VERA v. THE STATE OF NEW YORK, #2008-016-002, Claim No. 102187
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Fred Lichtmacher, Esq.
Andrew M. Cuomo, Attorney
Generalby: Michelle M. Walls, AAG
January 7, 2008
See also (multicaptioned
This is the decision following the liability trial of the claim of John Vera
brought under the Unjust Conviction and Imprisonment Act (§8-b of the Court
of Claims Act). Mr. Vera had been convicted of his participation in the robbery
of a family that owned a grocery store in Brooklyn.
The robbery covered two sites, Diana’s Grocery and the owners’
residence on South Third Street, also in Brooklyn. On Friday, January 6, 1994,
some time after 11 p.m., two persons pushed their way into the South Third
Street apartment of the Garcias. They threatened the family, which included Mr.
and Mrs. Garcia and their two daughters, aged 9 and 14, to force Bernardo Garcia
to give them the keys to the grocery and the safe they thought was at the store.
At some point, at least one more member of the gang came into the apartment
during the night of January 6 - January 7. There were other individuals who
were part of the robbery gang at the grocery, and they used walkie-talkies to
On March 4, 1994, John Vera, who lived in the neighborhood, was arrested
shortly after stopping into the Garcia store to buy a snack. He was the only
individual who was tried for the crime; the others who were apprehended pled
guilty. A jury found Vera guilty of six counts of robbery in the first degree,
four counts of robbery in the second degree, five counts of burglary in the
first degree and two counts of assault in the second degree (cl exh 4, ¶3;
People v Vera, 235 AD2d 509, 653 NYS2d 360 (2d Dept 1997)) .
On February 6, 1995, claimant was sentenced to terms of 6 to18 years on the
first degree robbery and burglary counts; 5 to 15 years on the second degree
robbery counts and 2 to 6 years on the assault counts - - with all the time to
run concurrently (cl exh 4, ¶3), and he was received soon thereafter into
the custody of the State Department of Correctional Services.
Vera was released from the Arthur Kill Correctional Facility on January 27,
2000 on a writ of habeas corpus. On February 10, 2000, Justice Louis Marrero
granted Vera’s motion pursuant to paragraph (g) of CPL §440.10.1
(the discovery of new evidence): the conviction was vacated and all charges
against him dismissed (cl exhs 7 & 23).
John Vera has always maintained his innocence - - that he was home on the night
of the robbery. When claimant was arrested in the early evening of March 4,
1994, he said, “you’ve got the wrong guy” (cl exh 2).
Detective William Soto, who made the arrest, testified that Vera had not tried
In January 1994, Vera was 20 years old, and had lived in the neighborhood for
sixteen years in the house that his mother owned at 71½ Maujer
Upon his release from prison in 2000,
he returned there to live. At the time of the robbery, claimant was working for
Washington Inventory Services in Bayside, Queens as an inventory specialist with
the responsibility of traveling to various stores and checking their merchandise
levels. In January of 1994, Vera was working Monday through Friday with some
weekend work. With a two-hour commute each way, he would leave for work at 4
a.m. and return in the evening around 8 or 8:30. Vera recalled that he started
working part-time in late February or early March of that year.
The Garcias’ grocery at 322 Union Avenue was a block or two away from
Vera’s residence. The day of the arrest, March 4, Vera had intended to
get a haircut at a barbershop that was next door to the Garcias’ grocery.
Claimant walked into the store, bought a soda and a bag of potato chips, then
went into the barbershop where “I got my spot.” While waiting his
turn, Vera crossed the street to where he had seen “some guys from the
neighborhood that I know.” That is where he was arrested.
Vera has two prior convictions, which defendant contends undercuts
claimant’s credibility as showing, per the formulation, that he puts his
interests above those of society. See Morales v State of New York, 183
Misc2d 839, 845-46, 705 NYS2d 176, 180 (Ct Cl 2000), affd 282 AD2d 245,
722 NYS2d 860 (1st Dept 2001).
Claimant had pled guilty to a misdemeanor involving lighting a firecracker that
“blew up” on July 4 in 1993, and then for being part of a group that
set fire to an abandoned car. With respect to the latter, Vera pled guilty on
December 3, 1993 to attempted arson in the third degree, a class D felony, and
was sentenced to probation on January 14, 1994 (cl exh 3). It seems odd that
during the few weeks between pleading to arson and being sentenced for it, Vera
would have taken part in the fairly complex Garcia robbery.
Claimant’s sister, Norma Vera, testified that in January of 1994, she
lived with claimant on Maujer Street with her eight or nine-year old son, mother
and one of her sisters. The Maujer Street residence is two stories; the
witness’ bedroom was on the second floor. There was one door out to the
street that everyone used. Ms. Vera explained that the door was noisy, and she
could hear if anyone left and then “easily see who’s there.”
Her recollection was that John did not leave the house that night.
The witness explained that she remembered the comings and goings of her brother
because her sister Betty had been married the previous weekend, and on Friday
evening, Daniel Buduen,
married her sister Blanca, came over with photos of the wedding. Norma Vera
testified that Mr. Buduen arrived at “around 9:45 [p.m.], and he stayed
there for a very long time.” Norma testified that she went up to the
second floor to go to bed at about midnight or a little later.
Antonio Cepeda took a plea in the Garcia robbery - - attempted burglary in the
third degree, which is a class E felony. Mr. Cepeda had a clear incentive for
telling the truth about the robbery: he testified that he was facing
considerable time and under the plea agreement, was sentenced to a term of one
and a half to three years and served two years.
The witness explained that he knew all of the actors involved in the robbery,
adding that they met later to split up the cash. He noted there may have been
people who “gave us the crime,” but he knew everyone on the scene,
or at least what they looked like and their street names. At the 8-b trial,
Cepeda was given a good look at John Vera, and testified that he did not know
him at all.
Cepeda testified that he, Anthony Mann (“Freeze”) and an individual
he knew only as “J. Rock” (otherwise identified as Jay Perez)
entered the Garcia residence. Mann, like Cepeda, was very dark-skinned and tall
- - 6' 2" or 6' 3." J. Rock was much shorter and relatively light-skinned.
“It was five of us, if I recall.” The other two that Cepeda named
were Richie Rodriquez and “Red” - - “That’s Eddie
Mr. Rodriquez entered a plea to one of the counts he was charged with in the
Garcia robbery, attempted robbery in the second degree, a class D felony (cl ex
26, p. 3). However, one Edward Estrada took the stand in this trial and denied
involvement in the Garcia robbery.
Cepeda initially said that his crew had “masks” on, but then
explained that he meant some sort of covering: “everybody had their own
stuff on,” such as winter hats pulled down, a scarf worn up or a hood
pulled very close. As for himself, “You [could] only see my eyes.”
In Cepeda’s testimony, the only intruder who could have been John Vera was
J. Rock. He said that J. Rock was wearing something to conceal his face,
although he could not recall what it was.
On cross-examination, defendant’s counsel pointed to the witness’
subsequent drug conviction as generally undermining his credibility. Cepeda
conceded he was not in the apartment the whole time, but there is nothing in his
testimony to suggest that the perpetrator in question was someone that Cepeda
was not familiar with.
Anthony Mann admitted his involvement in the Garcia robbery in two statements
to the police on November 9 and 15 of 1999
subsequently took a plea thereon. Mr. Mann did not testify in person here
despite the assiduous efforts by claimant’s counsel to secure his
Mann’s statements satisfy the requisites for use as a declaration against
penal interest. People v Brensic
, 70 NY2d 9, 517 NYS2d 120
I am unpersuaded by defendant’s
argument that using it to describe who else was (and was not) involved in the
Garcia robbery is inadmissibly collateral. Such facts are sufficiently closely
connected to the actions and potential criminal liability of Mann when he made
the statements. See Prince, Richardson on Evidence
ed, 2005 Supp.); People v Johnson
, 92 NY2d 976, 978, 683 NYS2d 754, 755
(1998); Basile v Huntington Utilities Fuel Corp.
, 60 AD2d 616,
400 NYS2d 150 (2d Dept 1977).
Mann stated that, in all, eight persons were part of the robbery crew. He
added to the five names Cepeda identified: the so-called mastermind, Jay (real
name Albert Cintrone), whom he identified from a photo that the police showed
him (NYSID number 6476169); a man named Jorge, who he recalled entered the
apartment later; and a street lookout who’s first name was Elvis. Former
Kings County Assistant DA Karen Bennett testified that there was an individual
involved in the crime that they were never able to identify: “I believe
one referred to him as Eddie and one referred to him as Jorge or something along
Mann identified Cepeda from a photo (NYSID number 7131144), and said that
Cepeda left the apartment with the keys to the Garcia grocery. At some point,
J. Rock and Richie Rodriquez went up into the Garcias’ apartment. He
identified J. Rock as Jay Perez, NYSID number 7174677. He said that J. Rock was
about 5' 8" tall and gave the same height for Jorge. Vera is 5' 3" (cl exh 7).
Mann was shown a picture of Vera (NYSID number 7544681), and responded that he
did not know him and that he was not involved in the Garcia robbery. He stated
that “everybody had on masks and everything.”
Mann’s statements, while confirmatory of Cepeda’s testimony that
claimant was not part of the robbery crew, were weaker than Cepeda’s. We
did not, of course, have the benefit of evaluating in person the demeanor
accompanying Mann’s narrative, nor how it would stand up to
cross-examination. Moreover, in his November 15 statement, Mann conceded that
he had lied on the first day of his statements to the police when he said he
waited on the street; on November 15, he stated that he was one of the first
ones in the apartment and had, among other things, struck Mr. Garcia several
Defendant State of New York maintains that Vera has not proven his innocence by
clear and convincing evidence. Defendant, which did not put on its own case,
pointed to a number of weaknesses in claimant’s case (in addition to those
noted in the section above), including: (i) the failure to call additional
members of his family to confirm his alibi; (ii) that Cepeda’s testimony
was undercut because a person he identified as being part of the robbery, Edward
Estrada, was never charged with the crime, never admitted it and when he did
testify at our trial here, denied his involvement; and (iii) the criminal trial
testimony of Mrs. Ramona Garcia, and to a lesser extent, the trial testimony
then of her husband Bernardo and daughter Yaniris (cl exh 29).
Items i and ii do not require elaboration as does the 1995 testimony of members
of the Garcia family (cl exh 29). Yaniris testified at both the criminal and
civil trials of Vera. Her mother and father, Ramona and Bernardo, testified
only at the first trial. (On March 27, 2007, the Court signed subpoenas
requested by claimant’s lawyer for their presence at trial on June 6,
This robbery was not a momentary encounter on the street; the Garcias were held
in their apartment for at least two hours - - in theory, there was time to get
a look at the intruders. But the robbers covered, or partially covered their
faces. For example, from Mr. Garcia’s testimony:
Q. Did the person who robbed you that day have a mustache?
A. I can’t say that because he had - - he was covered.
Mr. Garcia was held face down so that he could not see what was going on in the
apartment, and at some time point during the robbery, a sheet was put over him
to prevent him from seeing anything. At the 1995 trial, when Bernardo Garcia
was asked to identify John Vera, he pointed to a spectator in the courtroom.
Ms. Garcia had identified John Vera as one of the robbers at the criminal
trial, but on the stand at the 8-b trial, when asked if he was, responded,
“I don’t know.” Given the testimony that his face was
partially covered, consider the following ambiguous exchange from the criminal
Q. And could you see whatever you could of his face at that time?
That Ms. Garcia said she had seen Vera around the neighborhood and in their
store, to this trier of fact, may explain why she originally thought one of the
robbers was claimant. When in late 1999 or early 2000, Yaniris was shown photos
of John Vera and J. Rock (Jay Perez) by Ms. Bennett, the ADA testified that she
observed Ms. Garcia as being shaken by the similarity of their likenesses.
Despite claimant’s efforts (including the above referenced subpoena), the
only trial testimony we have of Ramona Garcia is from the 1995 criminal trial.
At that time, she pointed him out as one of the robbers, stating that she had
seen his face clearly, at about arm’s length, when the scarf covering his
face dropped and “I could see his face completely from his eyebrows to his
chin” and that she recognized him from coming into their store a few times
and “around there.” She went on to say that all the robbers in her
apartment were wearing hats and scarves, and that the scarves covered the neck,
mouth and up to the tip of the nose.
Mrs. Garcia was with Yaniris when the J. Rock/John Vera set of
were shown by the Assistant District
Attorney and she, recalled ADA Bennett, had a reaction similar to her
Under the Unjust Conviction Act, the claimant must prove by clear and
convincing evidence that he did not commit any of the acts that were charged in
the accusatory instrument.
claimant must prove, also by the clear and convincing evidentiary standard, that
he did not by his own conduct bring about his conviction, for example, by
As for proving that Mr.
Vera did not bring about his conviction, defendant conceded on the record that
such provision is not at issue.
Clear and convincing evidence is evidence which satisfies the trier of fact
that it is highly probable that what the party with such burden claims happened
is what actually did happen (PJI
1:64). The evidence cannot be
equivocal, contradictory or open to opposing
We have the testimony and statements of two persons who were part of the Garcia
robbery, and they both stated that claimant was not involved in the robbery.
Granted Mr. Cepeda has been convicted of this and other, subsequent, crimes,
which defendant contends diminishes his credibility, but to this trier of fact,
Cepeda’s testimony was credible, delivered in a matter-of-fact manner that
was not pat or contrived, and no reason was advanced why he would have risked
lying at this trial.
No witnesses took the stand at the 8-b trial to testify that Vera was part of
the Garcia robbery; defendant rested without putting on a case. Nor was any
physical evidence presented linking claimant to the crime, such as fingerprints,
fiber evidence or ownership of one of the guns that was brandished at the
As for identification, the scarves across the faces were good reason to
conclude that it was difficult to get a good look at the robber Vera had been
convicted of being. Mr. Garcia pointed to the wrong person at the criminal
trial; his daughter Yaniris withdrew her criminal trial identification of Vera;
and we are left only with Mrs. Garcia’s original testimony which she was
apparently unwilling to defend at the 8-b trial, having been shaken when shown a
photo of Vera next to that of J. Rock.
The testimony from Vera’s criminal trial summarized above is that of
three family members who lived and worked together. In any event, it was less
probative than if three unrelated and unconnected persons had made the same ID
at such criminal trial.
To this trier of fact, the evidence is clear and convincing that John Vera was
not involved in the robbery of the Garcia family and with no evidence having
been adduced that he caused or brought about his convictions by his own conduct,
the defendant State of New York is liable to claimant under §8-b of the
Court of Claims Act. The Clerk of the Court is directed to enter interlocutory
judgment against the defendant on liability.
January 7, 2008
HON. ALAN C. MARIN
Judge of the Court of Claims
. The 8-b trial transcript spells
“Maujer” phonetically; see page 2 of claimant’s exhibit 7,
which lists Vera’s address.
. The spelling of “Buduen” is
taken from the criminal trial transcript, claimant’s exhibit 29.
. Claimant’s exhibit 14, tabs D & E;
claimant’s exhibits 17 and 18 are the corresponding audiotapes.
. See claimant’s exhibits 24 and
. The Court of Appeals, after Crawford v
, 541 US 36 (2004), barred the use of the plea allocution of a
non-testifying accomplice against a criminal defendant. People v Hardy
4 NY3d 192, 791 NYS2d 513 (2005). The use of the Mirandized
of Mann in this civil action brought by a former criminal defendant is
. More precisely, the Garcias were shown two
sets of photographs: one set was of Cameron Dotson and John Vera, the other of
Anthony Mann and J. Rock.
. In addition to Vera’s conviction on
one or more counts of Robbery I & II, Burglary I and Assault II, he was
charged with one or more counts of: Burglary II, Grand Larceny III & IV,
Unlawful Imprisonment II, Menacing II, and Endangering the Welfare of a Child
(Indictment No. 2681/94, Kings County). All 38 charged counts relate to the
unlawful intrusion into the Garcia residence, and therefore, if claimant can
prove by clear and convincing evidence that he was mistakenly identified as
being on the scene on January 6-7, 1994, he has satisfied the requirement that
he did not commit any of the acts charged in the accusatory interest.
. Paragraph (d) of §8-b.5. For examples
of bringing about one’s conviction, see the Report to the Legislature of
the Law Review Commission which accompanied the Commission’s draft
proposal that became the basis of the Unjust Conviction Act, McKinney’s
1984 Session Laws of New York
at p. 2932.
. On page 5 of its Post-Trial Memorandum of
Law, defendant suggests that paragraph (d), relating to bringing about
one’s own conviction, survives as an issue, but such is never developed in
its Memorandum, and given that defendant twice conceded otherwise at trial, this
reference will be discounted.
See Acosta v State of New
, 22 AD3d 367, 801 NYS2d 899 (1st Dept 2005); Alexandre v State of
, 168 AD2d 472, 563 NYS2d 635 (2d Dept 1990); and George Backer
. v Acme Quilting Co.,
46 NY2d 211, 220, 413 NYS2d
135, 139 (1978).