SUPREME COURT STATE OF NEW YORK

CRIMINAL TERM PART TAP C QUEENS COUNTY

-

PRESENT:
HONORABLE KENNETH C. HOLDER,
Justice
Ind. No.: 2028/2014

THE PEOPLE OF THE STATE OF NEW YORK

-against- Sirois hearing decision and

supplemental decision on motion
to suppress identification
AJAYA NEALE, testimony

Defendant.

Karen Ross, Esq., ADA

For the motion

Emeka Nwokoro, Esq.

Opposed

Following a Sirois hearing and the reopening of the Wade hearing, and upon the

post-hearing submissions of counsel, in the opinion of the Court herein, the motion to

allow the admission at trial of the grand jury testimony of eyewitness Erika King and

evidence of photographic identification is granted.

The motion to suppress identification testimony is hereby denied.

DATE: November 1, 2018

KNETH C. HOLDER, J.S.C.

 MEMORANDUM

SUPREME COURT, QUEENS COUNTY

CRIMINAL TERM, PART TAP-C

THE PEOPLE OF THE STATE OF NEW YORK

BY Kenneth C. Holder, JSC
against
DATED November 1, 2018

AJAYA NEALE, IND. NO. 2028/2014

Defendants.

Defendant was indicted for two counts each of Murder in the Second Degree and

Criminal Possession of a Weapon in the Second Degree, and Reckless Endangerment

in the First Degree, in connection with the shooting death of Joel Rashko on May 10,

2014, at Roy Wilkins Park.

There were multiple adjournments granted at defendant’s request for the People

to investigate allegations that someone other than defendant - - namely, Omar Bryan,

had committed the murder. The subsequent investigations did not exculpate defendant

and the case proceeded

This Court granted defendant a HuntleyMfade hearing and, following a hearing,

his motion to suppress was denied.

The matter was adjourned multiple times and scheduled to begin trial on October

2017. Just prior to trial, the People filed a motion to preclude the defense from introducing

evidence of third-party culpability at trial. This Court ordered a Pr/mo hearing which was

conducted in which the defense called Omar Bryan, Kalaef Turner and Melvin Anderson

1
as witnesses in an effort to meet their burden to establish the admissibility of evidence

that Omar Bryan had admitted to Kalaef Turner and Melvin Anderson that he was the

shooter. Omar Bryan denied being at the park that day and testified that he had learned

about the shooting at a later time. He admitted being friends with defendant, Kalaef Turner

and Melvin Anderson, but denied that they were all members of the Crips gang. Evidence

was presented that the Queens District Attorney’s Office had interviewed Omar Bryan,

conducted their own investigation, and he had been excluded as the shooter. Kalaef

Turner testified that Omar Bryan had admitted to being the shooter in the presence of

himself, defendant and Melvin Anderson. He admitted that they had all been fellow

members of the Crips gang at some point in time. Melvin Anderson asserted his Fifth

Amendment rights. At the conclusion of the Pr/mo hearing, this Court held that the third-

party culpability evidence that defendant sought to admit consisted solely of alleged

hearsay admissions whose reliability had not been demonstrated, nor were they shown

to be independently admissible.1

On October 16, 2017, the eve of trial, NBC News 4 New York I-team featuring

Sarah Wallace aired a news story purporting to question whether New York laws

governing discovery in criminal cases gave prosecutors an unfair advantage. In fact, the

news story most prominently provided a forum for defendant to deny committing the crime

and to publicize the defense unique spin on the facts and circumstances surrounding the

case. For instance, Sarah Wallace stated that defendant had been released on $100,000

bail following questionable lineups in which two witnesses had first identified other

suspects. Defendant was filmed stating that he had hired his investigator, Manuel

I It should be noted that Sarah Wallace from NBC News 4 New York and Manuel Gomez, a private investigator that
defendant hired on his own and without the knowledge of defendant’s counsel, were seated in the courtroom
throughout the third-party culpability hearing.
2
Gomez, after seeing news stories relating to his work on the Pedro Hernandez case in

the Bronx. The I-team showed video footage of alleged alibi witnesses that Mr. Gomez

had “discovered,” three years after the murder, who claimed that defendant had been

present on the block in the neighborhood when the murder was committed. They also

showed footage of Mr. Gomez proclaiming that he had “witnesses who were there,” and

“video evidence and pictures proving that Mr. Ajaya Neale is innocent.” The news story

also indicated that there were several people who claimed that a person named Omar

Bryan had admitted to them that he had committed the murder, despite this Court’s

determination following a full hearing that the hearsay admissions were not reliable and

not admissible at trial. In addition, the I-team showed video footage of Erika King, the

People’s sole eyewitness to the murder appearing to claim that detectives had steered

her to identify the defendant in a photo array when she was not 100 percent sure, that

she had also identified two other individuals who looked familiar, and that she felt

victimized because the district attorney had threatened to have her arrested if she did not

testify. The news story ended with the defense claiming that police reports, 911 calls and

other documents still had not been disclosed and alleging a trial by ambush.

On October 17, 2017, the next day, the Court rendered several decisions

concerning pretrial discovery motions and motions in limine. There was extended

discussion and argument referencing the allegations made in the I-team news story. The

People detailed the breadth of documents that they had turned over to the defense since

the inception of the case, more than 11,000 documents, contrary to what had been stated

in the news story. The People also made a record that the remaining materials that had

not been turned over were subject to a protective order, which Victor Knapp, the attorney

who represented defendant at the time, knew about. Mr. Knapp acknowledged that he

3
had been given voluminous documents and evidence in the case and that he knew about

the protective order. Mr. Knapp also indicated that defendant’s family had hired Mr.

Gomez without his knowledge. Mr. Knapp stated that he had not known that the I-team

news story was going to be shown, had not known anything about the alleged alibi witness

affidavits and video statements, and had not been involved with the video statements of

the People’s witness Erika King, all taken by Mr. Gomez. The Court then ordered Mr.

Knapp to turn over to the prosecutor the names of the alibi witnesses and the matter was

adjourned for the People to investigate the alibi allegations as well as the circumstances

surrounding Erika King’s apparent change in the certainty of her identification and

allegations of misconduct.

Shortly thereafter, Mr. Knapp made an application seeking to be relieved from

his representation of defendant for professional and ethical reasons. He informed the

Court that defendant had retained Mr. Gomez without his knowledge and, essentially, Mr.

Gomez had taken over the case, going out into the field and suddenly located and

interviewed alleged alibi witnesses as well as the main eyewitness, Ms. King, without

consultation or direction from him. Instead of bringing the results of his investigation to

Mr. Knapp, Mr. Gomez gave it to the media without regard to any defense strategy Mr.

Knapp already had in place after having represented defendant for three years, during

which time there was not the slightest insinuation of the existence of any legitimate alibi

witnesses. The sole basis of the alibi that had been offered by Mr. Knapp had been

Google maps images of the location of the defendant’s cell phone at locations other than

the time and place of the murder. According to Mr. Knapp, since the hiring of Mr. Gomez,

his attorney-client relationship with defendant had been eroded and he had lost control

over the representation. Based upon Mr. Knapp’s representations as well as what was

4
apparent from the news media coverage and defendant’s indication that he no longer

wanted Mr. Knapp to represent him, this Court granted Mr. Knapp’s application and

relieved him as counsel. The matter was adjourned for continued investigation by the

People and for defendant to hire new counsel.2

After several adjournments and following an opportunity to investigate further, the

People moved for a Sirois hearing for this Court to determine whether the eyewitness

Erika King’s inability to identify defendant at trial was the result of misconduct by the

defendant or on the defendant’s behalf, such that the remedy for such alleged misconduct

should be the admission of Ms. King’s grand jury testimony at trial. The People also

moved to reopen the Wade hearing based upon statements made by Erika King indicating

her belief that one of the detectives conducting the photo array was looking at the bottom

row of photographs.

The defendant opposed the motion for a Sirois hearing arguing that the witness

was still physically available to testify and did not meet the unavailabNity requirement to

justify a Sirois hearing. The defense also argued that the conduct that the People claim

caused Ms. King’s unavailability was not committed by the defendant.

Following extensive oral argument, this Court granted a Sirois hearing as well as

the motion to reopen the Wade hearing.

The Sirois hearing was conducted on June 8, and June 28, 2018. Erika King, Det.

Jessica Romance, Joseph Sierra - - records custodian from T-Mobile and Renada Lewis

-
- records custodian from Verizon Wireless, testified on the People’s behalf and the Court

2 Defendant came to be represented by Emeka Nwokoro from the law firm of Nwokoro & Scola.
5
credits their testimonies in all relevant and pertinent aspects. Numerous exhibits were

admitted in evidence and reviewed by the Court as well.

Mr. Manuel Gomez testified on the defendant’s behalf and the Court does not

credit his testimony. Mr. Gomez is a private investigator who somehow became involved

in the case through the defendant and/or his family on their own, not through Mr. Knapp’s

representation. He is an interested witness who, assuming he was paid for his services

in this case, was specifically hired by defendant as a result of news stories concerning

his “discovering” alibi witnesses in a Bronx case that received significant media attention.

Mr. Gomez appears to relish the celebrity and notoriety that comes from his involvement

with criminal defendants and he has an apparent relationship with Sarah Wallace

because he is usually the key figure in lengthy I-Team Investigation news reports about

this case and they usually sit next to each other throughout many of the court

appearances and proceedings since his involvement in this case. Mr. Gomez was evasive

in his testimony and not forthcoming with respect to relevant issues in this case. He never

disclosed a signed copy of the alleged retainer agreement between himself and

defendant’s mother despite testifying that there was a signed agreement and being

ordered to provide it to the Court. He was extremely argumentative during the hearing

and clearly pressed an agenda to publicly smear the prosecutor and NYPD in this case

despite an admission that he did not review the vast majority of the police reports and

discovery in this case provided by the Assistant District Attorney before somehow

determining in his own mind that defendant was innocent.

Following the hearing, the parties submitted post-hearing memoranda. The People

also submitted a reply by letter.

6
 FINDINGS OF FACT

Lrika King is a twenty-eight-year-old mother of two young children. She served in

the Army/National Guard and received a bachelor’s degree in Psychology with a

concentration in special education. She currently works as a behavioral and mental

health counselor at a charter school in North Carolina.

On May 10, 2014, at approximately 3:00 p.m., Ms. King attended a cookout at Roy

Wilkins Park in Queens County and sat down on a bench in the basketball court to talk

with her boyfriend. Within two minutes after arriving there, while her son’s uncle, Joel

Rashko, was standing diagonally in front of her talking with a group of people, Ms. King

heard someone yelling out, “What’s crackin’?” When she looked in the direction where

the shouts came from, she saw a man with a black Mach-lO gun in his right hand, wearing

a white t-shirt and a blue bandana covering the lower portion of his face underneath his

nose. The man was approximately 75 feet away from her and she described him as a

Black male with medium brown skin, approximately 5’lO” tall with a stocky, but medium

build. She recognized “What’s crackin’?” as a phrase used by member of the Crips gang.

She knew this because Joel Rashko was a member of the Bloods gang. She knew that

the Bloods gang members were known to wear the color red and the Crips gang members

wore blue. The Crips and Bloods are known to be rival gangs.

After yelling, “What’s crackin’?” the man began shooting. Ms. King heard between

three and five gunshots at first and began running away from the basketball courts toward

the back of the park. She had seen the shooter’s face when she had turned to look at

him. Other than the blue bandana covering his mouth and the lower portion of his face,

there was nothing else obstructing her view of his face. In fact, she had seen the gunman

approximately five to fifteen minutes before the shooting, when she had passed him in

7
the park on her way to the basketball courts. When she had first seen him, he was wearing

a white t-shirt and army fatigue shorts. He was not wearing a blue bandana over his

mouth at that time and she had seen his entire face. The shooter had the same physical

build as the man she had seen earlier. She had taken notice of him earlier because he

appeared to be lingering around and also had kept looking in her group’s direction.

On August 11, 2014, at approximately 12:10 p.m., Ms. King viewed a photo array

in the Queens County District Attorney’s Office. She recalls that two detectives - - a male

and a female - - were sitting across the table from her.3 She recalls that when the male

detective was reading the instructions to her,4 he appeared to be focusing on the bottom

row.5 She signed her initials acknowledging that the instructions had been read to her.

Thereafter, Det. Romance slid a manila folder containing the photo array across the table

to Ms. King. Ms. King opened the folder and the detectives told her to take her time and

choose wisely.6 Ms. King looked at the photo array, taking her time and looking at all of

the photographs. She picked the defendant, depicted as number five in the photo array,

and began to cry and rock back and forth because she recognized him from his eyes and

nose as the shooter at the park. At that time, she was absolutely certain about her

3 Detective Jessica Romance and her partner, Det. Zozzaro, were present to conduct the photo array.

4 But Det. Romance testified that she was the one who read the instructions to Ms. King and was seated directly
across the table from her. Detective Zozzaro was seated on the left side of Det. Romance, also across the table from
Ms. King.

5 Although Ms. King claims to recall thinking that the male detective was “looking at the bottom row” when he was
reading the instructions, she admits that the instructions, photo array and viewing report documents were kept in a
folder and that the photo array was taken out of the folder and given to her after the instructions were complete. On
cross-examination, Ms. King indicated that she believed that the male detective’s eyes were looking at the bottom of
the paper but she could not tell if he was looking at a particular picture. Detective Romance did not see her partner
look at any particular person or row in the photo array. The photo array was in the folder until Ms. King opened it to
look at it.

6 Detective Romance denied that either she or Det. Zozzaro told Ms. King to take her time and to choose wisely.

8
identification of the shooter. Detective Romance memorialized Ms. King’s answers on the

photo array viewing report.

After defendant’s arrest on July 30, 2014, defendant gave his home address as

179-60 Anderson Rd. in Queens County. That address is approximately six blocks away

from Roy Wilkins Park. On that date, defendant told the detectives that he was 6’l” tall

and weighed approximately 200 pounds.7

On August 31, 2015, more than one year later, Ms. King viewed six additional

photo arrays with Det. Kaalund from the Queens County District Attorney’s Office. She

was read instructions prior to viewing the six photo arrays. Ultimately, Ms. King did not

identify anyone in any of the six photo arrays. She recalled stating to Det. Kaalund at the

time that she did not want to identify anyone if she was not one hundred percent sure,

and that three people in the six photo arrays looked familiar because she must have seen

them in the park the day of the shooting.8 She also told Det. Kaalund that she was sure

that none of those people were the shooter because their build was too slim. Ms. King

signed each of the six viewing reports.

On October 12, 2017, sometime after 3:00 p.m., Manuel Gomez appeared at Ms.

King’s job. He told Ms. King that he was a private investigator from New York. A Hispanic

woman was with him and identified herself as well, but Ms. King did not recall her name.

7 At the hearing, more than three and one-half years later, defendant appeared to be “more husky” than at the time of
his arrest.
8 That same day, Det. Kaalund wrote a note summarizing this exchange with Ms. King and attached it behind one of
the photo array reports. She indicated, in sum and substance, that after Ms. King had not recognized anyone and
signed the photo array containing Omar Bryan in position #5, she stated that she did not want to identify someone she
was not one hundred percent sure of. When Det. Kaalund asked her what she meant, Ms. King told her that number
3 in the first photo array, and number 2 and 5 in the third photo array looked familiar but she did not know where she
had seen them or if they just resembled someone she knew. Detective Kaalund also wrote that Ms. King further stated
that none of those people were the shooter.

9
Ms. King asked Mr. Gomez if he was from the defense and he said, “No,”9 and showed

her an identification or badge of some sort. Mr. Gomez told Ms. King that he wanted to

go over the case with her and she took him and his assistant to her office.

In Ms. King’s office, Mr. Gomez showed her a Newsday article from the internet

that he retrieved on his phone titled, “Judge could dismiss murder charges against 4 men

over police ballistics report.” The article, dated August 10, 2014, involved a mistrial in one

of ADA Ross’s cases because of a Brady violation in which a police ballistics report had

not been disclosed to the defense. Mr. Gomez told Ms. King that ADA Ross “could not

be trusted” and was “known for railroading people.” After reading the article, Ms. King felt

like she could not trust ADA Ross.

In fact, however, on February 13, 2015, Judge Buchter had rendered a decision

after a full hearing on the Brady violation and held that there was no misconduct on the

part of the prosecutor or the NYPD and the case had not been dismissed. Mr. Gomez

did not show Ms. King the court’s decision or tell her that the court had found there was

no intentional misconduct on behalf of ADA Ross or the NYPD.

Next, Mr. Gomez showed Ms. King some Google maps on his computer. He told

Ms. King that the maps showing defendant’s cell phone/GPS location at the time of the

murder in relation to the park proved that defendant was nowhere near the park at the

time of the murder. He did not tell Ms. King how far away the cell phone/GPS locations

on the maps were from the park and made no reference to where defendant physically

was at the time of the murder in relation to the park.

9 Approximately one and one-half months before Mr. Gomez appeared at Ms. King’s job, another defense investigator
reached out to her and asked to speak with her. She declined to speak with that defense investigator and he complied
with her wishes.
10
 Mr. Gomez personalized defendant to Ms. King during the meeting by referring to

him as, “AJ,” and attempted to influence her by telling her that the murder was not “AJ”s

modus operandi, or “MO.” Ms. King did not ask him what he meant by that. In addition,

Mr. Gomez showed Ms. King two photographs of defendant - -a full body shot and a

photograph depicting defendant’s face (People’s Exh. 17). Ms. King told Mr. Gomez that

she should could not make an identification from the facial picture. Mr. Gomez then

showed her the full body photograph of defendant and when she made a comment about

his build, Mr. Gomez told her it was an old picture and that defendant was not the same
10
build as depicted in the photograph.

Mr. Gomez also showed Ms. King two videos of witnesses saying either they were

with “AJ” or that they saw him on the corner at the time of the shooting. Mr. Gomez did

not provide any context to these videos, however. Mr. Gomez did not tell Ms. King that

these purported alibi witnesses lived on the same block as the defendant and were only

recently discovered through the actions of the defendant and Mr. Gomez three and one-

half years after the murder. Mr. Gomez also did not inform Ms. King that these witnesses

had all had contact with the defendant during that three and one-half-year time period as

well.

In addition, Mr. Gomez falsely told Ms. King that no one else had been investigated

for the murder and he had proof that one of the guys that she had mentioned looked

familiar in one of the photo arrays - - Omar Bryan - - was the shooter and that he had fled

to Barbados two days after the shooting. Ms. King had never heard the name Omar

Bryan before and thought it would be suspicious if he had fled the country two days after

10 The full body photograph of defendant that Mr. Gomez showed Ms. King was ordered to be disclosed by subpoena
duces ecum, but was not turned over to the People or the Court.

11
the shooting. She then began to question whether she had identified the right person in

the August 14, 2014 photo array. Other than the bald false statements that Omar Bryan

was the shooter and had fled to Barbados two days after the shooting, Mr. Gomez did not

show Ms. King any actual proof that Omar Bryan, in fact, was the shooter.11 Mr. Gomez

showed Ms. King a picture of Omar Bryan, but rather than ask her if she recognized him,

he told her that it was Omar Bryan in the picture and pointed out to her that he was

wearing a white t-shirt as well. When Ms. King told Mr. Gomez that Omar Bryan did not

have the same body build as the shooter, he told her that it was an old picture and he

was heavier now. He also showed her a picture of Omar’s brother, telling Ms. King that

she had picked out both Omar and his brother, Shamir, in the photo arrays and that he

found that “interesting.” He also told Ms. King, without proof, that Shamir was at the park

as well and that she may have picked both of them because they looked so much alike.

By then, Mr. Gomez’s interview and statements had made Ms. King feel that she

could not trust ADA Ross, that there was actual evidence that Omar Bryan was the

shooter and the police had not investigated him,12 and she was no longer certain of her

identification of defendant as the shooter. As a resu[t, she did not want to testify at trial

because she was no longer 100% sure of her identification.

Mr. Gomez seized the moment and asked her to write out an affidavit, telling her

that she would no longer be needed to testify in court after she wrote it. Mr. Gomez and

II Indeed, Omar Bryan’s work records which were entered in evidence establish that Mr. Gomez’s statements in that
regard were patently false because the work records show that Omar Bryan had actually worked the night of the
homicide and had continued to work at the same location at least through November 12, 2014.

12 Mr. Gomez never told Ms. King that Omar Bryan had, in fact, been investigated by the District Attorney’s office,
had testified under oath and given written statements denying being the shooter and had been exonerated. Mr. Gomez
also did not tell Ms. King that Omar Bryan had voluntarily given his DNA for comparison with relevant evidence.
Mr. Gomez did not tell Ms. King that other witnesses had viewed a photograph of Omar Bryan and excluded him as
the shooter.
U
his assistant were present the entire time she wrote the affidavit. As Ms. King wrote, Mr.

Gomez would ask her to stop and read what she had written, then wou!d tell her a

sentence to add next. He also had her tell him what she would say next, rewording it and

telling her what to write next. Looking over the affidavit that Ms. King wrote and signed,

with assistance from Mr. Gomez, she acknowledged that there were portions of the

affidavit that were not her words but rather the words Mr. Gomez had told her to write.

She circled the portions of the affidavit that contained wording that Mr. Gomez had given

her (People’s Exh. 18).

After signing the affidavit, Mr. Gomez asked Ms. King to record a video statement

and she agreed. Using his cell phone, Mr. Gomez asked her questions as he recorded

her, coaching her from off-camera. Ms. King admitted that while most of the statement

was true, portions were not her words and that in those instances, she said the words

that Mr. Gomez told her to say because he had told her that she would not have to go

back to New York to testify if she did so. Mr. Gomez did not ask her permission to put the

video of her face and statements on television. He only told her that after she made the

video statement, she would not have to come to court.

Shortly after Mr. Gomez left, he called Ms. King in her office and told her that a

reporter - - Sarah Wallace - - wanted to speak with her. The conversation was brief

because Ms. King was leaving work, but Sarah Wallace asked Ms. King if she wanted to

come to New York to meet with her and to be on television. Ms. King told her, “No,” and

agreed to talk with her on the phone because she never wanted to ever come back to

New York. Sarah Wallace asked Ms. King questions about herself and everything that

had happened. Sarah Wallace never told Ms. King that their conversation was being

recorded or that her video statement would be shown on television.

13
 But, on October 16, 2017, Sarah Wallace aired an NBC News 4 New York I-Team

report on the case in which she attributed statements to Ms. King and, among other

things, showed portions of Ms. King’s video statement that had been recorded by Mr.

Gomez. Prior to testifying at the hearing, Ms. King had viewed the news report (People’s

Exh. 15) and made several observations related to what Mr. Gomez had told her. She

noticed that Omar Bryan was shown in the news report and observed that Omar Bryan,

in fact, had the same build as he had in the picture Mr. Gomez had shown her. She then

realized that Mr. Gomez had lied to her when he said that Omar Bryan was a lot heavier

now than in the photograph. In fact, Ms. King also found several misleading portions of

the news report that had been attributed to her. She never told Mr. Gomez or Sarah

Wallace, with whom she had spoken on the phone, that she had been “steered” to identify

someone in the photo array. Her statement that she “wasn’t 100% sure” referred to one

of the men she had told Det. Kaalund that she might have seen in the park but was

definitely not the shooter. In addition, Sarah Wallace’s statement that Ms. King had said

that she had been threatened by the assistant district attorney was not presented in

context. Ms. King had been afraid to testify at trial and had asked ADA Ross what would

happen if she ignored a subpoena. Assistant District Attorney Ross had informed Ms.

King that she could be arrested if she ignored a subpoena and at that time, Ms. King

intended to testify voluntarily rather than be forced to appear pursuant to a material

witness order. When Ms. King had told Mr. Gomez about this conversation, he told her

that ADA Ross was lying to her to get her to come to court and testify. Ms. King believed

him at that time because he told her he used to be a police officer and his statements to

her at their meeting had caused her to distrust the prosecutor and the entire process.

14
 Prior to speaking with Mr. Gomez, Ms. King had not had any concerns about ADA

Ross’s honesty and integrity in handling the case. Mr. Gomez did not offer Ms. King any

money but offered to take her out to dinner. Ms. King declined, telling him that she was

married.

In addition to the so-called alibi videotaped statements that Mr. Gomez had

obtained, shown to Ms. King and aired on NBC News 4 New York, he had also obtained

several affidavits. On August 18, 2018, Mr. Gomez had taken written statements from

Christian Hinton13 (People’s Exh. 29) and Kenya Turner14 (People’s Exh.30), who each

claimed to have been present with defendant on the block where they lived within a few

houses of each other,15 when they learned that someone had just gotten shot in the park.

The call detail records relating to defendant’s cell phone showed that defendant had three

cell phone calls with Kenya Turner that same day (People’s Exh. 39).

Unique Branch16 also made a written statement to Mr. Gomez on August 18, 2017,

claiming that he seen the shooting in the park and that Ajaya Neate was not the shooter

(People’s Exh.31). The call detail records for defendant’s cell phone show that there were

two cell phone contacts between defendant and Unique Branch that same day (People’s

Exh. 40).

On August 25, 2017, Mr. Gomez took written statements from both Deshaun

Broomfield17 (People’s Exh. 32) and Ayrian Chang-Thomas18 (People’s Exh.33).

DeShaun Broomfield indicated that he had seen defendant standing on the block when

the shooting occurred. Ayrian Chang-Thomas stated that Det. Romance had told him that

13 Christian Hinton provided 179-71 Anderson Rd., Jamaica, NY as his home address.
14 Kenya Turner gave 179-37 Anderson Rd., Jamaica, NY as his home address.
15 Defendant lived at 179-60 Anderson Rd., Jamaica, NY.
16 Unique Branch gave 170-22 1gth Rd., Jamaica, NY as his home address.
17 DeShaun Broomfield gave 179-71 Anderson Rd., Jamaica, NY as his home address.
18 Ayrian Chang-Thomas gave 179-61 Anderson Rd., Jamaica, NY as his home address.
15
she knew defendant had not committed the murder and had asked him and DeShaun

questions about the murder. The call detail records for defendant’s cell phone show that

defendant had contact with both of these people that same day (People’s Exhs. 41 and

42).

On August 26, 2017, Mr. Gomez obtained written statements from Tyrek Archer19

(People’s Exh. 34) and Dequan Tyndale2° (People’s Exh. 35). Tyrek Archer stated that

he was 16 years old at the time and had seen the shooting. He described the shooter as

“carmel Black,” “approximately 511” to 6 feet” and with a “medium built body.” Cell phone

call detail records show that defendant called Tyrek Archer two times that same day

(People’s Exh. 43). Dequan Tyndale also claimed that he saw defendant on his block a

few houses away at the time of the shooting. Cell phone call details show that defendant

had contact with Tyndale three times that same day (People’s Exh. 44).

Despite having been hired by defendant to investigate his case, there was no cell

phone contact at all between Mr. Gomez and at least 6 out of the 7 witnesses from whom

he obtained the above written statements, namely, Christian Hinton; Kenya Turner;

Unique Branch; Ayrian Chang-Thomas; Tyrek Archer; or Dequan Tyndale.21 The cell

phone call detail records for defendant’s cell phone account show numerous calls

between defendant and Mr. Gomez, including on each of the dates that Mr. Gomez

obtained the written statements from defendant’s alleged alibi witnesses. The call detail

records also show multiple cell phone calls between defendant and Mr. Gomez on

19 Tyrek Archer provided a home address of 174-36 126t1 St., Jamaica, NY.
20 Dequan Tyndale gave a home address of 179-71 Anderson Rd., Jamaica, NY.

21 Renada Lewis, a records custodian for Verizon Wireless, produced cell phone subscriber and call detail records
for Mr. Gomez’s cell phone (347) 867-6242. She did a search of his call detail records for the cell phone numbers
of the defense witnesses and testified that there were no cell phone calls between Mr. Gomez and those 6 witnesses.
16
October 12, 2017-- the day Mr. Gomez spoke with Ms. King at her job, as well as in the

days before and after meeting with her (People’s Exh. 45).

Defendant’s Case

Manuel Gomez is a former New York City police officer and currently a New York

State licensed private investigator and owner of Black Ops Private Investigators. Mr.

Gomez claimed not to recall whether numerous complaints had been filed against him in

the nine months he spent assigned to the 43rd Precinct before he was transferred to the

Property Clerk’s Division. He failed an integrity test there and, as a result, lost thirty days’

pay and was placed on probation for one year. He was subsequently transferred to

building maintenance, where he claims that he drove a captain in Brooklyn. He was also

disciplined for failing to follow an order at some point.

Apparently, the NYPD fired Mr Gomez following his arrest in August 2009 for

having “brandished his gun during the course of a violent off-duty dispute,” “point[ing] the

firearm at civilians who were attempting to assist the victim,” “fail[ing] to comply with the

responding police officers’ instructions,” and “resist[ing] arrest” (see Matter of Gomez V

Kelly, 139 AD3d 437 [ist Dept. 2016]). Thereafter Mr. Gomez sued the City of New York

alleging several causes of action related to his termination. After his attorney in that

matter stipulated to the dismissal of some of those causes of action, Mr. Gomez then

claimed that his attorney had agreed to the dismissals without his consent. During a

subsequent hearing with new counsel22 to determine whether defendant’s attorney had

22 The same law firm that represented Mr. Gomez after the dispute with his initial attorney, Nwokoro & Scola, also
now represents defendant. Nwokoro & Scola was retained after Mr. Knapp requested to be relieved for ethical reasons
and because he no longer controlled the defense strategy.

17
lacked the authority to enter into the stipulation of dismissal, the court found Mr. Gomez’s

allegations to not be credible.23

Mr. Gomez’s credibility was also found questionable in other instances, as well.

The NYPD’s gun licensing division denied his December 2013, application for a New York

City “carry business handgun license” because he had made false statements in his

firearms license application, lacked good moral character, had been fired by the NYPD

for cause based on disciplinary action for bad behavior numerous times, and had been

arrested in August 2009. Mr. Gomez’s appeal thereafter was denied.24

Two months later, when Mr. Gomez applied for a renewal of his private

investigator’s license, he denied that he had been denied a license or permit (of any kind)

since his previous application for a private investigator’s license.

Currently, the New York State Department of Correctional Services has suspended

Mr. Gomez’s privileges to enter into any state correctional facility, based on allegations

that he violated the prohibition against bringing contraband into one of their facilities. The

contraband at issue was a recording device.

When questioned about failing to be candid on the private investigator’s license

application about listing prior arrests, Mr. Gomez testified, “I have no arrests, thank you,

other than a violation summons when I was 18, 19 years old.” In fact, Mr. Gomez had

also been arrested for a domestic dispute with Janice Rivera in the Bronx on August 27,

2009. He is also currently subject to an order of protection issued in favor of Kelly Guarino

with respect to allegations that he had strangled her and hit her in the lip. In that case,

23 See Gomez v City ofNew York, 12-cv-6409 (RJS), 2016 WL 4618968, at **3..4 [SDNY, Sept. 2,2016]).

24 See Matter of Gomez v Bration, Index No. 101428/14, at 2-3 [Sup Ct, New York Cty, June 12, 2015] [Wooten,
JI)
18
Mr. Gomez pled guilty under oath to Harassment in the Second Degree in Nassau County

Criminal Court, although he claims that he lied when he pled guilty because he wanted to

get the case over.

Nevertheless, in August of 2017, defendant and his mother contacted Mr. Gomez

to look for witnesses who had not been interviewed by the police and for new witnesses.

He testified that defendant had told him that he was innocent and had been in front of his

house and in the area with other people when the murder occurred. Initially, Mr. Gomez

claimed that he never asked defendant for the names of any potential witnesses and did

not recall whether defendant had told him the names of any witnesses. Mr. Gomez

testified that there was a written retainer agreement that between defendant’s mother and

himself, which they both had signed.25 According to Mr. Gomez, they paid him a flat fee

of $6000.00 for his services. He denied that it was his standard practice to have a family

member enter into the retainer agreement but acknowledged that his job was to look for

evidence to help defendant’s case. He has frequent communications with defendant on

his cell phone.

On cross-examination, Mr. Gomez admitted that the job of a private investigator,

as well as a detective, is to go wherever the evidence leads and not decide what is the

truth. He also admitted that it is not his job as an investigator to decide whether someone

is innocent. He indicated, however, that his investigative experience has enabled him to

determine when people are lying, or not.

He agreed that knowing the facts of the case and reviewing documents, witness

statements and evidence is an important part of conducting an investigation. When he

25 Despite having been ordered by the Court via subpoena duces tecum and in court to produce a copy of the signed
retainer agreement, he never did so. He only provided the Court with a typed document with no signatures.

19
was first retained, he spoke with defendant but claims that defendant did not provide him

with much information. Over the course of the investigation, he received more police

documents and information from defendant and his former attorney, Victor Knapp.

Although Mr. Gomez had received these documents and information, he admitted that

the amount of information was voluminous and only reviewed “some” of the discovery

material that had been provided to Mr. Knapp. He testified that he does not keep

discovery documents and only turned over to the prosecutor documents and video

statements that he generated. Mr. Gomez testified that he does not keep the documents

because he does not want to be responsible for turning them over. He also testified that

he does not take notes when he conducts an investigation. While he testified that he

believed he had done a very thorough investigation, he claimed that he never saw the

photo arrays that had been shown to Ms. King by Det. Kaalund. Despite the voluminous

documents in the case, he also claimed that he was unaware that the murder was

motivated by a gang dispute between the Crips and the Bloods. He never asked

defendant if he was a gang member and claimed that he had not seen any evidence that

defendant was a gang member.

According to Mr. Gomez, he spoke with many people on Anderson Rd. in Queens

during his investigation. On August 18, 2017, he interviewed Christian Hinton, Kenya

Turner and Todd Archer, who lived across the street from defendant. These interviews

took place in the dining room inside defendant’s house.26 He claimed that defendant was

in another room when the interviews occurred. He also interviewed Unique Branch in his

car that same day.

26 Mr. Gomez claimed that a lot of witnesses were interviewed at defendant’s house because they did not want their
families to know that they were going to testifj.
20
 Several days later, on August 25, 2017, Mr. Gomez interviewed Ayrian Chang

Thomas and Deshaun Broomfield. These interviews also took place inside defendant’s

house.

On August 25, 2017, Mr. Gomez interviewed Tyrek Archer on what appeared to

be the porch of a house. He also interviewed Dequan Tyndale approximat&y one-half

hour later inside of a Subway restaurant.

He testified that after interviewing the witnesses, he had them write out and sign

affidavits and then videotaped their statements. Ultimately, Mr. Gomez admitted that

defendant had told him that he knew these witnesses from the neighborhood but claims

that defendant hadn’t told him anything else.

In September of 2017, Mr. Gomez was present in court during the Primo hearing,

which had been held to determine the admissibility of purported third-party culpability

evidence at trial that Omar Bryan was the shooter. Mr. Gomez had decided that Omar

Bryan was the shooter, apparently based solely on claims by two of defendant’s friends,

Melvin Anderson and Kalaef Turner. Mr. Gomez admitted that he had served a subpoena

for Melvin Anderson and told him that he would be arrested if he failed to obey a court-

ordered subpoena. Mr. Gomez had contacted Sarah Wa!Iace from NBC News 4 New

York and she was present during the hearing as well. Mr. Gomez claimed not to recall

any of Omar Bryan’s testimony at the hearing concerning his cooperation with the Queens

District Attorney’s Office in conducting an investigation that ultimately excluded him as

the shooter. He also claimed not to recall the Court’s ruling that the defense evidence of
27
third-party culpability was not sufficiently reliable to be admissible at trial.

27 Indeed, Melvin Anderson asserted his Fifth Amendment right at the hearing. Kalaef Turner’s testimony was
found not to be credible by this Court.

21
 Mr. Gomez testified that he and his assistant, Carol Jimenez,28 went to North

Carolina to interview the People’s eyewitness Erika King at her job as she was leaving

work in approximately November 2017.29 Ms. Jimenez was present during the entirety of

the time Mr. Gomez spent with Ms. King and Mr. Gomez testified that she had been

present to be a witness to the interview to ensure that nothing improper occurred. Mr.

Gomez claimed that he had identified himself as “Private Investigator Manuel Gomez,

Black Ops” and Ms. King had told him that she did not want to “talk to white detectives”

and started to walk away. According to Mr. Gomez, he got her attention by showing her

a photograph of “a guy wearing a blue bandana”3° that covered all of his face except for

his eyes, and she became emotional. He claimed that when he confronted her with a

photograph of defendant and asked why she had identified him as the shooter, she took

him to her office to talk.

According to Mr. Gomez, he never tried to “coerce” Ms. King into giving a false

statement. He denied showing her the article about the disclosure issues in one of ADA

Ross’s cases. He denied telling Ms. King that Omar Bryan had left the country within

days after the shooting but admitted telling her that the police had not investigated anyone

else for the murder, despite having been present during the Primo hearing and

possessing the documents detailing the investigation of Omar Bryan.

28 Defense attorney Nwokoro had indicated at the end of Mr. Gomez’s testimony that the defense was going to call
Ms. Jimenez as a witness. The case was adjourned to the next morning for her testimony, but ultimately, the defense
did not call her to testitS’. Considering the great disparity on key issues between the testimony of Ms. King and Mr.
Gomez, which presumably could have been cleared up by Ms. Jimenez, who was clearly available, one can only
assume that had she taken the stand and testified truthfully, her testimony would have been favorable to the People.

29 The interview actually occurred on October 12, 2017 but Mr. Gomez does not take notes to keep a record of
anything that he does or discovers during his investigations.

30 Presumably, this was a photograph depicting Omar Bryan.

22
 He also claimed that her written affidavit was made entirely of her own words and

that he had told her more than eight times that she had to be truthful. He denied telling

Ms. King any specific words or statements to make in the affidavit and insisted that they

were all her words. He also denied telling her that she would not have to testify in court

if she gave him the written statement.

Mr. Gomez denied that he had asked Ms. King if he could take her out to dinner.

Mr. Gomez claimed that Ms. King knew that she would be on television because

he had connected her with Sarah Wallace on a three-way phone call and the NBC News

4 New York camera man had filmed Sarah Wallace getting her consent. Mr. Gomez did

not have this video recording.

According to Mr. Gomez, he showed Ms. King only one photograph of defendant.

The photograph that he showed her was the one depicted in People’s Exh. 17.

CONCLUSIONS OF LAW

A criminal defendant has the right under the Sixth Amendment of the Federal

Constitution and article 1, § 6 of the State Constitution, to confront the witnesses against

him at trial (see Crawford v Washington, 541 US 36 [2004]; Delaware v Van Arsdall, 475

US 673, 678 [1986]; People v Smart, 23 NY3d 213, 219 [2014]). This confrontation right

is critical in an adversarial proceeding and to the due process right to a fair trial because

the reliability of a witness’s testimony can only be ensured or established by rigorous

testing through cross-examination before the fact finder (see People v Smart, 23 NY3d at

219-20, citing People v Wrotten, 14 NY3d 33, 39 [2009]). However, when the availability

of a witness to testify is procured by a defendant’s misconduct, the defendant may forfeit

his constitutional confrontation right and the unavailable witness’s grand jury testimony,

which has not been tested through cross-examination, may be admitted at trial on the
23
People’s direct case (People v Geraci, 85 NY2d 359 [1995]; People v Smart, 23 NY3d at

220).

Thus, at a Sirois hearing, the People have the burden of proving by clear and

convincing evidence that the witness’s unavailability is caused by the defendant’s

misconduct, or misconduct that is attributable to the defendant (Matter of Holtzman V

Hellenbrand, 92 AD2d 405 [2d Dept 1983]). The misconduct may be in the form of

threats, coercion, or chicanery either by the defendant, or the actions of others “with the

defendant’s knowing acquiescence” (see People v Geraci, 85 AD2d at 365). And

“[b]ecause witness tampering is a surreptitious activity rarely admitted by the defendant

or witness, few cases will involve direct evidence of the causal link between the

defendant’s misconduct and the witness’s” unavailability (People v Smart, 23 NY3d at

220). In those instances, the court may rely on circumstantial evidence and the sequence

of events to infer the requisite causation from the evidence of the misconduct and the

witness’s actions taken in direct response to that misconduct (People v Smart, supra,

citing, Matter of Holtzman v Hellenbrand, 92 AD2d at 415; People v Dubar,y, 25 NY3d

161, 176 [2015]).

New York courts have recognized the functional unavailability of a witness even

though the witness is physically available and willing to testify, but either recants their

prior testimony, or indicates a refusal to testify at trial in a manner consistent with their

prior accounts (see, eg, People v Cotto, 92 NY2d 68 [1988] [refusal to identify at trial]

People v Geraci, 85 NY2d at 363-64 [refusal to testify at trial consistent with grand jury

testimony]; People v Turnquest, 35 Misc3d 329, 337-38 [Sup Ct, Queens Cty 2012]

[recantation]).

24
 While the universe of case law in New York that addresses various scenarios

presented in the context of a Sirois hearing is relatively small, there is no doubt, in light

of recent public news stories publicizing the arrests of attorneys and investigators for

witness tampering and other improprieties, that the integrity of the criminal justice system

is being challenged and perverted by the actions of a few who will do whatever it takes to

get a case dismissed or to win an acquittal. The public policy and purpose of the forfeiture

exception to the right of confrontation is to reduce the incentive to tamper with witnesses

and to punish those who are proven to have done so. In this case, the People have met

their burden to establish by clear and convincing evidence that their witness, Erika King,

is now unable to identify defendant in court as the shooter and is, therefore, functionally

unavailable for Sirois hearing purposes as a result of the misconduct committed by

defendant’s private investigator, Manuel Gomez, and that defendant either knew of,

assisted or acquiesced in Mr. Gomez’s misconduct. Indeed, the evidence presented at

the Sirois hearing, although largely circumstantial, was truly overwhelming.

First, the hearing testimony and evidence established that Erika King had been an

eyewitness to the murder and had identified defendant in a photo array as the shooter.

She had, and currently has a detailed recollection of the events that day and had been

confident that she had correctly identified defendant as the shooter. Indeed, when she

was shown six additional photo arrays one year after the murder during the investigation

of Omar Bryan as the shooter, she recognized the faces of both Omar Bryan and his

brother, Shamir, as people that she must have seen while in New York but told Det.

Kaalund that they definitely were not the shooter.

Ms. King gave her testimony in the grand jury and defendant was indicted for the

murder and related charges. Although the murder had happened during Ms. King’s first

25
time in New York and had left her feeling as if she did not ever want to come back, she

had been willing to obey a subpoena to return to testify at trial. Before meeting with Mr.

Gomez, Ms. King had been certain that she had identified the right person.

This Court credits Ms. King’s account of her meeting with Mr. Gomez in all pertinent

aspects. Given that she had previously declined to speak to defense investigators, it

would not have made sense for her to then speak with Mr. Gomez after asking him if he

worked for the defense, unless he told her that he did not. It is apparent, therefore, that

Mr. Gomez, in fact, misrepresented who he was and tricked Ms. King into speaking with

him.

During the interview, Mr. Gomez made false assertions to Ms. King that were

clearly designed to malign the prosecutor in her eyes, make her believe that the NYPD

had not investigated the case and lead her to believe that she had not identified the right

person as the shooter, with the goal of eliminating her as an identifying witness at

defendant’s trial. Mr. Gomez mislead Ms. King by offering Google maps photos that he

claimed showed that defendant was nowhere near the park when the shooting occurred

when, in fact, the photos may merely have showed the general location of defendant’s

cell phone. He made knowingly false statements to the effect that Omar Bryan was the

shooter and had fled the country within a few days after the murder, despite having sat

through the Primo hearing during which there was ample evidence that Omar Bryan had

been investigated, excluded as the shooter, and had not left the country immediately after

the murder. He even showed Ms. King a photograph of Omar Bryan, and then lied about

his actual appearance when she told him that his build was different from the shooter’s.

Using his cell phone, he showed Ms. King an article about another of ADA Ross’s cases,

falsely telling her that the prosecutor had a history of railroading people. Indeed, Ms. King

26
would not have known about such an article unless he showed it to her. He showed Ms.

King the videotaped statements of defendant’s alleged alibi witnesses but did not tell her

that the witnesses were the defendant’s friends, several of whom lived on the same block

within doors of defendant’s house and that they had only been discovered as purported

alibi witnesses through the actions of defendant and Mr. Gomez more than three and

one-half years after the murder.

Indeed, it was not until Manuel Gomez ambushed Ms. King at her job, lied to her

about who he was, and fed her false information that she no longer had confidence in her

identification of defendant as the shooter and her confidence in ADA Ross’s integrity had

been eroded. Given that defendant’s trial had been scheduled to begin October 17, 2017,

the timing of Mr. Gomez’s shenanigans - - all made public during the October 16, 2017 I-

Team news report, and the outrageousness of what he did to Ms. King belies his true

intent. This was not a true investigation; rather, Mr. Gomez’s intent was to eliminate Ms.

King as the sole identifying witness and derail the trial which he definitely accomplished.

After meeting with Mr. Gomez, hearing his false and misleading statements and seeing

the videotaped statements of the alleged alibi witnesses, Ms. King was no longer

confident in her identification, believing that no one else had been investigated, and made

a videotaped statement and signed an affidavit claiming to have been urged to pick the

wrong person, coerced and victimized by the prosecution. Mr. Gomez even went so far

as to tell Ms. King that ADA Ross had lied to her about the consequences of ignoring a

subpoena to testify in court, despite knowing full well that an arrest would be possible.31

Although she has come to learn that Mr. Gomez had deceived her, his trickery at that time

3 1 Indeed, Mr. Gomez, himself, had told Melvin Anderson the very same thing when he served him with a
subpoena.
27
confused her, and has rendered her unab’e to confidently identify defendant in court as

the shooter. She is, therefore, functionally unavailable in the context of this Sirois hearing

(see People v Cotto, 92 NY2d at 73 [although witness was physically available to testify,

witness testified that he could not identify the shooter]).

Clearly, the functional unavailability of Ms. King is a direct result of Mr. Gomez’s

deception and misleading tactics. Although Mr. Gomez conceded on cross-examination

that a private investigator must review all of the documents, police reports, crime scene

pictures, witness statements and anything else that is relevant to the case in order to do

a thorough investigation, in this case, Mr. Gomez reviewed a mere fraction of the more

than 11,000 documents covering all aspects of the police investigation and the case. In

fact, he only admits to seeing the photo arrays or documents that he has used to press

his false narrative of police and prosecutorial coercion and corruption.

Mr. Gomez’s testimony on the witness stand was deliberately evasive and

reflective of outright incompetence in regard to his investigative techniques and the

sources of the information he supposedly gathered. He stated, “Maybe I did; maybe I

didn’t,” or “If it says that, then that’s what it is,” or simply, “I don’t recall.” The haziness of

his recollection on anything that does not fit within his agenda is, in part, because of Mr.

Gomez’s disclosure that other than videotape statements of witnesses or written

affidavits, he takes no notes whatsoever. The effect is that he has little to no verifiable

information or memory of the source or basis of investigative information that he comes

across and testified that he does that deliberately, so that he does not have to turn over

anything in court.

Mr. Gomez claimed that defendant’s prior attorney, Victor Knapp -- who has been

working in the Queens Supreme Court system for well over 40 years and is considered
28
in all respects a professional, competent, experienced attorney with a stellar reputation -

- was not helpful and did not provide him with much information until the end. How, then,

can it be believed that Mr. Gomez somehow conducted a thorough investigation into a

three-year-old murder case without any assistance from the defense attorney and without

reviewing the documents and evidence? It is simply not believable.

Indeed, throughout the first three-year pendency of this case, there was never an

allegation or any notice that there were physical alibi witnesses. In fact, the only

semblance of an alibi advanced by Mr. Knapp was in the form of GPS logs, purportedly

from defendant’s cell phone, which appeared to indicate that his cell phone was in a

location other than at the place of the murder. Nevertheless, Mr. Gomez, retained without

Mr. Knapp’s knowledge and, in an extremely short period of time, suddenly “discovered”

several alibi witnesses. This Court was even more shocked when it learned that these

so-called alibi witnesses, who claim that on the date and time of the incident the defendant

was on the same block where they lived and they all live on the same block as the

defendant --some of them within doors of his own residence. The videotaped statements

of each of these witnesses were recorded in the defendant’s own home by Mr. Gomez,

who secured the affidavits and videotaped witnesses one after the other. The cell phone

records that the People entered in evidence showed multiple cellphone calls between

defendant and most of those witnesses on the dates of their interviews, but not between

those witnesses and Mr. Gomez. Thus, it is simply not believable that these witnesses

were located by the efforts of Mr. Gomez, as opposed to being directed to him by the

defendant, their friend and neighbor.

This Court believes Mr. Gomez’s so-called “investigation” was nothing but a sham;

a ruse to attack the NYPD and ADA Ross to bring attention and notoriety to himself, his

business and his agenda, which was reflected in many of his outbursts during the hearing.
29
Indeed, Mr. Knapp asked to be relieved from representing defendant for ethical reasons

after the sudden production of these so-called alibi witnesses and the Sarah Wallace

news clips about the case. This Court knows of no other instance where a privately

retained attorney has asked to be removed from a case because his continued

involvement in the case in light of the actions of his client and the private investigator has

caused him to believe that he may be violating his ethical obligations as an attorney.

The credible hearing testimony and evidence, therefore, established that Mr.

Gomez, in fact, engaged in misconduct in his contact with Ms. King and was the direct

cause of her becoming functionally unavailable to identify defendant at trial in the manner

she did during her prior grand jury testimony. The evidence clearly showed that Mr.

Gomez visited Ms. King in North Carolina not to hear her side or to further investigate the

case, but to deceive and mislead her, turn her and disqualify her as a witness in the

upcoming trial. And if tampering with the witness and derailing the case was not enough,

the major parts of Mr. Gomez’s distorted work ultimately were wrapped in a nice neat

package and aired by Sarah Wallace during her News 4 New York investigative news

show, just one day before jury selection was to commence.

Finally, the circumstances surrounding the hiring of Mr. Gomez and his misconduct

all support the inference that defendant knew what Mr. Gomez was doing, assisted him

and acquiesced in it because it was for his benefit - - attempting to get his case dismissed

for lack of an identification witness. Normally, a defense attorney hires a private

investigator to assist with a case. This is usually so because the attorney and the private

investigator will have formed a bond of trust and understanding over time that provides

them with a unique professional relationship when working for the best interests of the

client. This is particularly true in criminal cases because much of the evidence in the case

comes from the prosecutor during the discovery process. The private investigator then
30
works with the defense attorney to explore options for strategy and investigation methods.

They discuss and review the charges, the facts and all of the available evidence, including

police reports, photographs, video, scientific evidence and written statements by all

witnesses, including the defendant. Armed with this information, the private investigator

then looks for “gaps” or inconsistencies in the evidence to assist with finding any available

evidence that is consistent with the defense strategy, as determined by the defense

attorney.

Here, Mr. Gomez was hired, not by Mr. Knapp, defendant’s prior attorney, but

purportedly by the defendant’s mother for the sole purpose of having him locate witnesses

that were not interviewed by the prosecution and any other witnesses. Mr. Gomez claims

to have been hired sometime in the month of August in 2017 and claims that other than

the stated purpose, the defendant never asked him to undertake any task regarding the

investigation. To be clear, the Court does not credit Mr. Gomez’s testimony regarding who

hired him. This Court requested that Mr. Gomez produce the retainer agreement on at

least four occasions over a two-month period, including through a court-ordered

subpoena duces tecum, and Mr. Gomez failed to do so. Even after Mr. Gomez testified

that the defendant’s mother paid him $6000.00 and they both signed a written retainer

agreement, he still only produced a typed document that does not bear any signatures.

Mr. Gomez conceded, however, that he was obtaining “evidence” for the defendant.

Indeed, the cell phone records show hundreds of calls between defendant and Mr. Gomez

during the times relevant to this hearing. Defendant was in contact by cell phone with at

least six out the seven alleged alibi and other witnesses on the days when they gave

written and videotaped statements to Mr. Gomez. In fact, most of their statements were

taken at defendant’s home with defendant present in the house. Mr. Gomez, however,

was not in contact with the witnesses by cell phone. Defendant was even in frequent
31
contact with Mr. Gomez in the days before and after the Erika King interview, as well as

that same day. It would be naïve to believe that during these numerous phone calls while

he was in North Carolina, he did not tell defendant exactly what he was doing.

In addition, the fact that defendant brought on Mr. Gomez as his private

investigator without any input from his then-attorney, Mr. Knapp, and did not tell his

attorney speaks to the intention behind his doing so. The fact that Mr. Knapp asked to

be relieved largely for ethical reasons after learning that Mr. Gomez was working for the

defendant and had somehow produced several purported alibi witnesses is a good

indication of why defendant did not tell Mr. Knapp or include him in whatever Mr. Gomez

was doing for his defense in the first instance. What actually transpired suggests that

defendant knew that Mr. Gomez would do whatever was required, whereas Mr. Knapp

would not go beyond his ethical limitations.

The hearing evidence also showed that defendant played a substantial part in

helping Mr. Gomez construct the videotaped statements he showed to Ms. King, by

directing him to individuals - - his friends and neighbors - - who were willing to say that

defendant was on the block with them when the murder occurred, or some other story

meant to exonerate defendant. The veracity of these statements and legitimacy of the

witnesses is questionable, at best, given their relationship with the defendant, proximity

to his home and failure to come forward in the three and one-half years since defendant’s

arrest. Indeed, the pattern of cell phone contact between defendant and his alleged alibi

witnesses, and defendant and Mr. Gomez when he interviewed Ms. King, do not reflect

an independent investigation and course of action by Mr. Gomez, but rather, a concerted

course of conduct and action in which defendant provided dubious witnesses for Mr.

Gomez to use to persuade Ms. King to believe that she may have identified an innocent

man.
32
 Considering the circumstances surrounding the hiring of Mr. Gomez, defendant’s

almost constant communication with Mr. Gomez on his cell phone, and the causal link

between much of the “evidence” Mr. Gomez used to confuse and mislead Ms. King and

the defendant, the only reasonable inference to be drawn is that defendant knew exactly

what Mr. Gomez was doing such that the misconduct of Mr. Gomez is directly attributable

to defendant, as well. Although there are no Sirois hearing cases cited in New York that

involve the misconduct of a defendant’s private investigator, the substantial and

overwhelming Sirois hearing evidence in this case, as well as public policy to protect the

integrity of the adversarial process by preventing a person from obtaining an advantage

from his own wrong (see People v Geraci, 85 NY2d at 366), support the extension of

liability for the misconduct of the private investigator in this case to the defendant.

Accordingly, the People have met their burden of establishing by clear and

convincing evidence that Mr. Gomez’s misconduct was known about, assisted and

acquiesced in by the defendant, and that misconduct caused Ms. Erika King to no longer

be able to identify defendant as the shooter, rendering her unavailable in the context of

this hearing. Therefore, the People will be permitted to introduce in evidence at trial Ms.

King’s grand jury testimony and defendant is precluded from objecting to the admission

of that prior testimony on confrontation clause or hearsay grounds. The defense will also

be precluded from using for impeachment purposes any of the statements that Mr. Gomez

obtained from Ms. King through his misconduct. Under the circumstances, to allow

evidence of those prior inconsistent statements would open the door to the manner in

which the statements were obtained and would be nothing more than a distraction at trial.

In any event, given the impropriety in how the statements were obtained, they’re

admission would be more prejudicial than probative of Ms. King’s credibility.

33
Re-opened Wade hearing

The sole basis for re-opening the hearing was to determine whether there was any

undue suggestiveness in the way that the detectives conducted the August 11, 2014

photo array with Ms. King. Ms King testified that a male and a female detective were

seated across the table from her at the time. Although her recoHection was that the male

detective read the photo array instructions to her, Det. Romance testified that she, in fact,

was the detective who read the instructions to Ms. King. Ms. King testified that from her

perspective, she thought that the detective’s eyes were focused on the bottom of the

paper when reading the instructions but could not tell if he was looking at any particular

person. She also testified that the photo array was taken out of a manila folder and given

to her after the instructions were completed. Ms. King testified that she looked at all of the

photographs before identifying the person she recognized as the shooter.

Under the circumstances, there is no basis for this Court to conclude that Ms.

King’s identification of defendant was the product of any undue suggestion by the police.

Even assuming that she believed one of the detectives was looking at the bottom row of

the page, she affirmatively testified that there was no focus on any one particular person

and that she looked at all of the photographs before making a selection (see People v

Killimayer, 40 AD3d 1118, 1119 [2d Dept 2007], quoting People v Mack, 243 AD2d 731

[2d Dept 1997]). Accordingly, the motion to suppress identification testimony is denied.

Finally, although normally, evidence of a pretrial photographic identification would

not be admissible, this Court finds that “the maxim that the law will not allow a person to

take advantage of his own wrong” should apply in equal force to the photo array evidence

in this case. In People v Perkins (15 NY3d 200 [2010]), the Court of Appeals, relying on

a Sirois decision in People v Geraci (85 NY2d 359, 366), affirmed a trial court’s ruling that

34
the defendant, who had refused to cooperate in a lineup, had forfeited the right to rely on

evidentiary rules that ordinarily barred the admission of photographic identification

evidence. Since the misconduct in this case has thwarted the ability for an in-court

identification to occur, this Court sees no logical or rational distinction between the facts

in People vPerkins, and this case. Accordingly, since Ms. King has been rendered unable

to make an identification at trial as a result of misconduct attributable to the defense, the

Court finds that the People are also entitled to the additional remedy of permitting

evidence of Ms. King’s pretrial identification of defendant in a photo array.

Order entered accordingly.

The clerk of the court is directed to forward a copy of this order to the attorney for

the defendant and to the District Attorney.

E1NETH C. HOLDER, J.S.C.

35