Danny Sarita - Perjury / False Accusation / Prosecutor Misconduct

Sarita, Danny; assault; NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpaory evidence

[909:442]; 1st Dept. 10/26/10; affirmed

"[T]he verdict was not against the weight of the evidence...The evidence established that [Sarita] cut the victim's face with a sharp object."

from NRE synopsis (by Maurice Possley):

"In the early morning hours of November 10, 2007, 25-year-old Danny Sarita left Melodia, a nightclub on 207th Street in far north Manhattan, after working the night as a DJ.

"A large crowd of people were milling about as the club closed down. On the way out, the mother of Sarita's son confronted Sarita. Witnesses told police that the woman, who had been drinking, was cursing at Sarita and rushed toward him. Sarita brushed her aside and the woman fell to the pavement. Wilfredo Hernandez, who had left the club with the woman, exchanged words with Sarita and walked away.

"At about that time, an unrelated fight among several men erupted on the street nearby. During the brawl, 24-year-old Giovanny Mercado was slashed in the face.

"Later that day, Sarita was told that police wanted to speak with him about the brawl. When he went to the precinct station, he was put in a lineup and was identified by Wilfredo Hernandez* and his sister, Yessenia Hernandez, as the man who slashed Mercado."

[* Remember: This is the guy who'd earlier 'exchanged words' with Sarita, apparently upset that he'd shoved the mother of his (Sarita's) son. Also, as we shall see below, he initially refused to identify anyone.] p> "Sarita denied that he was involved in the fight...He was arrested...He testified before the grand jury and denied being in the fight. Sarita was later re-indicted on a second charge...based on an allegation that he aided others in the assault on Mercado.

"Sarita went to trial in [Manhattan] in March 2009. Wilfredo Hernandez testified that he and Mercado and three other friends were at the nightclub to celebrate Yessenia's birthday. Wilfredo said the fight began when someone punched Mercado and knocked him to the ground. Although Mercado sustained a single slash wound to the face, Wilfredo said he saw Sarita lift him up by the waist and make a number of jabbing motions* at Mercado's face with a shiny object."

[* So...Unless Sarita somehow 'missed' Mercado's face in all but one of his slashing attempts, Wilfredo Hernandez is a liar.]

"Mercado testified that he was punched, knocked down and then someone -- he did not know who -- slashed his face.

"Yessenia testified that Sarita stabbed Mercado and then made a derogatory remark about him as he lay bleeding on the ground. Sarita's attorney suggested during cross-examination that Yessenia and Wilfredo targeted Sarita because Wilfredo and Sarita had exchanged angry words outside the nightclub just before the brawl erupted. Under cross-examination, Yessenia and Wilfredo both admitted they were highly intoxicated when they left the nightclub because they had smoked marijuana before coming to the club and drank heavily throughout the night.

"A police officer testified that Wilfredo Hernandez was drunk, belligerent and uncooperative at the scene, and initially refused to identify anyone who was involved in the fight. A police officer said that one witness at the scene said that the person who slashed Mercado had closely cropped hair. Sarita wore his hair in braids.

"A security guard testified that he saw Sarita in the crowd outside the club, but did not see him fighting. A video of the street taken from the club during the incident showed people outside the club involved in a brawl, but Sarita was not visible."

"On March 24, 2009, the jury acquitted Sarita of the...assault charges but convicted him of the...gang assault charge."

"Sarita's appeal was denied in December 2010. In 2011, defense attorney Peter Smith filed a motion for a new trial based on statements from three witnesses who said they were at the scene and that Sarita was not involved in the fight. Two of them said that they told police and a prosecutor that Sarita was not the man who slashed Mercado. The motion claimed that the prosecution had failed to disclose the statements to Sarita prior to his trial.

"After the motion was filed, the Conviction Integrity Unit of the [Manhattan DA's] Office re-investigated the case, interviewed the three witnesses and located a fourth witness who also said that Sarita was not involved in the fight.

"In April 2012, the prosecution filed a motion requesting that Sarita's conviction be vacated. On April 16, 2012, the conviction was vacated, the charge was dismissed and Sarita was released.

"Sarita filed a claim for compensation with the New York Court of Claims and settled for $450,000."

[All emphases added unless otherwise noted.]