On the evening of February 3, 1999, a tall, heavy-set white man entered the El Classico Restaurant in Brentwood, New York, and ordered a meal to take out. As he was waiting, he asked the waitress, Otilia Ruiz, for a dollar. When she refused, he opened the cash register and scooped out the cash. When Ruiz screamed, he pulled out a knife and brandished it before running from the restaurant.
Jose Velasquez, the restaurant owner and cook, was preparing the customer’s meal when he heard Ruiz scream. He ran out of the kitchen to see the robber fleeing, then ran outside and saw the man get into a beige-colored car and drive off. Velasquez gave chase in his own vehicle, but the robber escaped. Velasquez told police the car had a license plate containing the letter “T” and the number “1.”
The following day, Brentwood police brought a photographic array to the restaurant and Velasquez selected the photograph of 35-year-old Stephen Schulz, who had a prior conviction for grand larceny. When police showed the photos to Ruiz, she was unable to make an identification, but Velasquez pointed to Schulz and said he was the robber.
Schulz was arrested and police brought his roommate’s car to the police station, where Velasquez identified it as the getaway car.
Schulz went on trial in August 1999 in New York Supreme Court. Velasquez identified him as the robber. On cross-examination, Velasquez admitted that the car he identified as the getaway vehicle—which belonged to Schulz’s roommate—did not contain a “T” or a “1.” Velasquez also admitted that at the time of the robbery, he had a pending charge of illegal gun possession which could have adversely affected his ability to keep the restaurant’s liquor license. That charge had been plea-bargained down to a disorderly conduct conviction, but Velasquez denied he had gotten a deal from the prosecution in return for his testimony.
Ruiz was called as a witness to describe the events of the robbery, but she was unable to identify Schulz. Schulz’s attorney, Barry Levine, did not cross-examine Ruiz.
A police detective testified that the initial description of the robber was 6 feet, 2 inches tall, weighing about 250 pounds with “rotten teeth.” He said that after two other police officers suggested that Schulz fit the description, he went to Schulz’s residence, where he saw a car fitting the getaway vehicle description.
On cross-examination, Levine attempted to establish that another man, Anthony Guilfoyle, was the robber. Sometime after the El Classico robbery, Guilfoyle had been arrested for several other robberies in the Brentwood area, including one that occurred just three hours prior to the El Classico robbery. Because Guilfoyle was about 6 feet, 4 inches tall and weighed more than 450 pounds, the detective discounted him as a suspect because he was too big. At the time of trial, Guilfoyle was in custody after being charged with six robberies in 1999: two in January, three in February and one in March.
Levine attempted to enter a photograph of Guilfoyle into evidence, but his request was rejected because he had failed to present sufficient evidence to link Guilfoyle to the crime. Levine did not present any other evidence. On September 2, 1999, a jury convicted Schulz of armed robbery and assault. He was sentenced to 11 years in prison.
In 2000, Schulz filed a handwritten motion to vacate the conviction based on the failure of his lawyer to call an alibi witness. Schulz’s roommate, Anthony Tralongo, came to court prepared to testify that he and Schulz spent the night of the robbery cooking dinner and watching television, but was never called to the witness stand.
That motion was denied without a hearing. In 2002, William Hellerstein and Daniel Medwed at Brooklyn Law School’s Second Look Clinic began re-investigating the case. Schulz took and passed a polygraph test.
Ruiz gave a sworn affidavit stating that she did not identify Schulz even though prior to the trial, Velasquez told her that if she did not identify Schulz, he would be set free and come back to harm her. At that time, Ruiz was shown a photograph of Guilfoyle and she said she was 90 percent sure Guilfoyle was the robber. She was positive, she said, that Schulz was not the robber.
Tralongo said in a separate affidavit that he was ready to testify, but that Schulz’s lawyer told him that he wasn’t needed.
Schulz’s attorney provided an affidavit saying he had asked the prosecutor to interview Ruiz before she got on the witness stand, but had been rebuffed. Levine said he intended to show a photograph of Guilfoyle to Ruiz, although he never did so when she was on the witness stand.
In February a motion for a new trial based on the affidavits was denied without a hearing. In 2004, the conviction was upheld by the Supreme Court’s Appellate Division. In 2005, the New York Court of Appeals also upheld the conviction, although Judge Albert Rosenblatt dissented, writing that Schulz should have gotten a hearing on his motion because “the possibility of defendant’s actual innocence is too high to justify denial.”
In response to the dissent, the Suffolk County District Attorney’s office conducted a re-investigation of the case. Schulz was interviewed and denied the crime. Guilfoyle was interviewed and though he admitted committing a robbery about three hours before and 10 miles away from El Classico, he said he could not remember what he did afterward. The prosecution concluded there was “simply no reliable evidence” to conclude that anyone besides Schulz committed the El Classico robbery.
In June 2006, a federal petition for a writ of habeas corpus was filed on behalf of Schulz. A hearing was held in October 2007. By then Schulz’s roommate, Tralongo, and his trial attorney, Levine, were deceased.
The trial prosecutor denied preventing Levine from interviewing Ruiz or from showing her a photograph of Guilfoyle. Schulz testified that when he asked Levine why Tralongo was not called, Levine told him that they would win the case without the alibi testimony.
On November 9, 2007, U.S. District Judge Luis Marshall granted the petition, ruling that Levine had provided an inadequate legal defense. The judge cited Levine’s “wholesale abandonment” of Tralongo and his failure to seek to interview Ruiz before trial or question her about Guilfoyle when she was on the witness stand. The judge also noted that Schulz’s lawyer had failed to investigate Guilfoyle, whose wife drove a car with a license plate containing the letter “T” and the number “1.”
In September 2009, the Second Circuit U.S. Court of Appeals upheld the decision. The Suffolk County District Attorney’s Office then dismissed the case and Schulz was released.
– Maurice Possley