Arias for his participation in the Lemuel Cruz murder but for his statement."

The cooperation of Mr. Arias led to twenty convictions.

Carlos Perez also was told that his information would be verified and the consequences of [*6]lying. His statements were consistent with the accounts of Henry Arias and Billy Gerena.

Facing a life sentence, Carlos Perez entered into a cooperation agreement.

Ms. Friesen became particularly interested to know if the blood on Hector Gonzalez's pants was that of Roberto Correa and Carlos Perez, as the witnesses had said. Prior to the DNA testing of the pants, she directed agents to visit Hector Gonzalez, who denied his involvement in the Lemuel Cruz murder and told the agents that the blood on his pants came from Roberto Correa and Carlos Perez.

Ultimately, the DNA test results were received. These results corroborated what Hector Gonzalez and others had said about the blood evidence.

These efforts of the United States Attorney's Office and the FBI led to the joint motion of the District Attorney's Office and defense counsel to dismiss the charges based on the DNA evidence.

Billy Gerena - by Video Conference

Billy Gerena testified by video conference from an undisclosed location, as he had been placed in the Witness Protection Program and given a new identity. The Court is not addressing his testimony regarding his present circumstances, other than to note that he has a family and gainful employment. He and Hector Gonzalez are cousins.

From 1995 to 1998, Mr. Gerena was a member of the Latin Kings and held the title of First Crown. On December 1, 1995, after attending a Latin Kings' meeting in Sunset Park, Brooklyn, he and several others, including Hector Gonzalez, went to a bar to celebrate his birthday. Hector Gonzalez had not attended the meeting because he was not a member of the Latin Kings.

That evening a fight broke out. Mr. Gerena stepped outside the bar and noticed that Roberto Correa had a broken nose. Mr. Gerena took out his knife, got bumped from behind, and accidently stabbed Christian Pacheco, a fellow member of the Latin Kings. He tended to Mr. Pacheco, and saw a pile of people coming out the bar's side door. He saw a big fight, saw Hector Gonzalez in the vicinity, and told Hector to help Mr. Pacheco. When he returned to where Hector Gonzalez was, he observed Hector tending to Roberto Correa; Hector Gonzalez had taken off his shirt and had put it around Mr. Correa's hand.

Mr. Gerena testified that Hector Gonzalez was not involved in the attack of Lemuel Cruz.

Mr. Gerena eventually was arrested and taken to the precinct. He was acquitted after trial.

After his release, he continued to be a member of the Latin Kings and continued committing crimes. In May,1998, he was arrested by federal agents on conspiracy to distribute narcotics and conspiracy to commit assault. Facing imprisonment of twenty to thirty years, he decided to cooperate. He participated in proffer sessions, and disclosed all the crimes he committed or had information about. He was told of the consequences of lying during the proffer sessions. He also was told that the federal agents would be investigating and verifying all his information.

He told them that Hector Gonzalez was innocent of the murder and that Hector Gonzalez was not a member of the Latin Kings. He further told them that during the criminal trial he observed the prosecution's use of blood evidence, and admitted that he did not provide information earlier because that information would not have helped him. All his co-defendants [*7]were convicted. After he was acquitted, he continued to sell drugs with Henry Arias. Mr. Gerena eventually pled guilty in Federal Court, pursuant to a cooperation agreement, and testified against other Latin Kings at trial. His sentence was reduced.

Henry Arias

Henry Arias is 33 years old and is currently employed as a union carpenter. He was

acquainted with Hector Gonzalez, as they grew up in the same neighborhood.

Mr. Arias was a member of the Latin Kings from 1995 to 1998, reaching the rank of Second Crown. He admitted to his involvement in Lemuel Cruz's death. On December 1, 1995, he recalls going to a Latin Kings' meeting around six or seven o'clock for about a half-hour. He decided to celebrate Billy Gerena's birthday at the bar on 7th Street and Third Avenue. A fight broke out outside the bar, where he joined the beat down of Lemuel Cruz, getting cut himself. He implicated other members of the Latin Kings who were involved in the fight.

He also remembers Hector Gonzalez, as he knew him from the neighborhood. He observed Hector Gonzalez standing alongside a dumpster that was approximately ten to twenty feet from the entrance of the bar.

He testified that Hector Gonzalez was not involved in the attack, and that Hector Gonzalez was not a member of the Latin Kings.

Henry Arias was not arrested by the police for his involvement.

In May, 1998, he turned himself in and began cooperating with the federal government. He met with Catherine Friesen and the FBI, and gave them information.

He explained his role and that of others in the Lemuel Cruz murder. He told them that Hector Gonzalez was not involved. He admitted his role in numerous robberies in his proffer sessions, and was keenly aware of the importance of being truthful and honest; he knew that if he lied he would not get a cooperation agreement and he would face a minimum of a life sentence in prison.

Henry Arias eventually pled guilty, pursuant to a cooperation agreement, to murder and various other charges. He testified that he knew he had to be truthful and honest so as not to jeopardize his cooperation agreement.

Henry Arias eventually received a 5KI letter that led to his sentence reduction. He is currently on supervised release.

Dr. Mechthild Prinz

Dr. Mechthild Prinz is presently the Director of the Department of Forensic Biology (department) with the Office of the Chief Medical Examiner (OCME). She has a master's degree in biology and a Ph.D. in human biology. She began working at OCME in 1995, as a supervisor in that department, performing and supervising DNA testing. She qualified and served, without objection, as an expert witness on DNA testing, the policies and procedures of OCME, and chain of custody.

The OCME is part of the Department of Health. The department is accredited by the American Society of Crime Laboratory Accreditation Board and New York State. It provides DNA testing on both deceased and living crime victims. Her department was continually in compliance with accreditation standards for chain of custody.

In 2001, the FBI requested that the department perform DNA testing on the homicide case of Lemuel Cruz. It was her department that had issued the report of April 16, 1996, used at the criminal trial, that showed that the evidence had been tested using serology methods and [*8]comparing the blood on Hector Gonzalez's pants with the blood of Lemuel Cruz. According to the serology report used in the criminal trial, five of the stains on Hector Gonzalez's pants could have come from Lemuel Cruz.

Between 1995 and 2001, DNA technology had advanced a great deal. In 1996, the blood stains were not tested for DNA. The 2001 tests were more sensitive and discriminating, and DNA testing on the blood stains was utilized.

In 2001, the blood of Carlos Perez and Roberto Correa was tested for DNA typing. The blood found on Hector Gonzalez's pants matched the DNA type for Roberto Correa and Carlos Perez. Significantly, the DNA type of Lemuel Cruz was not on the pants.

Christian Pacheco's clothing was analyzed and the blood stains found were consistent with his own, Lemuel Cruz and Roberto Correa. The blood on his shoes was determined to be from Roberto Correa and Lemuel Cruz.

The typical practice of the laboratory is not to test every single stain on an item of evidence, as it is not feasible. Rather, it is complicated, and they exercise their judgment, based on their hypotheses and information obtained in the testing, as to the appropriate number of stains to test in their sampling. This process is used in every case. Thus, the prior serology report had results on seven stains, and the DNA report had results on five of those seven stains.

Testimony Concerning the Chain of Custody

The following witnesses additionally testified to, and, to this Court's satisfaction, established, the chain of custody of the evidence that was tested: 1. Rosemary Anzalone, Deputy Director, OCME, who at the applicable time period was an Evidence Property Control Specialist and testified as to the duty to maintain the chain of custody of evidence received in sealed packaging; 2. Glendon Kirkpatrick, Acting Director of OCME, who in 2001 held the position of Evidence Property Control Specialist; he testified as to the procedure for establishing and maintaining the chain of custody of evidence; he further testified that the procedure was followed here; and 3) NYPD Detective James Papaemanuel, NYPD Detective Inspector, assigned to the Joint Terrorism Task Force, and was involved in investigation of the Latin Kings; he testified concerning the chain of evidence. Additionally, relevant testimony from two prosecution witnesses at criminal trials concerning the death of Mr. Cruz was offered and read into evidence: the testimony of Detective Alphonse Pascuale, who was a case investigator in the murder of Mr. Cruz; he took the clothing from the co-defendants and Mr. Gonzalez; and Mary Shanuda, a Forensic Analyst at OCME, who was ruled an expert in the criminal trial, who performed the serology tests on the clothing items at the criminal trial.

In Limine Motion and Preservation of Evidence

To the extent it is not clear on the record, the Court granted claimant's in limine motion (Motion No. M-75219). By notice of motion dated July 7, 2008 ( Motion No. M- 75219), claimant sought a ruling that the "chain of custody for Mr. Gonzalez's DNA-tested jeans is adequately established through the close of the 1996 criminal trial".

While defendant's counsel made various assertions concerning the chain of custody and preservation of evidence, defendant did not present any testimony, by way of expert or otherwise, in support of these assertions. Nor were these assertions supported by testimony elicited from defendant's cross-examination of claimant's expert and fact witnesses, or evidence in the record developed at this trial or at the criminal trial. The Court does not find any merit in defendant's [*9]attack upon the integrity of the evidence and the testing process used here. Indeed, defendant appears to be advancing a strange argument: that the evidence used by the DA to convict Mr. Gonzalez at the criminal trial beyond a reasonable doubt is not reliable enough to establish the chain of custody at this civil trial, where claimant bears the burden to establish innocence by clear and convincing evidence, and that the chain of custody and preservation of evidence as certified to by the same experts and fact witnesses that the criminal court used to overturn claimant's conviction and which the FBI and the DA rely upon in their prosecutions of criminal defendants, are not reliable enough for use in this civil trial. The good faith basis for these assertions is not clear to the Court.

The Court, in the exercise of its sound discretion and based on the record evidence, is more than satisfied that the integrity of the chain of custody as to the identity and condition of the evidence has not been compromised, and finds that reasonable assurances exist that the evidence was preserved in an unchanged condition between the conclusion of the criminal trial and the subsequent DNA testing in 2001.

Marc Mendez

Sergeant Marc Mendez was the State's only witness.

Sgt. Mendez has been a member of the New York City Police Department since 1996. Lemuel Cruz was his childhood friend. While he was in the police academy, he testified at the criminal trial as to the events of Mr. Cruz's death. At that time, he identified Hector Gonzalez as the one who jumped his friend, and Roberto Correa as one of the persons who attacked Mr. Cruz.

Sgt. Mendez testified that on December 1, 1995, he, his brother Juan Mendez, Raymond Gonzalez and Lemuel Cruz were drinking beer in Mr. Cruz's apartment. After an hour or so, they went to the bar on 7th Street and Third Avenue. They ordered beer and Mr. Cruz went to the bathroom. Within seconds, a fight occurred on the dance floor. He and his brother walked out of the bar to wait with Raymond for Mr. Cruz. As he walked out the front glass entrance door, the door shut and locked. He watched through the glass door and saw Mr. Cruz exit the bathroom and get jumped. He remembers hearing "get the Black guy" as Mr. Cruz was attacked.

The crowd shifted from the dance floor out the fire exit onto 7th Street, and continued to attack Mr. Cruz. Sgt. Mendez claims he observed Hector Gonzalez and Roberto Correa as part of the crowd who was attacking his friend. They were punching Mr. Cruz; there were approximately twenty-five young Hispanic men pounding and stabbing Mr. Cruz. Marc Mendez was scared and desperate for his friend, and he was focused on the people with knives. He testified that the entire incident could have taken forty-five seconds or could have taken one or two minutes.

Sgt. Mendez asserted at this trial that there was good lighting from a street lamp and from the light inside the bar, and that he was ten to twelve feet away. He moved to help Mr. Cruz, and got within five to seven feet of him, but was stopped by his brother. He then jumped into his car, which was parked directly across the street, and found a police car two blocks away. He followed the officer back to the bar, and found Mr. Cruz on the ground dying with multiple stab wounds.

He participated in a show-up at the scene. Sgt. Mendez testified in this trial that he was not sure whether he viewed Hector Gonzalez in the show-up. He admitted that at the police academy he learned that show-ups are extremely suggestive. He additionally admitted that after the show-up he was taken to the precinct, where, after an entire day and little sleep, he later [*10]viewed the lineups.

According to the statements made by Marc Mendez at the precinct, he saw a male Hispanic, with a white or off-white ski jacket with red and blue stripes, stab Mr. Cruz about the body. The male had black hair. There was another male, a Hispanic with black curly hair and pushed-back hairdo, who was armed with a butterfly knife. That individual had come out of the side door and was flicking the knife. Marc Mendez focused on the armed individual.

Although Marc Mendez told the police officers that he could identify two stabbers, he did not provide a description of Mr. Gonzalez to the officers.

He viewed the lineup after many hours in the precinct and with little or no sleep, and with difficulty focusing on the lineups.

In the first lineup, Marc Mendez picked out two fillers.

In the second lineup, he picked out Mr. Gonzalez, asserting that he had been on top of Mr. Cruz.

At the third lineup, he picked out a filler as being on top of Mr. Cruz .

A total of four fillers were picked out in the first four lineups.

He was certain of his identification at each lineup.

In the end, he identified Roberto Correa and Hector Gonzalez.

At this trial, Sgt. Mendez asserts that he is 100% certain that it was Hector Gonzalez who was on top of his friend.

At the interview with the District Attorney (DA), he described Hector Gonzalez as being on top of Mr. Cruz, seeing his fist going up and down, seeing his face from the back of the crowd further down 7th Street, and that he was unable to tell whether Mr. Gonzalez was wearing a jacket or a hat.

He provided a sworn statement to the DA the night of Mr. Cruz's murder, testified before the Grand Jury, and testified at the criminal trial.

Prior to testimony in this trial, Sgt. Mendez was deposed by claimant; he was represented by an attorney from the City of New York (City) (claimant also instituted a related action against the City). He also voluntarily met twice with the State's counsel.

As with all the witnesses, the Court closely observed Sgt. Mendez's demeanor on the stand and weighed his testimony. Sgt. Mendez's genuine anguish at the circumstances surrounding Mr. Cruz's murder were apparent throughout his testimony. Sgt. Mendez stated that he did not want to see any photographs of his friend "stabbed-up". He testified that he had been afraid at that time that he might be killed by a man carrying a knife.

He exhibited hostility towards claimant's attorney, and his testimony during cross-examination was very contradictory. He also made several corrections to his direct testimony to bolster his identification. Further, he appeared to be attempting to make his testimony seem more plausible, and, most likely unintentionally, tried to enhance the facts so as to make it appear more likely that his identification of Hector Gonzalez was correct.

A few illustrative examples follow. To this trier of fact, a review of Exhibit 35 shows that the location from where this witness first saw Mr. Cruz was more than forty feet away, not ten to twelve feet as he testified at this trial.

When Marc Mendez viewed an exhibit of a photograph of the scene at the criminal trial, he testified that it accurately reflected the light at the scene. Yet, at this trial, he testified on direct that it was lighter and brighter than that depicted in the photograph. At this trial, he [*11]initially denied that from where he was standing, near the lamppost, he was looking into darkness. Then, contradicting his prior testimony, he admitted he was looking into the darkness all the way down the length of the building.

At this trial, he asserted that he was focused on Mr. Cruz during the attack. In his prior statements and deposition, he stated that he was more focused on the stabbers.

It was clear to this trier of fact, and as demonstrated during cross-examination, Sgt. Mendez understandably remains angry and continues to experience strong emotions regarding his friend's murder. Additionally, he testified candidly that he had been willing to put himself in harm's way without a weapon to help his friend, that he felt badly he could not help Mr. Cruz, and that he wanted to do whatever he possibly could to do so.

At this trial, he stated he could not actually observe who said what, but, at the criminal trial, he identified Hector Gonzalez as the person screaming "Latin Kings". He denied that he made any misrepresentations, but admitted that as a result of his emotional condition and the chaos, he did not have a clear perception of what happened. As the cross-examination continued, the Court observed that Sgt. Mendez got more and more hostile, and the Court notes that in responding to questions posed during cross-examination, he wanted only to address his perception that he saw Hector Gonzalez attack his friend.

Discussion

The focus of this Court's inquiry at this trial is whether claimant proved, by clear and convincing evidence, that he did not commit any of the acts that were charged in the accusatory instrument. Here, clear and convincing evidence is evidence that satisfies this Court, as trier of fact, that it is highly probable that claimant is innocent of the underlying charge; that evidence cannot be equivocal, contradictory or open to opposing inferences. See Acosta v State of New York, 22 AD3d 367; Alexandre v State of New York, 168 AD2d 472; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211.

The Court closely observed the demeanor, determined the credibility, and weighed the testimony, of the witnesses, and weighed all the evidence.

Before the Court is the testimony of claimant, who has always maintained his innocence and, to this trier of fact, testified credibly and candidly. Contrary to defendant's argument, the Court does not find the testimony scripted or pat. The Court also has the testimony of Mr. Arias and Mr. Gerena. These witnesses testified against their penal interest, did not hesitate to implicate others in Mr. Cruz's murder, and had no self-interest in testifying for Mr. Gonzalez. The information they supplied to the FBI was viewed with suspicion and found convincing by the FBI only upon a thorough investigation. This Court independently found their testimony convincing.

The Court also found highly credible and persuasive the testimony of former Assistant United States Attorney Friesen and Dr. Prinz, as well as Ms. Anzalone, Mr. Kirkpatrick, and Detective Papaemanuel. These witnesses had no self-interest or motivation, and were impartial. The deposition testimony accepted into evidence was persuasive to this Court.

The State's cross-examination of these witnesses failed to adduce any testimony that defeats claimant's showing, by clear and convincing evidence, that he was innocent.

The State called only one witness, Sgt. Mendez. To this trier of fact, there is little doubt that Sgt. Mendez genuinely believes that Hector Gonzalez was involved in the murder of his friend. That belief, however, is not supported by a dispassionate weighing and analysis of the [*12]facts and this record. Sgt. Mendez's belief was formed before he received his complete police training, before he had police experience, where the victim was known to him and where he was personally involved. The inherent stressfulness of the event, his focus, the lighting conditions, the distance, and the method, manner and misidentifications involved in the show-up and four lineups, alone and together, render Sgt. Mendez's identification, under these circumstances, unreliable and not persuasive.

The State appears to be arguing that claimant has failed to meet his burden because: he failed to come to the rescue of Mr. Cruz and the State otherwise does not find Mr. Gonzalez to be praiseworthy in his actions or character; while the expert and fact witnesses demonstrated that the DNA testing was reliable, the State is not satisfied and has some unanswered assertions and remaining suppositions; the State finds persuasive Sgt. Mendez's lineup identification of Mr. Gonzalez, despite the taint of the show-up identification and his identification of fillers, because as a result of the four lineups he did identify Mr. Correra correctly.

These arguments, however, fail to defeat claimant's evidentiary showing. To this trier of fact, Hector Gonzalez has shown, by clear and convincing evidence, that he is innocent. Accordingly, defendant is liable to claimant under § 8-b of the Court of Claims Act.

A damages trial shall be scheduled as soon as practicable. A conference is scheduled for February 17, 2009, at 10:00 a.m.

The Clerk of the Court is directed to enter interlocutory judgment against the defendant on liability. Footnotes

Footnote 1:In a proffer agreement, sometimes referred as a Queen-for-a-Day agreement, the government agrees that the statements made by cooperating witnesses will not be used against them in their direct case trial. On the other hand, if they lie or it is proved that they lied, the statements could be used against them. It is a precursor to a cooperation agreement.

Footnote 2:² A 5K1 letter is the letter that the U.S. Attorney provides to the sentencing judge if the cooperating witness has fulfilled his or her obligation under the cooperation agreement. The 5K1 letter permits the judge to make a downward departure from the mandatory sentence.