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Ricardo Benitez

Other Robbery Exonerations with Mistaken Witness ID
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On the morning of June 24, 2009, a man wearing sunglasses and a hoodie robbed a Radio Shack store on Rockaway Beach Boulevard in Queens County, New York. The robber pointed a gun at store clerk Bernadette Johnson and escaped with about $300 in cash.

Johnson told the police that the robber was a light-skinned Hispanic man, about 5 feet 6 inches to 5 feet 8 inches tall, and that he was wearing dark pants and a dark-colored hoodie. The following day, Johnson, who was black, viewed mug shots on a police computer, but was unable to identify anyone because the sunglasses and hoodie masked the robber’s face.

A week later, however, Johnson reported that she was walking on the street near her house and saw the robber sitting in a car parked at a red light. She said she stared at the man for five minutes while the car remained at the red light and realized the man was the robber. The following day, she viewed a photo array at the police station and selected the photograph of 54-year-old Ricardo Benitez as the robber.

Benitez was arrested and put in a live lineup. The five others who stood with Benitez in the lineup were all 20 years younger and white while Benitez, who was Hispanic, had a dark tan. Johnson again identified Benitez as the gunman.

In August 2010, a hearing was held on a motion by Benitez’s attorney to suppress evidence of the identification. The prosecution conceded the live lineup was unduly suggestive and agreed that it would not introduce testimony at trial about Johnson’s identification of Benitez at the live lineup.

At the hearing to determine whether she had an independent basis apart from the tainted lineup to make an in-court identification at trial, Johnson’s description of the robber had improved considerably. Johnson testified she stared at the robber’s face for about five minutes during the robbery, which she claimed lasted 30 minutes. She said the robber was an “older gentleman,” in his 50s. He had a sunken jawline, a goatee, a light complexion, brown eyes, “a bit of an accent,” and a limp. Benitez was walking with the assistance of a cane when he was arrested. Despite the changes in her description, the court ruled that Johnson could make an in-court identification at trial.

In October 2010, Benitez went to trial in Queens County Supreme Court. Johnson told the jury that she looked at the robber’s face for several minutes—although security video showed that the entire incident lasted about one minute and she only faced the robber for a few seconds. She identified Benitez in court as the robber, saying she could see through the robber’s sunglasses that he had brown eyes.

In addition, a detective testified that he received an anonymous tip that the robber was a man named “Rick” who lived on Rockaway Beach Boulevard in an apartment building near the Radio Shack store. The detective said he arrested Benitez in front of the apartment building.

During closing argument, the prosecutor told the jury that the anonymous tip corroborated Johnson’s identification of Benitez. On October 19, 2010, the jury convicted Benitez of armed robbery. He was sentenced to 22 years to life in prison.

Attorneys from Dechert LLP represented Benitez pro bono on appeal, following a referral by the Legal Aid Society. Dechert’s appeal focused on the anonymous tip, which was exploited by the prosecutor in closing argument. In addition, Dechert argued that the defense attorney had failed to provide an adequate legal defense by, among other things, not calling a witness who was an expert in eyewitness identification.

In August 2014, the Appellate Division of the Queens County Supreme Court reversed Benitez’s conviction and ruled the prosecutor’s closing argument reference to the anonymous tip was improper.

“The only purpose of the prosecutor’s improper comments was to suggest to the jury, in this one-witness identification case, that (Johnson) was not the only person who had implicated the defendant in the commission of the robbery,” the court said. “The defendant, of course, was given no to opportunity to cross-examine the unnamed witness who had allegedly provided the tip.” The decision did not discuss the claims relating to the expert witness.

In March 2015, Benitez went to trial for a second time in Queens County Supreme Court. Dechert attorneys Matthew Mazur and Amanda Tuminelli represented Benitez at the retrial. This time, the defense called Steven Penrod, a professor at John Jay College of Criminal Justice and an expert in eyewitness identification research. Penrod testified that numerous factors were present that research has shown adversely affect a witness’s ability to accurately identify a perpetrator—the cross-racial nature of the identification (Johnson was black and Benitez was Hispanic), the presence of a gun, the use of sunglasses and a hoodie, and the very brief time the witness and the robber were in close proximity.

The defense also called an official from the city of New York who testified that a red light changes to green in less than a minute. That testimony undercut Johnson’s claim that she saw Benitez in a car at a red traffic light and watched him for five minutes before the light changed and the car moved on.

On March 11, 2015, the jury acquitted Benitez and he was released after nearly six years in custody.

Attorney Joel Rudin subsequently filed a lawsuit on Benitez’s behalf in the New York Court of Claims. The lawsuit was settled in 2017 for $675,000.

– Maurice Possley

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Posting Date: 4/12/2017
State:New York
County:Queens
Most Serious Crime:Robbery
Additional Convictions:
Reported Crime Date:2009
Convicted:2010
Exonerated:2015
Sentence:22 to life
Race:Hispanic
Sex:Male
Age at the date of crime:54
Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No