 (Photo: Robert Bell/Rochester Democrat & Chronicle)
An onlooker quickly called 911 at 8:02 p.m. and handed the phone to Mosely, who described the gunman as a young Black man, approximately 5 foot 9 inches, wearing a gray, hooded sweatshirt and blue jeans. Mosely would later tell police that a second, larger Black man was on a bicycle at the time of the robbery. This man lingered for about a minute afterwards, Mosely said, then rode south in the same direction as the robber.
The 911 operator dispatched the police, giving officers the description of the gunman that Mosely provided.
Officer Daryl Hogg with the Rochester Police Department began scouring the surrounding neighborhood and saw 21-year-old Anthony Miller and his friend, Aaron Hinds, about a half mile southwest of the robbery. They were standing in a driveway on Bradburn Street, a few houses away from where Hinds lived.
At the time, Miller, who was 5 foot 7 inches, was wearing a red sweatshirt, black wind pants, and unlaced Timberland boots. Hinds, who was 6 foot 4 inches, was wearing a gray sweatshirt.
Hogg first asked Miller and Hinds to show their hands, and then frisked Hinds. Shortly thereafter, Officer Dan Watson arrived and frisked Miller. The officers asked the men what they were doing in the neighborhood. The men said they had gone to a friend’s house nearby to get an MP3 player, but no one was home. The officers would note in their report that sounded fishy because a frisk of Miller turned up an MP3 player.
By then, Investigator Nolan Wengert had arrived at the crime scene and interviewed Mosely. Wengert wrote in his report that Mosely provided a more detailed description of the robber, noting the man had a chin-strap beard. Weingarten drove over to Bradburn Street, where Miller and Hinds sat in the back of the police cruisers.
Wengert knew Miller from a 2010 larceny conviction involving several incidents in the general vicinity of Roslyn and Genesee streets. Miller also had a chin-strap beard.
In Wengert’s report, he would write: “Miller matched the precise physical description given to me by (V) but with the exception of the tan boots had a different clothing description. I know it is a common criminal practice to change clothing and secrete stolen items immediately after a robbery.”
Hinds and Miller were driven back to Roslyn Street, where Wengert conducted a so-called “show up” viewing for Mosely. The officers paraded both men in front of Mosely. He said Hinds was the man on the bike, and that Miller was the gunman. “That’s him, the guy that robbed me,” Mosely said. “He just changed clothes.”
Hinds was released and not charged. He gave police consent to search his home, and the search did not turn up a weapon, any of the stolen items, or the clothes that Miller was said to have previously worn.
Miller was arrested and taken to the police station. Miller told Wengert that he and Hinds had been outside at the time Hogg spotted them because he was using the free Wi-Fi from one of the houses to send text messages from his deactivated cellphone. Miller said he had gone over to Hinds’s house that night to check on a friend who had been injured, walking more than four miles from his home in north Rochester. Wengert didn’t believe him, pointing out that his boots were unlaced. Miller was arrested and charged with first-degree robbery.
Mosely’s iPhone had a “find my phone” feature, which Wengert activated on September 27, when Miller was already in custody. It indicated the phone was still a few blocks away from where Mosely was robbed. Police converged on the location, noticing between 15 and 30 people nearby. They activated the phone’s alarm function. The crowd scattered. No arrests were made. The phone was never recovered.
Miller’s trial began in November 2014 in Monroe County Supreme Court. He was represented by Joshua Stubbe of the Monroe County Public Defender’s Office.
Prior to the trial, Stubbe filed several motions related to the series of events that led to Miller’s arrest. One motion said the police failed to read him his Miranda rights in a timely fashion. A second sought to suppress Mosely’s identification, and the third said that the police detained and arrested Miller without probable cause.
Hogg and Wengert each appeared at the hearing on the motions. Hogg testified that he approached and detained Miller and Hinds after getting an initial radio call that indicated he was looking for two suspects, one wearing a red sweatshirt and the other a gray sweatshirt. But that was false. The initial dispatch only mentioned a single suspect with a gray hoodie. Wengert acknowledged that discrepancy in his testimony, and also said that he transmitted additional details to Hogg on an unmonitored and unrecorded police channel.
After the hearing, Judge Thomas Moran of Monroe County Supreme Court denied all the motions. He said the events had unfolded in a “fluid manner” and that the officers had probable cause to detain Miller and Hinds. He said Miller was properly read his Miranda warnings, and that his time in the back of a locked police cruiser was not equivalent to being in custody. He also said the police acted properly in conducting the show-up identification.
At trial, Mosely identified Miller as the man who had robbed him and said Hinds was the man on the bicycle. Mosely, who died in 2017, had a history of alcohol abuse, and he testified that he saw the robber for less than a minute, while the man held a gun to Mosely’s head.
Hogg first testified consistent with his testimony at the suppression hearing that the initial dispatch described “two suspects, both male blacks, one wearing a red hoodie, the other one with a gray hoodie, one approximately five foot eight, maybe five foot nine, medium build.” But under cross-examination, he acknowledged that the dispatcher’s initial description made no mention of two suspects or a red sweatshirt.
Wengert testified about the investigation. He acknowledged that the search of Hinds’s house turned up no incriminating evidence but said it was a “very cursory search.” He was unable to provide an explanation of why he and other officers didn’t do a more thorough search. Wengert also testified that a police dog tracked the scent of the gunman for several blocks but lost the scent a block south from where Miller would have needed to turn to take the most direct route to Hinds’s block.
Miller did not testify, and Stubbe presented no witnesses. He had missed the initial deadline to file a notice of alibi and call Hinds as a witness. Later, Stubbe filed a motion requesting leave to file a late notice. But he provided no explanation to support this request or the need for this alibi testimony. Hinds was unable to testify.
The jury convicted Miller of first-degree robbery on November 21, 2014. He was later sentenced to 10 years in prison. At his sentencing hearing, Judge Moran asked Miller if he had anything he wished to say. Miller said, “I'm just going to maintain my innocence. That's all I can do."
In June 2019, Miller wrote to the Monroe County District Attorney’s Conviction Integrity Unit, asking it to review his conviction. “An inept and one-sided investigation was conducted by RPD, which was compounded by the rush of judgment, which ultimately led to my wrongful conviction,” he wrote. “I feel sorry for Mr. Jack Mosley, but I had nothing to do with the robbery.”
In his correspondence with the CIU during the next several months, Miller said Wengert, who died in 2017, had refused to investigate his claims of innocence. He said the officer wouldn’t look at his cellphone to see where it was used on the night of the robbery and that he didn’t tell prosecutors about the “find my phone” search until weeks before the trial, making it difficult for Miller and his attorney to properly investigate who had Mosely’s phone after the robbery.
Miller also noted the discrepancies in Mosely’s testimony. Before the grand jury, Mosely said that Hinds was wearing different clothes when police brought him to the show-up viewing. But during the 911 call, the man said to be Hinds had remained behind for a minute before pedaling south.
“If this man on the bike felt he was criminally involved enough to change clothing, then why would he wait one minute to leave the crime scene,” Miller wrote. “This is very unlogical.”
As part of their investigation, attorneys with the CIU interviewed Hogg. He defended the arrest and investigation. According to a summary of the meeting, “Without needing to review his paperwork, Ofc. Hogg recalled the incident, including that he located defendant and found defendant's explanation for his presence in the area suspect.”
Miller had also filed a pro se motion to vacate his conviction, claiming ineffective assistance of counsel. In the motion, he noted that he had given Stubbe Hinds’s cellphone records, which he said could substantiate his alibi about where he was and what he was doing at the time of the robbery. Judge Moran denied the motion on August 9, 2019.
On November 22, 2019, the CIU wrote to Miller and said it was closing the review of Miller’s case and not taking further action. Eleven months later, the CIU reviewed the case a second time, but again took no action. An investigator with the district attorney’s office noted that Mosely and Wengert were both dead. He also said that he had reached out to Miller’s parents, but that they didn’t cooperate with him. “The parent’s silence speaks volumes to me,” the investigator wrote in a memo.
Separately, Miller had appealed his conviction on the grounds that it was against the weight of the evidence. Bridget Field represented him on appeal, arguing that Mosley’s identification was flawed and that the police lacked probable cause to arrest Miller. “At the time that Mr. Miller and Mr. Hinds were apprehended and initially detained, the only description that had been broadcast was for a nineteen-year-old medium build wearing a gray sweatshirt … The Defendant had already been in custody for six or seven minutes, before Investigator Wengert provided Officer Hogg the additional description.”
The motion repeated Miller’s claims of ineffective representation and also challenged the purported timeline of the events.
The 911 call came in at 8:02 p.m., and Hogg drove up on Miller and Hinds at 8:07. “To credit the People’s theory, in that five-minute time frame, Mr. Miller had to get from 19 Roslyn Street to 22 Bradburn Street on foot, change clothes, hide a gun, his jeans, keys and the stolen phone, and then be casually standing in front of the house with Mr. Hinds.”
On November 13, 2020, the Fourth Judicial Department of the Appellate Division of the Supreme Court of New York vacated Miller’s conviction and dismissed his indictment, stating that the verdict was against the weight of the evidence.
The court said show-up identifications were inherently suggestive, and that “there was considerable objective evidence supporting defendant’s innocence.” The court wrote: He was not in possession of the fruits of the crime or of a firearm. There was no testimony that he was out of breath or that he displayed other signs of having recently run a distance. To the contrary, his boots were not even laced.”
The appellate court had sharp words for Moran’s rulings that said the fluid nature of events justified the police stopping Miller, frisking him, and then bringing him to Mosely for identification. “The testimony of the officer who initiated this street encounter established that he explored only ‘one of’ several side streets in a residential neighborhood and seized the first young black man in a hooded sweatshirt who he found. It must be plainly stated—the law does not allow the police to stop and frisk any young black man within a half-mile radius of an armed robbery based solely upon a general description."
Miller was released from prison four days later, on November 17, 2020.
Monroe County District Attorney Sandra Doorley said in a statement: “As prosecutors, we do not go to trial or prosecute a case if we do not believe the evidence supports our position. It is our hope that Mr. Miller will be able to move forward from this experience and we wish him the best.”
On January 20, 2021, Miller filed a claim against the state of New York, seeking $7 million in compensation for his wrongful conviction.
Miller told the Rochester Democrat & Chronicle that race played a critical role in his ordeal. “They simply wanted an arrest and conviction,” Miller said. “I was a young Black man, and the victim was white.”
On February 9, 2022, Miller filed a civil-rights lawsuit in U.S. District Court for the Western District of New York against the City of Rochester, several of its police officers, and Wengert's estate.
– Ken Otterbourg
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