 Dave Anthony Gardine (Photo: Nathan Tempey)
The crime occurred on New York City’s Edgecombe Avenue,an urban canyon that slopes south from West 145th Street in upper Manhattan to West 142nd Street without any cross streets. In 1994, along this stretch of apartment buildings, marijuana and cocaine were peddled openly and constantly.
The north portion, closer to 145th Street, was controlled by Jamaican drug dealers. The southern portion, near 142nd Street, was the territory of American drug dealers. In 1987, the FBI had raided two buildings on the north end as part of a nationwide sweep targeting Jamaican drug gangs. In April 1996, federal agents had taken down another drug operation along Edgecombe Avenue.
Just after midnight on September 3, 1994, 22-year-old Robert “Dak” Mickens was fatally shot in front of 210 Edgecombe, which was about a block south of 145th Street. He was shot more than 10 times. When police arrived, two witnesses, 19-year-old N.S. and 14-year-old N.V., were interviewed briefly and then went to the police station in the 30th District. The district was drenched in corruption and ultimately was labeled the “Dirty 30” after numerous officers were found to have stolen drugs from drug dealers and trafficked the drugs themselves. More than 125 convictions from that time period were eventually vacated and the charges dismissed.
Both eventually said that the gunman had been someone they knew as “Tingaling," who was known to sell marijuana and had a Jamaican accent. Police determined that 20-year-old Dave Anthony Gardine, a Jamaican national who was using the name Wayne Gardine, had the same nickname. Detectives visited N.S. at the “Tombs,” the Manhattan jail complex where he was being held on a probation violation. The detectives showed N.S. a photograph of Gardine, and N.S. identified him as the gunman.
On October 5, 1994, Gardine was arrested. He denied involvement in the crime and told police he had been at a dance hall in the Bronx at the time of the shooting. He gave names and contact information for those he said could verify where he was. Detectives did not check Gardine’s alibi. Instead, he was charged under the name Wayne Gardine with second degree murder and criminal possession of a weapon.
In June 1996, Gardine went to trial in New York County Supreme Court. There was no forensic or physical evidence tying him to the crime.
The prosecution’s case rested almost solely on testimony from N.S. N.V. had been subpoenaed, but refused to come to court.
N.S. testified that during the three or four months prior to the shooting, he walked past Gardine every day and saw Gardine peddling marijuana from the stoop of a building near the corner of 145th Street and Edgecombe Avenue.
On the day of the shooting, N.S. said he walked by the building in the early afternoon, and Gardine was there, wearing a rugby shirt, blue jeans, and a cap. Shortly before midnight, N.S. said he was talking with friends in front of 180 Edgecombe Avenue, just north of 142nd Street. He was talking with N.V. when N.V. said, “Here comes Dak,” referring to Mickens, a mutual friend of both N.V. and N.S.
N.S. said he and N.V. were walking north on the east side of Edgecombe, and Mickens was walking south on the west side of the street. N.S. said Mickens called to them and started to walk across the street. N.S. said that when Mickens got to the east side of the street at 210 Edgecombe, Gardine emerged from behind parked cars and shoved Mickens.
N.S. said that when Mickens attempted to punch back, Gardine pulled out a gun and fired 11 times. By that time, N.S. said he and N.V. were in front of 204 Edgecombe. He estimated he was 20 feet from Mickens when the shooting occurred. After the shooting, Gardine fled north on Edgecombe.
N.S. also testified that he did not hear the verbal interaction between the gunman and Mickens. This contradicted N.S.’s testimony before the grand jury that the gunman sold marijuana and that the gunman argued with Mickens about drugs. N.S. claimed that what he told the grand jury was mostly second-hand information that he incorporated into his narrative.
Detective Carlton Berkley testified that he interviewed N.V. and that N.V. gave a statement. N.V. stopped cooperating thereafter. Berkley said he interviewed N.S. and wrote up a statement that N.S. signed.
During cross-examination, Berkley conceded that in the statement, N.S. said he was at 180 Edgecombe at the time of the shooting. There was no mention that N.S. was in front of 204 Edgecombe.
A total of 10 nine-millimeter shell casings and two expended bullets had been recovered from the scene. Detective Joseph Amato, a firearms analyst, testified that the shells had been fired from one weapon and the bullets were from one weapon, but he could not conclude that the shells and bullets had come from the same weapon.
A defense investigator testified that in between 180 and 204 Edgecombe, there were seven buildings, each about 17 feet wide. The investigator said that the distance from 180 Edgecombe to the location of the shooting was close to 200 feet—not 20 feet as N.S. claimed.
Gardine’s defense attorney twice asked the trial judge to allow the jury to go out into the hallway to get a better sense of the distance. The hallway measured 157 feet long. The defense requests were denied.
The defense also noted that N.S.’s statement described the gunman as 6 feet tall and weighing 150 to 160 pounds. Gardine was between 5’7” and 5’8” tall and weighed 135 pounds.
N.S. admitted that he had previously pled guilty to possessing crack cocaine.
During closing argument, Gardine’s lawyer contended that N.S. had not been 20 feet away from the shooting, but rather had been closer to 200 feet, a distance that made it almost impossible for him to discern the identity of the gunman. The lawyer said that N.S.’s description was evidence of that impossibility since it was far different than Gardine’s height and weight.
On June 26, 1996, the jury convicted Gardine of second-degree murder and criminal possession of a firearm. He was sentenced to 18½ years to life in prison.
Gardine’s convictions were upheld on appeal. In 2004, he filed a federal petition for a writ of habeas corpus, but in 2006, the petition was denied.
Eventually, the Legal Aid Society’s Wrongful Conviction Unit (WCU), with investigator Nathan Tempey, began reinvestigating the case and also requested that the Manhattan District Attorney’s Post-Conviction Justice Unit re-examine Gardine’s case.
On April 13, 2022, Gardine was released on parole, but was immediately transferred into the custody of federal immigration authorities, and deportation proceedings were initiated.
On November 14, 2023, Legal Aid WCU attorney Lou Fox filed a motion to vacate Gardine’s conviction.
“The only evidence against [Gardine] at trial was the word of a teenager who claimed to have witnessed the murder, was on felony probation for selling drugs at the time he first incriminated Mr. Gardine, and changed his story several times between the incident and trial in statements to police, in the grand jury, at trial and post- conviction,” the motion said.
The WCU had tracked down N.V. who provided an affidavit in October 2022 that he and N.S. were standing at 180 Edgecombe, more than 200 feet away from the shooting, and that they were too far away to hear the gunman’s voice or see his face. N.V. said that right after the shooting, he and N.S. made a pact to blame the shooting on the rival Jamaican drug dealers. N.V. said N.S. told him that if one of the Jamaicans was not blamed, their drug boss would demand that they retaliate to avenge Mickens’s death.
The prosecution’s investigators interviewed N.V. in February 2023, and he confirmed what he had told the WCU. In his affidavit, N.V. said, “When [N.S.] and I were standing over Dak’s body, I was very angry, and said to [N.S} that it was probably Tingaling. I said that because I assumed the shooter was Jamaican because the shooting happened on that end of the block…[N.S.] replied, ‘F--- it, it was Tingaling.’ I understood that to mean that we were settling on saying it was Tingaling even though I hadn’t seen the shooter’s face.”
The WCU motion also said that they had spoken to one of the people Gardine had mentioned he was with at the dance hall and that person confirmed that Gardine was there that night. The DJ at the hall also told the WCU that he remembered Gardine was there.
The WCU interviewed Detective Berkley, who recalled that N.S. was asking for favors from the outset of his interview after the shooting. Berkley said he was new to the 30th Precinct and ultimately came to view N.S. as unreliable. Berkley also said he suspected N.S. was telling N.V. what to say at the precinct. Berkley said he had come to attribute the failure of the detectives to check Gardine’s alibi to his own inexperience as a homicide detective and “the fact that more experienced officers discouraged him from continuing the investigation once Mr. Gardine was in custody.”
The motion also said that at the time of the trial, N.S. was listed as an unindicted co-conspirator in the 1996 federal indictment of drug dealers operating on Edgecombe Avenue. That information had not been disclosed to the defense prior to Gardine’s trial, the motion said.
Also on November 14, 2023, Jenna Dunton, a Manhattan District Attorney’s office prosecutor, filed a three-page response saying that the prosecution joined in the motion to vacate Gardine’s convictions. The response noted that N.S. “provided several different accounts of the distance from which he observed the crime. Some of those distances would have made viewing the perpetrator all but impossible.”
Dunton noted that N.V.’s new statement cast serious doubt on the integrity of Gardine’s conviction. Dunton’s response also noted that Detective Berkley no longer stood by his work in the case. She requested that the case be vacated and dismissed “in the interest of justice and because the People cannot now prove the case beyond a reasonable doubt. Mr. Gardine has served his entire sentence, and any re-trial would not only be nearly impossible to prove but also unjust.”
On November 27, 2023, New York County Supreme Court Justice Kathryn Paek vacated Gardine’s convictions, and the prosecution dismissed the case.
Gardine, who had come to the U.S. with his family at age 13, was still in the custody of immigration authorities. He issued a statement thanking District Alvin Bragg and the prosecution for “their honest investigation, their respect for the truth, and for how quickly they worked on my case.” Gardine thanked the “whole team at Legal Aid” and his mother for standing by him since the day he was arrested.
Bragg issued a statement saying, “Unjust convictions are the height of injustice and while we can never completely undo the pain he has experienced, I hope this is the first step in allowing Mr. Gardine to rebuild his life and reunite with his loved ones.”
Legal Aid called for the termination of deportation proceedings and the release of Gardine from U.S. Immigration and Customs Enforcement. On December 6, 2023, Gardine was released on bond pending a decision on the immigration case.
– Maurice Possley
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