In the early morning of October 31, 1982, two teenagers, C.M. and V.D., ages 17 and 18 years old, said they were robbed and sexually assaulted in Pelham Manor, New York, as they walked home from a party. V.D. was the niece of Pelham Police Officer James Sliney, and C.M. was the daughter of Pelham Police Officer Thomas McDonough. Pelham and Pelham Manor are neighboring villages in Westchester County.
The victims viewed a photographic lineup on November 4, 1982, and V.D. selected a photo of 18-year-old Devon Smith as the man who had attacked them. C.M. was not able to make an identification. Lieutenant Michael Boccardi conducted the lineup, in the presence of Sergeant Carmine DeNisco. Both were officers with the Pelham Manor Police Department.
Smith worked part-time as a carpenter while attending an alternative high school in the Bronx, which is just south of Pelham Manor. In 1981, Smith had pled guilty to a disorderly conduct charge after accepting a ride from a friend in a stolen car that was stopped by the police. This incident resulted in his photograph’s inclusion in the New York City police files and the Computerized Assisted Terminal Criminal Hunt (“CATCH”) identification system used in New York state. Individuals’ physical descriptions were entered into the CATCH system based on their arrest photographs, and CATCH then made these photographs available to show to witnesses.
In June 1982, Smith was arrested for a different crime. Two white teenage girls, ages 15 and 16, had reported being robbed and sodomized by a young, Black male in Pelham Manor in June 1982. Sergeant DeNisco led the investigation. Based on the descriptions provided by the victims, DeNisco created a “montage” of the perpetrator’s appearance and circulated it to police in Westchester County and the Bronx. Detective Lawrence Doherty of the Bronx Detective Area Task Force used the CATCH system to “spit out” approximately 17 photographs of individuals who bore a resemblance to the montage.
The two June victims viewed these photographs and, according to Doherty, one of the two victims identified Smith. The other victim did not make an identification. Based on the photo identification, police arrested Smith on July 9, 1982 and had him participate in an in-person lineup at the request of Assistant District Attorney Mary Ann Harkins. At this lineup, one of the victims did not identify anyone, and the other victim picked out someone other than Smith. DeNisco told Harkins that he believed the victims had intentionally failed to identify Smith to avoid testifying, though the victims denied that was the case. Smith was released, but not until after he had participated in a secret show-up arranged by DeNisco.
Unbeknownst to Smith and prior to his arrest, DeNisco had mentioned his investigation of the June crimes to his friend, Neil Formisano. On July 9, Formisano visited DeNisco at the police station. When DeNisco told Formisano that an arrest had just been made in the June assaults, Formisano admitted that he had more than a passing interest in the investigation. Formisano said that a Black man had recently raped, or tried to rape, his cousin’s wife in Westchester County. The woman had not reported this alleged crime. Formisano asked DeNisco if the woman could view Smith to see whether he was the man who had attacked her. While Smith was in custody that day, DeNisco arranged a private viewing of Smith through a one-way mirror where only he, Formisano, and the woman were present. She reportedly became very upset when viewing Smith but then said she could not identify him because all she remembered was that the man was Black and wearing purple sneakers.
Although the woman had not identified Smith, DeNisco and Formisano were convinced Smith was the culprit. DeNisco also believed Smith had committed the June assaults. Upon hearing of the October 1982 attacks against V.D. and C.M., DeNisco contacted Boccardi, and told him that the crimes against V.D. and C.M. closely resembled the June crimes he was investigating. DeNisco provided Boccardi with information on and a photograph of Smith, whom DeNisco still considered a suspect. This photograph and six others comprised the photo lineup that was presented to V.D. and C.M. on November 4.
On November 30, 1982, based on V.D.’s identification, Smith was indicted on charges of Sodomy in the First Degree, Robbery in the First Degree, Grand Larceny in the Third Degree, Sexual Abuse in the First Degree, Coercion in the First Degree, and Criminal Possession of a Weapon in the Fourth Degree. Smith claimed he was innocent and had been walking a girl home from a party in the Bronx at the time of the crimes.
By June 1983, the Westchester County District Attorney’s Rackets Bureau had wiretapped Neil Formisano’s phone with regard to an unrelated investigation of electric meter tampering and bribery. Officers inadvertently learned that Formisano and four other men – DeNisco, Bobby Halpern, Israel Torres, and Steven Crea – were engaged in a plot to kill Smith based on Formisano’s belief that Smith was the man who had assaulted his cousin’s wife. All five men were indicted on June 22, 1983 for this plot to kill Smith. Formisano and Steven Crea were convicted for their role in the plot, but their convictions were later reversed. The charges against Halpern and Torres were dismissed. DeNisco pled guilty to a misdemeanor charge of official misconduct and agreed he would not work in law enforcement again.
Smith’s trial for the October crimes began in November 1983 in Westchester County Court before Judge Nicholas Colabella. While limited details of the trial are available, it is known that V.D. identified Smith in court. C.M. also testified and was not able to make an identification. No physical evidence was presented to link Smith to the crime. Smith took the stand, testifying that he had never been to Pelham Manor in his life. Smith’s alibi witness, the girl with whom he claimed he was walking home in the Bronx at the time of the crimes, testified to corroborate his claim. All the jurors, Judge Colabella, the prosecutor, and the victims were white. Smith would later argue that racial overtones permeated the trial.
The jury found Smith guilty on two counts of robbery and two counts of sodomy on November 30, 1983. On January 5, 1984, Judge Colabella sentenced him to two indeterminate terms of eight and one third to 25 years, concurrently, for each of the robbery convictions, and indeterminate terms of eight and one third to 25 years for each of the sodomy convictions. The sodomy sentences were concurrent with each other but consecutive to the robbery sentences.
In February 1984, Smith filed an appeal based on newly discovered evidence and Brady violations. The Appellate Division of the Second Department of the Supreme Court of New York reversed his conviction on February 23, 1987. The reversal was based on the improper testimony from a police witness called to bolster the credibility of V.D. and C.M., and the uncertainty of the eyewitness identification. The court also found reversible error when the prosecution suppressed details of DeNisco’s misconduct in the investigation of Smith, wherein DeNisco influenced the investigation to direct it toward Smith.
In April 1987, Westchester County Assistant District Attorney Barbara Egenhauser arranged to meet with V.D. and C.M. to discuss a potential retrial. In preparing for this meeting, Egenhauser, who had not been involved in the prosecution of Smith, noted many similarities between the crimes against V.D. and C.M. and those perpetrated by Dannie William McQueen, a young Black man whom Egenhauser had prosecuted for a string of sexual assaults in Westchester County, many of which occurred in 1983 and 1984, after Smith’s conviction. McQueen was convicted in June 1985 for 15 of these assaults.
When Egenhauser met with V.D. and C.M., she discussed McQueen’s sexual assaults. During the meeting, V.D. told Egenhauser she wanted to tell her something she had never told anyone. V.D. said that just prior to her viewing the photo lineup on November 4, 1982, “someone” had told her to pay particular attention to photo #6, which was the photo of Smith. V.D. told Egenhauser that this comment caused her eyes to go straight to photo #6, and she was concerned that the comment may have been why she identified Smith as the attacker. When Egenhauser inquired who this “someone” was, V.D. began crying and became so upset that the meeting ended. V.D. then called Egenhauser on April 27, 1987 and told her that Officer Thomas McDonough, the father of victim C.M., was the person who had directed her to pay attention to photo #6.
After this admission by V.D., Egenhauser showed V.D. a photo lineup that included six or seven other Black men and Dannie McQueen. According to Egenhauser’s recollection, V.D. eliminated every photo except for those of McQueen and one other person. Egenhauser believed the charges against Smith should be dismissed and spoke to the original prosecuting attorney, George Bolen about the matter. Bolen agreed that there was “a substantial likelihood that Devon Smith was not involved in the robbery and sexual assault of the two young women in this case.” Westchester County Judge James R. Cowhey granted the motion to dismiss the charges on May 6, 1987.
In September 1988, Smith filed a complaint in the New York Court of Claims against the State of New York for his wrongful prosecution and incarceration. The Court awarded Smith damages in the amount of $779,625 on October 31, 1990. The state appealed the award, and the parties settled at payment of $500,000 in compensation to Smith in October 1991.
- Meghan Barrett Cousino |