Frank Smith, Jr. - Perjury / False Confession

Smith, Jr., Frank; drug possession/sale; NRE:

perjury/false accusation

[762:90]; 1st Dept. 12/4/90; affirmed

"[Smith's] guilt flows naturally from the evidence, which established that he was an active, albeit furtive, participant in the sale of narcotics. [He] had no direct contact with police, and while there was no evidence that he physically possessed the drugs, his participation in the sale was established by strong circumstantial evidence, including the use of [his] apartment and proof that he profited from the transaction."

[984:634]; Court of Claims 12/2/13; civil suit

"[I]n 1991, it was alleged that a man named Frank Guerra told Frank Smith's mother that he, not her son, was the individual who conspired to sell drugs..."

"On June 19, 2003, Justice Leslie Crocker Snyder...vacated the judgment and dismissed the indictment..."

from NRE synopsis (by Maurice Possley):

"On May 1, 1987, 20-year-old Frank Smith Jr. was arrested in Brooklyn...on a charge of arranging a $4,500 cocaine deal with an undercover narcotics agent. Smith was accused of delivering cocaine to a middleman, who sold it to the undercover agent on April 7, 1987.

"On May 4, 1989, Smith was convicted..."

"In 1992, a man named Frank Guerra told Smith's mother that he -- not her son -- was the 'Frank' who had conspired to sell drugs. However, Guerra would not provide a sworn statement.

"In February 1999, Jerry Capeci of the New York Daily News reported that on September 5, 1988, federal authorities had tape-recorded a suspect in another investigation noting how Smith's arrest had devastated his mother.

"'She took it very bad. She's taking it worse and worse as time goes on, 'cause the. . .kid is innocent,' said Salvatore Fusco. Capeci said Fusco was a member of the Bypass gang, a burglary ring to which Smith also belonged. Capeci said gang members targeted banks and jewelry stores in Brooklyn, Queens, and Long Island.

"Moreover, Capeci reported that in late 1991 or early 1992, former Gambino underboss Salvatore 'Sammy the Bull' Gravano told federal authorities that Smith had been mistaken for 'another guy named Frank'* and was innocent."

[* So, it appears that someone in law enforcement confused Frank Smith for Frank Guerra, simply because of their shared first name. The fact that this actually resulted in conviction would seem to indicate a lack of proper investigation by the police and the defense.]

"Capeci also reported that in 1995, mobster Frank Gioia Jr., who was cooperating with the FBI, told authorities that mob associate Frank (B.F.) Guerra was a drug dealer for Theodore Persico Jr., a nephew of organized crime boss Carmine Persico.

"Capeci quoted FBI documents as saying Gioia told the Smith family that Guerra was the other Frank. During the summer of 1992, Guerra had considered turning himself in, but a mob superior ordered him not to, according to the documents.

"Capeci reported that after he began asking about the Smith case, federal authorities contacted the New York City Office of the Special Narcotics Prosecutor and an investigation was opened.

"In June 1999, an attorney for Smith moved to vacate Smith's conviction on the basis that Guerra's admission to Smith's mother was newly discovered evidence. On June 19, 2003, Kings County...Justice Leslie Crocker Snyder granted the motion and dismissed the case.

"In the meantime, Smith had begun cooperating with federal authorities. He had pled guilty in 1992 to a federal charge of conspiracy to burglarize a bank, and was sentenced to three years to be served consecutively to the sentence he was serving for the narcotics case. In 2001, the Brooklyn [DA] in conjunction with the U.S. Attorney's Office indicted Smith for killing two men, Carmine Variale and Frank Santora.

"On January 16, 2003, Smith signed a formal cooperation agreement. He pled guilty in federal court to a violation of the Racketeer-Influenced Corrupt Organizations Act, alleging his involvement in seven murders. Pursuant to that agreement, Smith pled guilty in Kings County...to manslaughter...for the Variale and Santora homicides. He was sentenced to six to 12 years in prison to run concurrently with his narcotics case sentence.

"By the time that his narcotics conviction was dismissed, Smith had served nearly all of the 15-year minimum sentence on that case. After receiving credits for three years of this time toward the bank burglary case and nearly 12 years toward the sentence in state court for the Variale and Santora homicide case, Smith was released and promptly entered the [U.S.] Federal Witness Protection Program.

"Smith later left the program after he was accused of stealing plasma televisions from a Walmart. He also sought compensation in the New York Court of Claims based on his wrongful narcotics conviction. That claim was denied."

[All emphases added unless otherwise noted.]