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Julio Negron

Other Attempted Murder Exonerations with Mistaken Witness Identification
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Shortly before 4 a.m. on February 6, 2005, 31-year-old Mervin Fevrier was driving home from a party in Queens, New York along with a passenger, Elliot Miley. As Fevrier was driving up Woodward Avenue, a car was backing down the street. Fevrier honked his horn and exchanged words with the driver as they passed.

Fevrier later told police that the driver stopped, got out, and began yelling at him. Thinking he might have hit the other car, Fevrier got out and began walking toward the other driver. Fevrier said that both were yelling at each other, and as he got closer, the man got a pistol from his car and pointed it at him. When Fevrier asked what he was going to do, the man said, “This is what I am going to do,” and shot Fevrier in the leg. Fevrier and Miley—who was behind Fevrier at the time—turned and ran. Fevrier and Miley got back into their car and as they sped away, they heard two more gunshots.

Fevrier and Miley eventually flagged down a bus, and the driver radioed for the police. Fevrier was taken to a hospital, and Miley returned to the scene of the shooting with an officer. Fevrier and Miley initially said the car had four doors and was either a Buick or a Cadillac, and Miley said the gunman drove off after the shooting. Nevertheless, Miley pointed out a green two-door Chevrolet Monte Carlo, which was parked on Woodward Avenue. The officer touched the hood of the car and found it still warm.

Dmitriy Khavko, Zoryana Ivaniv, and Andriy Vintonyak had been sitting in a car parked on Woodward and fled when the shots were fired. They came back after police arrived, and said the driver had parked and walked into a building at 583 Woodward Avenue. Police towed the Monte Carlo and records showed it was registered to 38-year-old Julio Negron. Three .45-caliber shell casings were recovered on the street.

Around 9:30 a.m., about five-and-a-half hours after the shooting, detectives rang Negron’s doorbell and asked if he owned a green Monte Carlo parked around the corner. Negron pointed at the street, saying, “No, I parked it across the street.” He said he had been to a party the previous night and then at a club until about 2 a.m. When he noticed the car wasn’t across the street, he asked if it had been stolen. In response, the detectives asked him to come the police station.

Negron was eventually put into a lineup, but first, Fevrier was allowed to look at him in a holding cell. Fevrier, who had been treated and released, was unable to say for sure that Negron was the gunman. The detectives, as well as the prosecutor, Patrick O’Connor, then took Fevrier into private room and spoke with him for about 15 minutes. When Fevrier came out, he viewed the lineup again and said he was “100 percent sure” that Negron was the gunman.

Miley was unable to identify Negron and identified the filler in position #1 as the gunman. Negron was in position #5.

Two of the three people who were in the car on the street when the shots were fired came to the station. Ivaniv viewed Negron in a holding cell and immediately told detectives that Negron was not the gunman. Khavko picked the filler who was in position #2 in the lineup.

Based on Fevrier’s identification, Negron was charged with second-degree attempted murder, first-degree assault, first-degree reckless endangerment, and second-degree criminal possession of a weapon.

In July 2005, a hearing was held in Queens County Supreme Court on a motion to suppress Fevrier’s identification. Ultimately, the judge barred the evidence of the lineup identification based on the impropriety of Fevrier’s meeting with the detectives and the prosecutor after he initially was unable to make a positive identification. The judge also ruled that the fillers in the lineup looked nothing like Negron. However, a different judge subsequently ruled that Fevrier could nevertheless testify based on his opportunity to see the gunman at the time of the shooting.

Negron went to trial in March 2006. The defense objected when the prosecutor, O’Connor, brought Fevrier into the courtroom during a recess so that he could view Negron sitting at the defense table. However, the judge did nothing, saying that he believed it was unintentional.

Fevrier testified and identified Negron as the man who shot him. Khavko, Vintonyak, and Ivaniv testified that the gunman entered 583 Woodward Avenue, which was where Negron lived. Both Khavko and Ivaniv, who had identified fillers at the line-up, testified during cross-examination that they did not see the gunman in the courtroom, although Negron was sitting at the defense table.

Their descriptions varied. Miley said the gunman had a beard and mustache and was wearing dark pants, a sweatshirt, and a black wool cap. Khavko and Ivaniv said the gunman had a black bandana on his head. Khavko also said the gunman wore a plain green jacket.

Negron denied involvement in the crime. He testified that he was a custodial engineer for the New York City Department of Education and worked two jobs—at a public school in Brooklyn during the day and at a high school in Long Island in the evening. He said he was clean-shaven at the time. Two friends of Negron testified they were out with him that night, and that he was wearing a jacket with a Ground Zero recovery patch, blue jeans, and a Yankees baseball cap.

The prosecution, in rebuttal, presented a photograph of Negron’s driver’s license showing him with facial hair. The photograph on the license, however, was taken eight years earlier.

The defense also sought to introduce evidence that a man named Fernando Caban was the real gunman. Caban resembled Negron, lived in the same building, and one day after the shooting had been arrested for possession of a cache of weapons. Prosecutor O’Connor objected to the evidence as insufficient and the judge barred it, ruling it did not meet a standard requiring a “clear link” between the evidence and the crime on trial.

On March 27, 2006, the jury convicted Negron of all counts. He was sentenced to 12 years in prison.

In 2007, the Appellate Division, Second Department, upheld the convictions. Negron, acting without a lawyer, then filed a federal petition for a writ of habeas corpus. Attorney Joel Rudin was appointed to represent Negron and following a re-investigation, filed a motion in Queens County Supreme Court seeking to vacate Negron’s convictions.

The motion claimed that Negron’s trial attorney had provided an inadequate legal defense by failing to call witnesses to support Negron’s testimony that he was clean-shaven at the time of the crime. The motion also said the judge had used the wrong legal standard in denying the defense the opportunity to present evidence that Fernando Caban was the real gunman.

Moreover, the motion said that the prosecution had failed to disclose that Caban was arrested after he fled the building and threw away .45-caliber ammunition—the same type used in the shooting of Fevrier.

The motion was denied in 2012, and the Appellate Division upheld that ruling in 2013. In November 2015, however, the New York Court of Appeals reversed Negron’s conviction and ordered a new trial based on new information about Caban that Negron had subsequently received pursuant to a public records request.

The information showed that Caban had attempted to flee the building and discard the weapons and ammunition when the police arrived at the building to question Negron—apparently because he thought the police were after him. In addition, Caban had been in possession of .45-caliber ammunition—the same caliber involved in the shooting of Fevrier. Moreover, the prosecutor in Caban’s case was O’Connor—the same prosecutor in Negron’s case.

The appeals court ruled that the trial judge had applied an incorrect legal standard in barring the defense from presenting the limited information on Caban at trial. It further ruled that the additional information about caliber of the ammunition should have been disclosed to the defense.

Negron was released on bond in January 2016. After the prosecution said it intended to retry the case, Rudin filed motion to dismiss the indictment.

On September 6, 2017, Queens County Supreme Court Judge Gregory Lasak dismissed the charges, ruling that the prosecution had failed to present evidence relating to the failure of other witnesses to identify Negron when it presented the case to the grand jury for indictment.

“Had the grand jury understood that two witnesses selected a person other than the defendant in the lineup, one witness had stated that…the shooter was not the defendant and the circumstances under which Mr. Fevrier’s identification changed from an equivocal to a certain one, not only would the grand jury presentation been forthright, but it is very likely that the outcome of the grand jury proceedings would have been different and that the grand jury would have determined that this was a needless or unfounded prosecution,” Judge Lasak ruled.

“Indeed, given the sheer volume of the exculpatory evidence and its bearing on the only critical issue in the case, the omission or incomplete nature of this evidence obviously had the potential to prejudice the ultimate decision reached by the grand jury that the defendant was, in fact, the shooter,” the judge said.

– Maurice Possley

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Posting Date: 12/18/2017
State:New York
County:Queens
Most Serious Crime:Attempted Murder
Additional Convictions:Assault, Other Violent Felony, Illegal Use of a Weapon
Reported Crime Date:2005
Convicted:2006
Exonerated:2017
Sentence:12 years
Race:Hispanic
Sex:Male
Age at the date of crime:38
Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No