Eric Smokes - Perjury / Prosecutor and Police Misconduct.

Smokes, Eric murder NRE: perjury/false accusation, prosecutor misconduct, police officer misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence, knowingly permitting perjury, witness tampering or misconduct interrogating co-defendant

[564:20] 1st Dept. 9/13/90 affirmed

"[Smokes'] conviction was supported by the weight of the evidence. Three acquaintances of [Smokes] identified him as the assailant who viciously knocked the 70-year-old victim to the ground, setting up the robbery...[Smokes] presented an alibi...The eyewitness version of the crime was supported by a fourth witness, who claimed that [Smokes], one day after the incident, implicated himself in a killing.

"We also find no merit to [Smokes'] contention that the proof of similar prior uncharged crimes committed by [him] as his accomplice were improperly admitted."

from NRE synopsis (by Ken Otterbourg):

"Just a few minutes after midnight, on New Year's Day 1987, Jean Casse was beaten and mugged on West 52nd Street in Manhattan...Casse was 71 years old, a tourist from France visiting the city with his wife. He died at 9 a.m. at St. Luke's-Roosevelt Hospital.

"The Casses had been on their way to Times Square, a few blocks south, when the attack occurred outside Ben Benson's, a popular steakhouse.

"James Head, a waiter at the restaurant, told police that he saw Casse being attacked as he lay on the ground. Head said he saw three or four young Black men surrounding Casse. One of the assailants he described as a 'tall skinny kid with a black ski parka and ski cap,' and a 'smaller kid' with a blue jacket straddled Casse and went through his pockets, taking his billfold.

"Dan Melkonian and Eloise Yellen, who were co-workers, told police they saw part of the attack as they walked down West 52nd Street. Yellen said she was about five feet away from Casse and saw him get hit in the jaw. She said she did not get a good look at the assailant's face but described him as a tall, skinny Black male with a short afro. She and Melkonian each estimated his height as about 6'1" or 6'2".

"Throughout New Year's Eve and into the next day, the police had fielded calls and complaints about large groups of young Black men attacking and robbing people in and around Times Square and elsewhere. In one incident, which took place on the subway around 1 a.m., a group of young men were said to have chanted 'Howard Beach,' an apparent reference to the racially motivated shooting death 12 days earlier of a young Black man in the Howard Beach neighborhood of Queens.

"Detective George Delgrosso, with the Midtown North Precinct of the [NYPD], led the investigation. He would later say that his first impression of the case was a 'loser,' with a lack of witnesses and a contaminated crime scene.

"On January 2, Delgrosso caught an apparent break. The police in Midtown...had arrested four young men -- including [16-year-old #1] -- during an attempted robbery on West 47th Street. [He] told Delgrosso that he had talked with an acquaintance named Eric Smokes earlier that day and asked Smokes, whom [he] initially referred to as 'Smokey,' if he was going into Manhattan. According to [16 y/o #1] Smokes said he wasn't because he 'had caught a body,' meaning that he thought he had killed someone. In the interview, according to Delgrosso, [he] described a method of robbery used by him and his friends that appeared to match the attack on Casse.

"[16 y/o #1] didn't provide police with an address for Smokes. Smokes had never been arrested, so the police had no photo for [16 y/o #1] to review. Instead, on January 3, Delgrosso had [him] look at photos of possible associates of Smokes, who was 19 years old. Among the people [16 y/o #1] identified was [16 y/o #2], who [he] said was Smokes's best friend. [He] said that he, Smokes, and [16 y/o #2] had committed robberies together, although he did not offer any specific instances.

"Later that day, the police received an anonymous tip that Casse's assailant was a man named Lee Koonce. The caller said that Koonce was at an apartment in the Bronx, and that he still had Casse's wallet. There is no indication in police records that officers followed up on this tip. Delgrosso would later testify the tip was discounted because the caller referred to a wallet, rather than a billfold."*

[* This contention is absurd, given that the words 'wallet' and 'billfold' are synonymous.]

"The police brought Smokes in for questioning at around 10 p.m. He was not read his Miranda rights.* Smokes, who lived in Brooklyn, said he had gone into Manhattan with [16 y/o #2], Niles Williams, Michael Barry, and Todd Carson at about 10:30 p.m. on New Year's Eve. He said they were at 47th Street when the ball dropped, and then began making their way south, toward Madison Square Garden."

[* This was also true for Nickel. ]

"Delgrosso asked Smokes whether he saw any robberies or rip-offs that night. Smokes said he saw 'a lot of craziness,' including a fight and a shooting. According to Delgrosso, Smokes agreed to have his photograph taken the detective told him 'he had nothing to worry about.'

"Around midnight, Delgrosso left Smokes with another officer and picked up [16 y/o #2] at the apartment where he lived with his mother. [He] said he was with Smokes and the other young men on New Year's Eve. Delgrosso received permission from [his] mother to bring her son in for questioning.

"[16 y/o #2] was not read his Miranda rights and was questioned without a parent present. His account to Delgrosso lined up with the statement made by Smokes. Delgrosso then falsely told [him] that Smokes had admitted to hitting someone on New Year's Eve. [16 y/o #2] said it wasn't an old man, but a young guy on 41st Street.

"Delgrosso then returned to Smokes and told him about [16 y/o #2's] statement. According to Delgrosso, Smokes now admitted to hitting somebody, but he said he didn't rob that man or Casse.

"Delgrosso went back to [16 y/o #2] and tried to get him to cooperate with the investigation and admit to being on West 52nd Street. The interviews were not recorded.* During the interrogation, [he] wasn't placed under arrest, but he was also never told he was free to leave until the police drove him home."

[* Also true of the Nickel case.]

"While Delgrosso was interviewing [16 y/o #2], Smokes had told another officer that an acquaintance had said he had mugged someone and taken a lot of money. Smokes allegedly said he would ride around in a surveillance van and point this man out to the police. It's unclear whether this happened, but Smokes was released early on the morning of January 4.

"On the morning of January 8, police brought in [16 y/o #3] as a witness. The records disclosed by the prosecution at trial didn't indicate how [he] came to their attention.

"A detective told [16 y/o #3] that he was a possible suspect and falsely said that he had [16 y/o #3's] photograph, which he planned to show to other witnesses to see whether they could place him at the crime scene. According to the detective, [he] looked at about 25 photographs of possible suspects, and selected a picture of someone named 'Eric' that he had scene walking from the crime scene. He also was said to have picked a photo of [16 y/o #2] as being the young man he saw standing over Casse and taking the elderly man's money.

"[16 y/o #3] had said he had been at Times Square with his cousins, [16 y/o #4] and 18-year-old Andre Houston, and Tyrone Bess. Police brought those three in to look at photos, although the young men would later testify that officers said they themselves might also be considered suspects. Bess could not make an identification. The Houston brothers each identified Smokes and a young man named Robert Moore, who was already in custody on an unrelated robbery. Police arrested Smokes and [16 y/o #2] that day. The police then conducted live lineups with [16 y/o #2], Smokes, and Moore.

"Bass was unable to make any identifications. The Houston brothers now identified [16 y/o #2] from his lineup. So did [16 y/o #3], although he did not identify Moore in his lineup. Andre and [16 y/o #4] continued to claim Moore was present during the robbery.

"[The Houston brothers], and [16 y/o #3], each selected Smokes from his lineup. Yellen did not make an identification from the Smokes lineup.

"A grand jury indicted Smokes and [16 y/o #2] on January 12, 1987...Prosecutors did not ask the grand jury to vote on an indictment against Moore.

"The next day, police arrested 19-year-old Kevin Burns on a probation violation and also recovered several weapons. During an interview with the police, Burns claimed to have information about the Casse murder. Initially, he said that a man named 'Guy Tony' had hit Cass with a plastic bat or horn. But later, on June 30, 1987, Burns told Delgrosso that his previous statements were false, and he implicated Smokes and [16 y/o #2] in the robbery and murder.

"By then, the pre-trial hearings for Smokes and [16 y/o #2] were underway. They had moved to sever their trial, but Justice Clifford Scott of [Manhattan]...denied the motion, and the joint trial began on July 6, 1987.

"The state sought to introduce evidence of uncharged crimes allegedly involving Smokes and [16 y/o #2]. Attorneys for Smokes and [16 y/o #2] cried foul and moved to dismiss the case, arguing that prosecutors -- without permission from a judge -- had already presented [16 y/o #1's] testimony about this issue to the grand jury. Justice Scott denied the motion, and said that [16 y/o #1] could testify about these actions, because they went to motive and intent.

"There was no physical evidence connecting Smokes and [16 y/o #2] to the crime. In addition, Smokes did not match the description of the principal assailant given by several witnesses. He was 5'10" and 230 pounds, not 'tall and skinny.'

"[16 y/o #1] and the Houston brothers were all arrested and compelled to appear at trial as material witnesses.

"[16 y/o #4] testified that he saw 'Smokey,' whom he had seen hanging out at the Albee Square Mall in Brooklyn, hit Casse with a left-handed blow. He testified that he saw [16 y/o #2] leaning over Casse but said he couldn't see whether [16 y/o #2] was rummaging through his pockets.

"[16 y/o #4's] testimony had several holes. He said he was at 42nd Street when the ball dropped at midnight, and there was no explanation how he made it through more than 10 crowded city blocks to see Casse's attack at 12:03 a.m. He also testified that he saw Casse and his wife leave the restaurant just before the attack, but the couple hadn't been in the restaurant. They were simply walking down the street.

"[16 y/o #4] testified that he and his brother and their friends made it to Manhattan from Brooklyn at around 11 p.m. (His brother had testified they arrived around 8 p.m.) [16 y/o #4] said he saw Smokes hit Casse and then saw other people in the crowd, including Warren, go through Casse's pockets. He testified on direct examination that he and some of his friends ran and then returned to the crime scene to see Casse being loaded into an ambulance. On cross-examination, he said he came back alone.

"[16 y/o #4] testified that he saw Casse get hit and fall to the ground. He said that he saw Smokes walk away after Casse fell but that he did not see Smokes hit the man. [He] testified that he saw [16 y/o #2] take Casse's wallet. He said he recognized both Smokes and [16 y/o #2] from Albee Square.

"Melkonian testified for the state. He said he had not clearly seen the face of the man who hit Casse, but the man was taller than he was. Melkonian was 5'11". (Smokes was 5'10", and [16 y/o #2] was 5'8".)

"Melkonian also testified that the police never asked him to view a lineup. Similarly, Renee Casse testified that although she did not see her husband get hit, she saw a man going through his pockets. She said she pulled on that man's hair and tried to stop him. She testified that she didn't see his face and never viewed a lineup. In addition, Casse testified that her husband was bleeding badly as he lay on the sidewalk. There was no indication that the police examined the clothing worn by Smokes and [16 y/o #2] on New Year's Eve.

"[16 y/o #1] testified that he was around Times Square with a relative and several friends, including Edward Samuels, when he ran into Smokes sometime before midnight. He said he was at 43rd Street or 44th Street from 11:45 p.m. to 12:10 a.m., but was near the restaurant just a few minutes later and saw Smokes again, now with [16 y/o #2]. [16 y/o #1] said he watched Smokes hit Casse in the face. He also said that Smokes had stolen Casse's wallet before he and [16 y/o #2] fled through a nearby passageway. Burns also said that he had spoken with Smokes 'quite a few times' since New Year's Eve and that Smokes had made vague threats against [16 y/o #1] if he testified.

"Delgrosso, the lead detective, testified about the investigation. He said that [16 y/o #1], despite being arrested for a similar crime, was never considered a suspect. He also said he hadn't followed up on the initial statements from [16 y/o #1] until more than five months after they were made and that [his] accounts often contradicted each other.

"Detective Richard Chartrand, who had received the tip about Lee Koonce, testified about his role in the investigation.

"Attorneys for Smokes and [16 y/o #2] had wanted to ask Chartrand about the timing of the tip, to show that the police had ignored a solid lead at the beginning of the investigation. But Justice Scott barred that line of inquiry. 'I'm not going to let him tell you about every little rumor or every little thing he heard, no way,' he said.

"[16 y/o #1] testified about his conversation with Smokes on January 2 and said another man named Edward Williams was also present at the time. [He] said that he and Smokes and [16 y/o #2] had committed 12 or so similar robberies. During cross-examination, [he] was unable to provide any specifics on these alleged crimes. Although [he] was under a cooperation agreement with prosecutors, he said he was still committing robberies at the time of the trial.

"The jury began deliberations on July 14, 1987. On July 16, it told Justice Scott that 'We would like the court to know that we did not come to a decision lightly but with great emotional turmoil.'

"The jury convicted both Smokes and [16 y/o #2]..."

"Both men appealed their convictions, which were upheld in 1990. [16 y/o #2] filed a petition for a writ of habeas corpus...in 1997. It was denied in 1999.

"In 2005, [16 y/o #1] wrote to Smokes in prison and said he had testified falsely against him and [16 y/o #2] because of his addiction to cocaine and pressure from police and prosecutors. [He] followed up with an affidavit in 2007, and in 2016.

"[16 y/o #2] was released on parole on December 19, 2007. Smokes was paroled on July 5, 2011.

"On July 17, 2017, Smokes and [16 y/o #2] moved to vacate their convictions based on newly-discovered evidence, actual innocence, and prosecutorial misconduct. Both men were now represented by James Henning.

"The motion was based on numerous affidavits by witnesses and others about the testimony at trial and the investigation into the crime. They included:

"Edward Williams said in an affidavit that [16 y/o #1], whom he had once considered to be his best friend, had testified falsely about the day after the robbery-murder. Williams said he was with [16 y/o #1] the entire day and that they never ran into or spoke with Smokes.

"[16 y/o #1] said in his own new affidavit that he falsely testified at the trial. He said police and prosecutors fed him information about the crime and told him he would never have to testify. [He] said that because he wasn't close to either Smokes or [16 y/o #2], he didn't feel bad about falsely implicating them.

"Barry Hall said in an affidavit that he was with Smokes and [16 y/o #2] on New Year's Eve and vouched for his friends' whereabouts that night. The police listened to his statement but tried to intimidate him.

"Moore said that an [ADA] approached after the grand jury failed to indict him and said she could help him clear his name on the other charges he was facing if he testified against Smokes and [16 y/o #2]. Moore said he told the prosecutor that he hadn't been present and didn't know either man.

"Burns said in an affidavit that he had testified falsely and never saw Smokes and [16 y/o #2] attack Casse. Burns said he was actually in Brooklyn at the time of the crime. Burns said he implicated Smokes because of a longstanding dispute between the two men and a chance to help his own legal problems. He also said that police and prosecutors fed him information about the case and that he was given cigarettes in exchange for his testimony.

"[16 y/o #4] recanted his testimony as well. He said that he and his cousins didn't witness the crime they came upon Casse after he was already lying on the street. He also said that neither he nor his cousins knew Smokes or [16 y/o #2].

"The [Manhattan DA's] Office opposed the motion. Justice Stephen Antignani held hearings in 2018 and 2019, receiving testimony from the witnesses and others who said they had falsely testified about the evens of New Year's Eve. [16 y/o #3] had died in 2017.

"The state said the affidavits and testimony were unreliable. It ridiculed Burns's claim that someone had bought him cigarettes after he testified as 'bad fiction.' Jennifer Gonnerman, a reporter for the New Yorker magazine, found a receipt from the prosecutor for cigarettes on the day that Burns testified in the city's municipal archives.

"Neither Smokes nor [16 y/o #2] had testified at their trial. At the hearing, [16 y/o #2] said he lied to the parole board and falsely said that he committed the crime because he believed he would otherwise not be released.

"Smokes testified that he also had made false statements to the parole board in order to be released from prison. He said that after his release, he had reached out to [16 y/o #1] and others involved in his conviction to find out the truth. Smokes noted that while in prison, he had received a bachelor's degree from Mercy College and a master's degree from New York Theological Seminary.

"On cross-examination, Smokes said that if he was successful in vacating his conviction, he planned to sue the city for damages. He said he was aware of the awards received by members of the Exonerated Five, who had been wrongfully convicted in 1990 and exonerated in 2002. During his testimony at the hearing about the investigation, Delgrosso said that nine years before the Casse murder, he had assaulted a fellow officer in a bar in Brooklyn. To avoid arrest, he and others made up a story about being attacked by neighborhood kids. When the truth finally came out, Delgrosso received a five-day suspension.

"On January 14, 2020, Justice Antignani denied the motion for a new trial. In a 123-page ruling, he said that the testimony from the recanting witnesses was 'misleading and evasive' and that the statements by Wiliams and others were filled with holes. He said that Delgrosso's misconduct related to the bar fight would have had little bearing on how the jury weighed his truthfulness about the murder investigation. Moreover, Justice Antignani said, the defense could have asked for information about the detective's work history.

"The ruling also said that the police had not coerced witnesses into making false statements and that the prosecutors had not pressured witnesses to testify falsely.

"Finally, the ruling said that Smokes and [16 y/o #2] had not met their burden of proving actual innocence. The ruling noted the testimony of the Houston brothers that placed Smokes and [16 y/o #2] at the crime scene. It also said their statements to the parole board were strong evidence of guilt, and he noted their financial incentive to have their convictions vacated.

"Smokes and [16 y/o #2] moved for permission to appeal the ruling. Their filing said that the state had withheld information about [16 y/o #4]. He had recanted to investigators with the [DA's] office in early June 2018, then quickly repudiated his recantation a few days later. The state did not disclose these conversations to the defense, and Houston was never called as a witness at the hearing for a new trial.

"On June 25, 2020, the...First Department...granted a request by Smokes and [16 y/o #2] to appeal the ruling. On April 4, 2022, prior to the filing of the appeal itself, the [DA's] office, now headed by Alvin Bragg, and Henning entered into a collaborative agreement to re-investigate the case, based in part on other documents disclosed by the state in this latest round of appeals.

"On October 6, 2023, the [DA's] Post-Conviction Justice Unit (PCJU) filed a letter with Justice Antignani that said it would consent to an expedited defense motion to vacate the convictions. '[We] do not take the decision. . .lightly, and come to this court with significant deference to both the jury verdict and the prior litigation,' the letter said. 'However, based on the newly discovered evidence, [we] believe that the only legally correct and just outcome is to move to vacate these convictions.'

"The letter outlined the results of the investigation, which included the discovery of undisclosed evidence and additional witness interviews.

"The defense motion, filed on November 15, 2023, gave additional details and said the state's actions had led to two wrongful convictions.

"During the hearings on the motion for a new trial in 2018-2019, the state had produced previously undisclosed documents indicating that the police had twice interviewed a man named George Samuels, who Burns had said was with him on New Year's Eve. Delgrosso testified at trial that he showed Samuels some photos but couldn't recall the substance of the interviews. The police records contained no notes of these interactions.

"In a joint interview with the defense and prosecutors in 2022, Samuels said he was with Burns most of the night and knew Smokes and [16 y/o #2]. He said that he and Burns never made it up to West 52nd Street. Samuels said he told the police that Burns's account was false. Samuels had previously told a defense investigator that the police threatened to implicate him in the murder.

"The defense motion said that the state had failed to tell attorneys for Smokes and [16 y/o #2] about the interviews with Samuels, and that prosecutors failed to correct false testimony by Burns about who he was with on the night of the murder. Justice Antignani had discredited [16 y/o #4's] recantation, but the new review said additional documents gave the recantation more weight. [16 y/o #4] said he was made to feel like a suspect, not a witness, and that he named Smokes and [16 y/o #2] to avoid getting arrested himself. Newly discovered police notes show that [16 y/o #2] gave detectives names of the people who could corroborate his statement that he was not involved in the crime. They also appeared to support [16 y/o #4's] statement that he was told [16 y/o #2's] name and shown his picture bfore making an identification.

"The re-investigation also revealed how police found [16 y/o #3]. His mother called a police officer she was dating after finding newspaper clippings about the Casse murder in her son's bedroom. That officer then got in touch with Delgrosso.

"This information was not included in Delgrosso's records, although the boyfriend had submitted a separate report. At trial, [16 y/o #3] testified falsely that he didn't know about this chain of events, and the prosecutor failed to correct this testimony, the motion said

"The motion and letter also said that [16 y/o #4] had reasserted his recantation. [He] said in an interview with Henning and members of the PCJU team that the police told him when he was questioned that 16 y/o #1 had already made an identification, and that if [16 y/o #4] didn't get on board he could be charged in the murder. Significantly, [he] said in the interview that he didn't know Smokes or [16 y/o #2] and had never seen them before going to the police station.

"'A central aspect of the [prosecution's] case was the identification witnesses' supposed familiarity with the defendants,' the motion said, claiming that these false relationships were the result of coercive police interviews, supported by incomplete record-keeping and dissembling of the officers during their trial testimony. 'As [16 y/os # 3 and 4] have both acknowledged, this familiarity was a fabrication.'

"The re-investigation also found that prosecutors failed to disclose their efforts to investigate an alternate suspect known as J.S. Burns had mentioned this man in an early interview with police but had later retracted that accusation. It also found that the state failed to disclose other evidence: a transcript of a controlled call that [16 y/o #1] made to [16 y/o #2] on January 3, 1987, and assistance he received with an unrelated charge [he] received after testifying before the grand jury. Separately, the re-investigation found that Burns had testified falsely about his criminal record.

"In a response, the state said it did not agree with everything in the defense motion but that it still supported vacating the convictions and dismissing the charges against Smokes and [16 y/o #2].

"On January 31, 2024, Justice Antignani granted the motion for a new trial and dismissed their charges. In the order, he said that the new information about Samuels, the coercive tactics used on [16 y/o #4], and an alternate suspect warranted a new trial, four years after he denied their previous motion.

"'Thirty-something years later, you are still fighting for your right, for a court to say to you that those convictions were not warranted, and so today to you I am going to grant that,' he said.

"In a statement, Bragg said: 'Eric Smokes and [16 y/o #2] lost decades of their life to an unjust conviction. I am inspired by the unyielding advocacy of Mr. Smokes and [16 y/o #2] and hope that today's decision can finally bring them a measure of comfort and justice.'

"Speaking at a news conference later that day, Smokes said the convictions had been the result of 'tunnel vision.'

"'You don't try to pressure young people,' he said. 'If you just follow the basic steps of police work, you'd get the job done.'

"In February 2024, Smokes filed a claim in the New York Court of Claims seeking compensation for his wrongful conviction."

[All emphases added unless otherwise noted.]