Frank & Adam Pejciovic- Mistaken ID / Police Misconduct

Pejcinovic, Frank AND Adam; assault; NRE: mistaken witness identification, police misconduct, withheld exculpatory evidence, misconduct that is not withholding evidence

Suggestibility issues

[571:245]; 1st Dept. 6/18/91; reversed, due to illegal arrest and Brady violations

"On July 28, 1986 at approximately 4:30 P.M., Ramon Rivera and his friend, Pedro Molina, two Spanish-speaking Puerto Ricans, were attacked near the intersection of 188th Street and Arthur Avenue in the Bronx. Someone threw a glass bottle at them; but when they endeavored to ignore the provocation, Rivera observed a person hit his companion with a baseball bat. Molina fell to the ground, and Rivera, in order to protect the other man, threw himself on top of Molina. After Rivera had himself absorbed three blows from the bat, he was shoved up against a car about three times. That evening at St. Barnabas Hopital, the less injured of the two complainants, Rivera, described the perpetrators to Police Officer Quinn with the assistance of unofficial translators. The officer's ensuing report stated as follows: '(Perp. #1) male, white, age 16, height 5'11", weight 160 lbs. with brown medium length hair. (Perp. #2) works in Carvel -- 187th Street and Cambreling Ave., male, age 16, height 5'7", eyes green, hair blonde, medium length.' Detective Golub, also relying upon unofficial interpreters reinterviewed Rivera later that same evening and noted in his report that 'Rivera stated that he has seen one of the subjects. . .a few times within the past few weeks at the Carvel store. . .Rivera describes the subject as a male/white/16 yrs old/5'7"/150 lbs/green eyes/blonde medium length hair. He describes the subject with the baseball bat as a male/white/16 yrs old/5'11"/160 lbs/brown medium length hair.'

"Following his discharge from the hospital that same night, Rivera went to the precinct house and informed Detective Golub, again through interpreters, that he had just seen one of his assailants at the Carvel store and that a blue Cadillac driven by the bat-wielder was parked around the corner from that store. He advised Detective Golub and his partner that the youth with the bat was a white male, 16 years of age, 5'11" tall and having medium length hair. It should be noted that Rivera's subsequent depiction of the attackers varied from his initial ones, and at trial Rivera testified that the bat-wielder had a strong muscular build, was approximately 5'7" to 5'9" tall with short curly hair and skin that 'looked. . .Puerto Rican.' The second person was detailed by him as being a skinny white about 5'10" tall with hair that was 'a little bit straight,' while a third culprit was a blond 'American' having 'skinny, straight hair' and light eyes.

"As a consequence of Rivera's account, one Albert Giacoio was arrested at Carvel, and a stakeout of the blue Cadillac was undertaken by the police on Detective Golub's orders that any white male entering the vehicle was to be brought in for investigation. The surveillance of the automobile resulted in the apprehension of...Adam and Frank Pejcinovic and their cousin Dennis Kolasinac, who was later released; all three are Caucasians of Yugoslavian extraction. Adam and Frank denied any involvement in the assaults, but were placed in separate lineups apparently comprised entirely of Hispanic or black fillers. Rivera identified Frank as the person who had pushed him against the car, and Adam as the perpetrator with the bat. In the lineup relating to Adam, all of the participants were directed to remove their shirts before Rivera finally picked him out. It is significant that defendants were formally charged with the bias incident notwithstanding that they did not particularly match the descriptions of the perpetrators. Equally disturbing is that on August 6, 1986, a police detective named Gerald Coto wrote a report which declared that

Subject: BIAS INCIDENT AT 188th & CICCORONI PARK

1. The following was relayed to this office by a member of the community who stated that the attack on the Hispanic in Ciccoroni Park was perpetrated not by the perpetrator in custody, but by one John alias Eggabomb, male white, 16-17 years old, 5'9", Husky with black hair. Allegedly hangs out at Nathans -- Central Avenue, and at Dominick's restaurant on Arthur Ave. He is said to drive a 1978 white T Bird wth red top and spoke wheels.

"[T]here is no indication that Detective Golub, who received Detective Coto's report several days after defendants' arrest, ever attempted to verify its accuracy notwithstanding that it contained specific facts. Further, the existence of the document was never revealed to defendants so that they could pursue their own investigation, and they only obtained the report by chance in the autumn of 1988 when they subpoenaed the FBI file. As for the other material in the FBI file, it also disclosed contradictory versions of the perpetrators' appearance. Thus, in October of 1986, Detective Golub relayed the description of the bat-wielder furnished to him by Rivera at St. Barnabas Hospital -- that is, a white male with medium length brown hair; Molina remembered only that the boys were white. However, by January of 1987, Rivera provided the FBI with a rather different physical characterization when he asserted that the batterer was dark-complexioned, curly-haired, muscular and had a scar on his torso (evidently a close depiction of Adam). He also supplied details of the pusher and outlined the clothes supposedly worn by the assailants, but these descriptions conflicted with those initially given to the police.

"The matter eventually came to trial...Defendants, in large part, urged that they had been misidentified and/or that they possessed alibis for the crucial time. Of the [prosecution's] witnesses, Rivera was the only one who was able actually to pick out defendants as the attackers. Inexplicably, the defendant most positively identified, Albert Giacoio, was the only one acquitted...[It] is clear that defendants' arrest was unsupported by probable cause. Indeed, the evidence submitted at the pretrial hearings demonstrates that Detective Golub had instructed other police officers to keep watch over the blue Cadillac and apprehend any white male who attempted to enter the vehicle (regardless of whether or not he matched any of the descriptions conveyed by Rivera). Both Frank and Adam were, therefore, arrested merely because they came into contact with the subject car and for no other reason, and did not fit the original physical portraits of the attackers.

"[E]ven assuming that the lineups conducted in [this] case had not been unduly suggestive, a fact strongly contested by defendants, any evidence derived therefrom should have been suppressed as the product of an illegal arrest.

"[In] defendants' post-judgment motion to vacate their conviction...[they] urge that shortly before the concluson of the trial, they learned through the testimony of a witness, Gloria Marcado, the real last name of John Eggabomb, as well as other facts, which, with leads contained in the Coto report, enabled them, with difficulty, eventually to locate and confront John Guiliano...Ultimately, Frank and his cousin Dennis Kolasinac, it is stated, concealed a recording device and taped a conversation with him which fully corroborates his guilt for the crimes mistakenly charged to Adam Pejcinovic and reveals the innocence of both Pejcinovics."

from NRE synopsis (by Maurice Possley):

"The attack occurred as Rivera and Molina walked through the Belmont-Arthur neighborhood, a predominantly Italian-American section* of the Bronx..."

[* This fact may have constituted a primary motive for the crime; i.e., an Italian-American (actual) perpetrator 'defending his turf' from what he peeceived as 'trespassing' Hispanics. Herein, we see an Italian-American named as (one of) the actual perpetrator(s), which makes a lot more sense than a couple of Yugoslavian-Americans walking through an Italian-American neighborhood and deciding to pick on some Latinos.]

"Molina's skull and jaw were fractured and his arms were bitten. He was hospitalized. Rivera suffered a broken arm and bruises, and was released after treatment."

"Rivera said he and Molina began to walk fast, but they were followed. He explained that he heard the sound of Molina being struck in the head with an aluminum baseball bat and turned around to see Molina on the ground, convulsing. He threw himself over Molina to try to protect him, and was struck several times in the arm with a bat. Rivera got up and another youth pushed him against a car two or three times and then a third youth bit him on the arm. The attackers then fled.

"Over time, Rivera gave varying descriptions of the attackers, who came to be known as the batter, the pusher and the biter. In his first interview with police, Rivera said the batter was a 16-year-old white male with blonde hair and green eyes who was about 5 feet 7 inches tall. He gave no description of the pusher, and said the biter was a white male with brown hair who was about 5 feet 11 inches tall.

"Rivera claimed he recognized the biter from having seen him in the past in a Carvel store near the area of the attack.

"That night, police went to the Carvel store where they saw 18-year-old Albert Giacoio. They took Giacoio into custody and Rivera identified him as the biter."

"At the time, Frank was 16 years old, 5 feet 11 inches tall, with green eyes and brown hair. Adam was 19 years old, 5 feet 9 inches tall, with brown eyes and black hair. Giacoio was 18 years old, 5 feet 8 inches tall with blue eyes and blonde hair.

"Rivera was subsequently interviewed by the FBI, and for the first time said the batter was shirtless and had a scar on his chest or shoulder. During the first interview, Rivera's only description of the pusher was that he was 17 years old with brown hair."

"Prior to trial, defense lawyers challenged the identifications by Rivera, arguing that Rivera had given inconsistent descriptions and the lineup was racially suggestive.

"That motion was denied, and the three defendants went on trial in December 1988 in [the] Bronx...Rivera identified the defendants as the attackers, although he could not recall the location of the scar until Adam Pejcinovic was ordered to take off his shirt for the jury. During Rivera's testimony, he gave a different description of the batter than he gave during his interview with police immediately after the incident. On the stand he said the batter had curly, brown hair with swarthy 'Puerto Rican' type skin. He said the pusher was 5 feet 10 or 5 feet 11, and had shoulder-length hair and scars on his face."

"Molina was unable to identify any of the defendants. A total 26 witnesses testified for the defense that Giacoio and the Pejcinovic brothers were not involved, and were elsewhere at the time of the attack. One of the defense witnesses told the jury that the crime had been committed by a man she knew as 'Eggabomb' and his real name was John Guiliani.* The witness said that Guiliani had once been her boyfriend and that Guiliani had confessed to hitting Molina with a bat."

[* The above 1st Dept. decision spells this name Guiliano.]

[Attempting to trace Rivera's changing descriptions of the 'batter,' 'pusher,' and 'biter' turned out to be fiendishly difficult. It's not even clear that the 1st Dept. decision and NRE synopsis agree on how Rivera characterized each of the three at various points in time; i.e., the initial (local police) interview, the FBI interview, and the trial. In any event, looking at the 'batter,' apparently identified as Adam: Complexion/Race: Initially white, then 'dark-complexioned,' then 'Puerto-Rican looking' skin. (Adam actually dark-complexioned.) Height: Initially 5'11", then 5'7"-5'9". (Adam actually 5'9".) Hair: Initially brown and medium-length, then short and curly. (Adam's actually black.) Note that, over time, Rivera's description of the batter seems to get closer to Adam's actual characteristics -- including 'muscular' and 'scar on torso.' This would appear to indicate an (external) 'shaping' of Rivera's recollections.] "On December 17, 1988, the jury acquitted Giacoio and convicted Adam and Frank Pejcinovic..."

"Eleven days later, on December 28, Adam Pejcinovic and a friend located Guiliani and brought him to the residence of a Manhattan attorney named Neil Rosenberg at 2:30 a.m. While there Guiliani signed a statement admitting that he struck Molina with a bat. Guiliani promised to come to court and testify that he -- not the brothers -- was involved.

"The defense made a motion for a new trial and requested a hearing to present the alleged confession, but the motion was denied when Guiliani failed to appear."

"In June 1991, the Appellate Division...reversed the convictions of Adam and Frank Pejcinovic. The Court ruled that there was no probable cause to arrest the brothers and that the trial judge should have held a hearing on the motion for a new trial based on the statement signed by Guiliani. The Court ruled that the brothers were not arrested because of any physical description given by Rivera, but 'solely because they entered. . .the Cadillac.'

"The Court also criticized the police and prosecution for 'the incomprehensible failure. . .at any time to conduct even a cursory investigation into the possibility that there was some substance to John Eggabomb's implication in the attack. . .and the fact that defendants' conviction largely rested upon one person's identification.'

"In January 1993, following several days of hearings on the admissibility of Rivera's identifications of Adam and Frank Pejcinovic, [Manhattan] Judge Phyllis Skloot Bamberger ruled that Rivera would not be allowed to testify in court to his identifications of the brothers.

"On March 11, 1993, the prosecution dismissed the charges. Adam Pejcinovic was released in 1990, a year after he was sentenced. Frank Pejcinovic served 2-1/2 years in prison before he was released. The brothers filed a claim with the New York Court of Claims seeking compensation, but the claim was dismissed."

[All emphases added unless otherwise noted.]