The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Antonio Salcedo, currently an inmate at Attica Correctional
Facility, brings this petition for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254. Following a jury trial in the
New York State Supreme Court, New York County, Salcedo was
convicted of one count of Murder in the Second Degree (N.Y. Penal
Law ("N.Y.P.L.") § 125.25(2)), one count of Criminal Possession
of a Weapon in the Second Degree (N.Y.P.L. § 265.03), and one
count of Criminal Possession of a Weapon in the Fourth Degree
(N.Y.P.L. § 265.01(1)). He was sentenced to concurrent prison
terms of 23 years to life on the murder count, 5 to 15 years on
the second-degree weapons possession count, and one year on the
fourth-degree weapons possession count. For the reasons stated
below, Salcedo's petition should be denied.
A. Evidence Presented at Trial
1. The Shooting of Jose and Gregory Nuez
In 1982, Salcedo lived in an apartment on the fifth floor of
145 Audubon Avenue in Manhattan. (See Zuniga: Tr. 579-80).*fn1 Salcedo shared
the apartment with his wife, Aida Trinidad, and Trinidad's
sister, Maria Cortez. (Zuniga: Tr. 579-80). At that time, Salcedo
was carrying on a sexual relationship with Marilyn Lopez, who
lived in apartment 2F of his building. (Lopez: Tr. 346, 351-52).
Salcedo was the owner of a social club called Tonito's that was
located in apartment 2C of that same building. (Lopez: Tr.
348-49). Liquor was served at the club and several women worked
there as prostitutes, including Lopez and Roxy Holguin Almonte.
(Lopez: Tr. 350, 354-55; Almonte: Tr. 645). Antonio Zuniga and
Anibal Hiraldo worked at the club doing a variety of tasks,
including serving drinks to customers and acting as bouncers.
(See Lopez: Tr. 356-57; Zuniga: Tr. 572-73; Hiraldo: Tr. 817,
819). Apartment 2C had a long hallway with rooms adjacent to it.
(Lopez: Tr. 347). At the end of the hallway was a large living
room that was set up with sofas and a bar. (Lopez: Tr. 347-48).
On November 6, 1982, Gregorio Nuez ("Gregory") and his brother,
Jose Nuez ("Jose"), went to their cousin's house in Brooklyn.
(Nuez: Tr. 145, 148-49). While there, they were drinking, eating,
and doing "family things." (Nuez: Tr. 149). At approximately 8:00
p.m., Jose, Gregory, and their cousin, Jesus, left Brooklyn and
returned home to 172nd Street and Amsterdam Avenue. (Nuez: Tr.
149). At approximately midnight, Jose, Gregory, and Jesus arrived
at 145 Audubon Avenue and entered the club on the second floor.
(Nuez: Tr. 151). Salcedo, Lopez, Hiraldo, Almonte, and Zuniga,
among others, were at the club when they arrived. (See Lopez: Tr. 359-61; Almonte: Tr. 647-48). Hiraldo
recognized Jose and Gregory since they had visited the club
before. (See Hiraldo: Tr. 822-25). In Hiraldo's view, on the
past occasions they had visited the club, they had "looked" to
start "problems with everyone." (Hiraldo: Tr. 823-24). Hiraldo
also knew Jose and Gregory because they used to sell beer out of
their apartment. (See Hiraldo: Tr. 824). Gregory and Jose's
business attracted "[t]he same people" that visited Salcedo's
club. (Hiraldo: Tr. 825).
The witnesses's accounts differed as to what happened next.
Almonte testified that when Jose, Gregory, and Jesus entered the
club they were "rowdy," "drunk," and "disorderly." (See
Almonte: Tr. 647). The men were acting "obnoxious" and were
harassing people, particularly the women who worked at the club.
(Almonte: Tr. 649). Once the men began acting "disorderly,"
Salcedo appeared in the living room. (Almonte: Tr. 648). The male
employees of the club approached the men in order to remove them
from the club. (Almonte: Tr. 649). Because she recognized that
there were "going to be problems," Almonte left that room.
(Almonte: Tr. 649-50). From behind a closed door in another room,
Almonte heard "pushing and shoving" and the employees trying to
get one of the men out of the club. (Almonte: Tr. 650-51).
Almonte then heard Salcedo say something like "`[p]ut the gun
away.'" (Almonte: Tr. 651, 652). Almonte heard the front door
close and people leaving the apartment. (Almonte: Tr. 653). At
some point, Almonte heard four or five shots. (Almonte: Tr. 654).
Following the shooting, Almonte did not see Salcedo or hear his
voice. (Almonte: Tr. 654-55). Almonte left through the lobby of
the building and saw a dead man who had been shot. (Almonte: Tr.
Lopez testified that she was sitting in the living room of the
apartment when she heard a woman named Ramona "screaming" at Jose
from one of the bedrooms. (See Lopez: Tr. 362, 366-67). Ramona was "swearing" at Jose and he was "talking back
to her, arguing with her." (Lopez: Tr. 367-68). Gregory, whom
Lopez described as "very drunk," was also seated in the living
room. (See Lopez: Tr. 365-66). Ramona approached Salcedo and
told him that Jose had spit in her face. (Lopez: Tr. 368). After
Salcedo and Jose "started arguing," Gregory and Hiraldo got
involved as well. (See Lopez: Tr. 369). Hiraldo was attempting
to stop the argument. (Lopez: Tr. 369-70). Salcedo pushed Jose
out the door and told him he had to go. (See Lopez: Tr.
370-71). Hiraldo did the same to Gregory. (See Lopez: Tr. 371).
The four men went outside the apartment and walked downstairs to
the hallway on the first floor of the building. (Lopez: Tr.
371-73). Salcedo was walking behind Jose while holding a gun in
his right hand. (See Lopez: Tr. 374-76). Neither Gregory nor
Jose had anything in their hands. (See Lopez: Tr. 377). Lopez
followed them as they walked downstairs. (Lopez: Tr. 378).
Salcedo pointed the gun at Jose and shot him from approximately
two steps away. (See Lopez: Tr. 386). Lopez saw Jose "bouncing"
and then fall. (See Lopez: Tr. 386). Within seconds Salcedo
started shooting at Gregory, who then ran out of the building.
(See Lopez: Tr. 386-88). As Salcedo shot at Jose and Gregory,
Hiraldo stood there doing nothing. (See Lopez: Tr. 387). Lopez
heard a total of five shots. (Lopez: Tr. 389). Following the
shooting, Lopez ran upstairs to apartment 2C. (Lopez: Tr.
391-92). Salcedo returned to the apartment within approximately
five to ten minutes and told everybody that the club was closed
and that they "had to go." (Lopez: Tr. 392-93). Everybody left
the apartment with the exception of Salcedo, Hiraldo, Lopez and
Zuniga. (See Lopez: Tr. 395). Salcedo told Lopez that she did
not see anything, that "nothing happened downstairs," and he told
everybody what they "had to say when . . . the police come."
(Lopez: Tr. 393, 395-96). Specifically, Salcedo told Lopez that
she should tell police that the men started to "take the gun to" Hiraldo, he told them to "put the gun down,"
and that "he had to shoot." (Lopez: Tr. 396). After having that
conversation with Salcedo, Lopez left and returned to her
apartment. (Lopez: Tr. 397). Approximately 10 to 15 minutes
later, Salcedo knocked on Lopez's door. (Lopez: Tr. 397). Lopez
opened the door and Salcedo asked her to keep his liquor there.
(Lopez: Tr. 398). Although Lopez told Salcedo that she did not
want to keep the liquor, he left it in her apartment anyway.
(Lopez: Tr. 398-99).
Zuniga testified that, while he was at work on the night of
November 6, 1982, he heard an argument at the front door.
(Zuniga: Tr. 582-84). Zuniga saw Salcedo and Hiraldo go to the
front door. (Zuniga: Tr. 584). Salcedo and Hiraldo then left the
apartment. (Zuniga: Tr. 585-86). One minute after Salcedo and
Hiraldo left the apartment, Zuniga heard two shots, one right
after the other. (Zuniga: Tr. 586). Zuniga did not go downstairs
after he heard the shots. (Zuniga: Tr. 586). Approximately 20
minutes later, Salcedo returned to the apartment by himself.
(Zuniga: Tr. 587). Upon returning to the apartment, Salcedo told
Zuniga and Lopez that, "`Nothing is happening. Nothing is going
on.'" (Zuniga: Tr. 587-88). The club then closed for the night.
(Zuniga: Tr. 588).
Hiraldo testified that, while Gregory and Jose were at the
club, Salcedo got Gregory "a girl" and Gregory disappeared into a
bedroom. (See Hiraldo: Tr. 826-28). Jose was making comments to
Hiraldo concerning the price of the club's beer. (See Hiraldo:
Tr. 827). Jose eventually left the club. (See Hiraldo: Tr.
829). Gregory subsequently exited the bedroom and he left as
well. (See Hiraldo: Tr. 829-30). Approximately 20 minutes
later, both men returned to the club. (Hiraldo: Tr. 830). Upon
entering, Gregory asked Jose to pass him a pistol and announced
that there was "`going to be problems'" because "`the woman
didn't bring it out'" for him. (See Hiraldo: Tr. 831). Instead of passing Gregory the
pistol, Jose "put?" the gun to Hiraldo's head and Hiraldo
"screamed to" Salcedo. (See Hiraldo: Tr. 831-32). Salcedo found
a pistol and told Jose that, if he were to shoot Hiraldo, Salcedo
would shoot Gregory. (See Hiraldo: Tr. 832). Salcedo then
pushed towards the door and took the pistol away from Jose.
(See Hiraldo: Tr. 832). A patron who was there then punched
both Gregory and Jose. (Hiraldo: Tr. 832). Jose's gun was in
Hiraldo's hand at that time. (See Hiraldo: Tr. 832). Salcedo
then took Jose and Gregory downstairs, but Hiraldo did not go
with them. (Hiraldo: Tr. 833). Hiraldo "stayed upstairs because
there were some clients there, some customers." (Hiraldo: Tr.
833). Approximately thirty seconds after the men left the
apartment, Hiraldo heard two shots, one right after the other.
(Hiraldo: Tr. 834-35). After hearing the shots, Hiraldo went
downstairs to the lobby. (Hiraldo: Tr. 835). Jose was standing in
the lobby with his hands up in the air and Salcedo, who was
standing approximately five feet away, was pointing a gun at him.
(See Hiraldo: Tr. 835-37). Salcedo told Jose that "[t]hey were
tired of [him] causing all those problems." (See Hiraldo: Tr.
837). Nobody else was in the lobby at that moment. (Hiraldo: Tr.
837). Salcedo then shot Jose in the head. (See Hiraldo: Tr.
837-38). Hiraldo left the building and went to his mother's house
in the Bronx. (Hiraldo: Tr. 838). Before leaving the lobby,
Hiraldo did not see where Salcedo went. (Hiraldo: Tr. 839).
Gregory testified that, upon arriving at 145 Audubon Avenue on
November 6, 1982, he, Jose, and Jesus went up to the second floor
and drank some beers. (Nuez: Tr. 150-51). Jose then went
downstairs. (Nuez: Tr. 151). Gregory and Jesus grew tired of
waiting for Jose and left the club. (Nuez: Tr. 151, 159-60). On
the way out, Jose was coming upstairs and Jose and Gregory
returned to the club while Jesus left. (Nuez: Tr. 152, 160-61).
Upon arriving at the apartment, a man named "Tonito" answered the door, at which point Jose and
Tonito began pointing guns at one another. (Nuez: Tr. 152, 162,
164).*fn2 Gregory testified that Tonito had a .38 "[s]hort
barreled" gun in his hand. (Nuez: Tr. 164). At that point, Tonito
said, "`You left with problems and you've come back looking for
problems.'" (Nuez: Tr. 152, 163-64). Gregory was able to get the
men to lower their weapons. (Nuez: Tr. 152, 164). Tonito then
ordered Gregory and Jose to "`[g]o downstairs and don't look
back.'" (Nuez: Tr. 152. 164). They walked downstairs with Gregory
"in front" and Jose "in back." (Nuez: Tr. 152, 165). Jose turned
his head and was shot. (Nuez: Tr. 152). Gregory looked as well
and he was shot in the back. (Nuez: Tr. 153). Gregory heard only
one shot. (Nuez: Tr. 168). He did not, however, see who fired the
shot. (Nuez: Tr. 175). Gregory saw Jose on the ground. (Nuez: Tr.
168-69). He saw that Jose had been shot "in his face." (Nuez: Tr.
169). While he was looking at Jose, Gregory "felt hurt," so he
went to a nearby building where he told the neighbors that his
brother was dead. (Nuez: Tr. 169-70). Those people took Gregory
to Columbia Presbyterian Medical Center, where he was treated for
a wound to his upper abdomen and a liver injury. (Nuez: Tr. 170;
see Flomenbaum: Tr. 279; Hildebrandt: Tr. 50-51). He was
hospitalized for 19 days. (Nuez: Tr. 170). While in the hospital
he learned that Jose was dead. (Nuez: Tr. 171).
At approximately 3:00 a.m. on November 7, 1982, Officer David
Babick of the New York City Police Department ("NYPD") arrived at
145 Audubon Avenue. (Stipulated Facts ("SF"): Tr. 225). Officer
Babick observed Jose lying face down in the lobby with a single gunshot wound to the left temple. (SF: Tr. 225). Officer Babick
observed two spent bullets at the crime scene. (SF: Tr. 225). One
spent bullet was recovered from inside the lobby approximately
five feet from Jose's body. (SF: Tr. 225-26). The other spent
bullet was recovered outside the building approximately six
inches from the bottom step outside the front door of 145 Audubon
Avenue. (SF: Tr. 226). Officer Babick vouchered the two spent
bullets. (SF: Tr. 226).
"Night Watch" detectives responded to the shooting at 145
Audubon Avenue at approximately 3:00 a.m. on November 7, 1982,
and canvassed the building seeking information concerning the
shooting. (Hildebrandt: Tr. 49-51). At this same time, the police
were "knocking on everybody's door" and they came to Lopez's
apartment "asking questions." (Lopez: Tr. 400). Lopez told the
police that she was at the club until approximately 3:00 a.m. and
that she saw and heard nothing. (Lopez: Tr. 449-50). Later that
same morning, Lopez spoke with detectives at the police station
for approximately two hours. (Lopez: Tr. 400-01, 418). She told
the police that, after Jose pulled a gun, Hiraldo also pulled out
a gun. (See Lopez: Tr. 452). Lopez also told the police that
Salcedo, Hiraldo, and Zuniga escorted Jose and Gregory out of the
apartment (see Lopez: Tr. 452), and that she heard five shots
after the men left the apartment. (Lopez: Tr. 459). Shortly after
that, Salcedo and Hiraldo returned to the apartment. (Lopez: Tr.
At approximately 8:00 a.m. on November 7, 1982, Detective Harry
Hildebrandt of the 34th Precinct was assigned to investigate the
homicide at 145 Audubon Avenue. (Hildebrandt: Tr. 49-50).
Detective Hildebrandt arrived at 145 Audubon Avenue at
approximately 11:00 a.m. and went to apartment 2C. (Hildebrandt:
Tr. 59-60). Detective Hildebrandt knocked at the door and Salcedo answered. (Hildebrandt: Tr. 60). Salcedo introduced
himself as "Tony Pena" and he and Detective Hildebrandt spoke for
approximately five minutes inside the apartment. (See
Hildebrandt: Tr. 61, 64). Zuniga was also present in the
apartment. (Hildebrandt: Tr. 62). Zuniga and Salcedo voluntarily
accompanied Detective Hildebrandt to the station house.
(Hildebrandt: Tr. 63, 93-94). After interviewing both men,
Detective Hildebrandt informed them that they were "free to
leave" and they left. (Hildebrandt: Tr. 63-65). After speaking
with other witnesses concerning the shooting (see Hildebrandt:
Tr. 65-67), Detective Hildebrandt returned to 145 Audubon Avenue
at approximately 8:00 p.m. looking for Salcedo and Zuniga.
(Hildebrandt: Tr. 68). Detective Hildebrandt was unable to find
either Salcedo or Zuniga at that time. (Hildebrandt: Tr. 68).
Jose's autopsy was performed on November 7, 1982. (Flomenbaum:
Tr. 234). Dr. Mark Flomenbaum, a board-certified pathologist who
worked in the office of the Chief Medical Examiner for the City
of New York, testified concerning the results of the autopsy,
which had been performed by another doctor. (Flomenbaum: Tr. 227,
231-32, 234-36). The autopsy revealed that the cause of Jose's
death was a gunshot wound to the left side of his face.
(Flomenbaum: Tr. 262). The bullet entered "approximately an inch
or so behind the corner of the left eye." (Flomenbaum: Tr. 262).
There was a circle of gunpowder 2½ inches in diameter
"surrounding the entrance wound." (Flomenbaum: Tr. 266). The size
of the circle indicated that the tip of the gun was in the range
of "less than 12 inches" closer to eight or ten inches away
from Jose at the time it discharged. (See Flomenbaum: Tr.
Bullet fragments were also recovered during the autopsy. (See
Flomenbaum: Tr. 268-69). The bullet fragments were then forwarded
to the NYPD's ballistics department. (Flomenbaum: Tr. 269-70). Dr. Flomenbaum concluded that the bullet fragments
recovered from the scene of the crime and the bullet fragments
provided by the medical examiner's office were "fired from the
same gun." (See Koch: Tr. 307-08). Dr. Flomenbaum also
determined that the bullets recovered at the crime scene were
.38-caliber bullets. (Flomenbaum: Tr. 308).
The day after the shooting, Zuniga returned to Trinidad's
fifth-floor apartment at 145 Audubon Avenue. (Zuniga: Tr. 592,
605-06). After leaving the apartment, Zuniga went to meet Salcedo
at a grocery store in Brooklyn. (Zuniga: Tr. 593). At the grocery
store Salcedo told Zuniga that he was going to Puerto Rico "to
stay for . . . a few days." (Zuniga: Tr. 594). Salcedo had bought
a plane ticket for Zuniga to go to Puerto Rico. (Zuniga: Tr.
594-95). They left for Puerto Rico the next day. (See Zuniga:
In the days that followed, Detective Hildebrandt met with a
number of witnesses who were present at the time of the shooting.
On November 10, 1982, Detective Hildebrandt interviewed Gregory
at Columbia Presbyterian Medical Center. (Hildebrandt: Tr.
71-72). During this interview, Detective Hildebrandt showed
Gregory pictures of Salcedo, Hiraldo, and Zuniga to see if he
could identify anyone. (Hildebrandt: Tr. 693-94). Gregory stated
that, prior to the shooting, Salcedo, Hiraldo, and Zuniga pulled
out guns or had guns. (Hildebrandt: Tr. 695). Gregory also told
Detective Hildebrandt that all three men escorted him and Jose
out of the apartment at gunpoint. (Hildebrandt: Tr. 695). On
November 11, 1982, Detective Hildebrandt interviewed Hiraldo at
the 34th Precinct. (Hildebrandt: Tr. 73-74). At that time,
Hiraldo was read his rights and a videotaped statement and
written statement were taken from him. (Hildebrandt: Tr. 74,
104). Detective John Bourges reviewed the case file in 1987 when he
was first assigned to the 34th precinct. (Bourges: Tr. 706-08).
In May 1998, Detective Bourges received word from the authorities
in Puerto Rico that "Tony Pena" was in the town of Ciales, Puerto
Rico. (Bourges: Tr. 715-17). After receiving this communication,
Detective Bourges interviewed several individuals connected to
the case, including Almonte, Gregory Nuez, and Lopez. (See
Bourges: Tr. 717-18). Detective Bourges traveled to Puerto Rico
in September 1998 and went to Ciales with another detective.
(Bourges: Tr. 719-20). Ultimately, they located Trinidad's
mother, who identified Salcedo and Trinidad from photographs.
(Bourges: Tr. 721, 796-97). As a result of the conversation with
Trinidad's mother, the detectives learned that "Tony Pena" also
went by the name "Antonio Salcedo." (Bourges: Tr. 721).
Detective Bourges returned to New York and went to an apartment
building located at 600 West 183rd Street with Detective Daniel
Rodriguez. (Bourges: Tr. 721-22; Rodriguez: Tr. 677-78). Salcedo
was there and agreed to accompany the detectives to the 33rd
precinct. (Bourges: Tr. 722-23, 770; Rodriguez: Tr. 679-80).
The detectives brought Salcedo to a room and read him his
Miranda rights. (Bourges: Tr. 725-30; Rodriguez: Tr. 683-85).
Detective Bourges asked Salcedo if he was known by any other
name, including the name Tony Pena, and he said he was not.
(Bourges: Tr. 730, 738). Salcedo also initially denied having
lived at 145 Audubon Avenue. (Bourges: Tr. 730). Eventually,
however, he admitted to having lived there after Detective
Bourges explained to him that he had a photograph of Trinidad and
Salcedo was reminded that both he and she had previously been
interviewed at the building by the police. (Bourges: Tr. 730-3,
789). Salcedo also denied owning a club. (Bourges: Tr. 731, 738).
Salcedo explained that, on the night of the shooting, "he was asleep at his girlfriend's apartment" on the
sixth floor, and that he "didn't hear anything." (Bourges: Tr.
731). He informed the detectives that this "was all he knew"
about the shooting. (See Bourges: Tr. 731). This conversation
was reduced to writing and signed by Salcedo, Detective Bourges,
and Detective Rodriguez. (Bourges: Tr. 731-32). The written
statement also indicated that Trinidad died in September 1997.
(Bourges: Tr. 736). Detective Bourges then showed Salcedo a
videotaped conversation from November 1982 involving Detective
Hildebrandt, the District Attorney, and Hiraldo. (Bourges: Tr.
738-40). Detective Hildebrandt also explained to him that
"several witnesses . . . had identified him in the building" and
indicated that "he did own the social club." (Bourges: Tr. 738).
Salcedo thereafter conceded that "he did have a social club in
apartment 2C." (Salcedo: Tr. 740). Salcedo explained that he sold
liquor and beer at the club, rented rooms with beds, and that
Lopez, whom he described as his "girlfriend," worked there.
(Bourges: Tr. 744). Salcedo denied knowing or ever having seen
Hiraldo (Bourges: Tr. 740, 744, 790-91), but identified
photographs of himself, Trinidad, Zuniga and Lopez, among others.
(Bourges: Tr. 744). Salcedo recalled that the police came to the
building the night of the shooting and that he told them that he
"had no problem in the club." (Bourges: Tr. 744). This
conversation was also reduced to writing and signed by Salcedo,
Detective Rodriguez, and Detective Bourges. (Bourges: Tr. 741,
At that point, Salcedo agreed to speak with representatives
from the District Attorney's office. (Bourges: Tr. 750). This
interview was videotaped and played for the jury. (Bourges: Tr.
750, 784-86). During the course of this interview, Salcedo
explained to the detectives that his mother's maiden name was
"Pena" and that his father's name was "Salcedo." (See Bourges:
Tr. 753, 805-06). Salcedo denied using the name "Pena." (Bourges:
Tr. 753). Salcedo, however, explained that the reason why he now used his father's
name was because his parents were not married and his father had
finally recognized him. (Bourges: Tr. 806). Salcedo also said
that, after moving out of 145 Audubon Avenue, he lived on St.
John's Avenue in the Bronx. (Bourges: Tr. 756). He also said that
he then moved to Manhattan, where he lived in places located on
Audubon Avenue, 183rd Street, and St. Nicholas Avenue. (Bourges:
Tr. 756-58). When asked by Detective Bourges if he had gone to
Puerto Rico following the shooting or if he ever lived there,
Salcedo denied having done so. (Bourges: Tr. 762, 788). When the
videotaped interview was completed, Salcedo was placed under
arrest. (Bourges: Tr. 786).
Salcedo did not present any evidence at trial.
B. Pre-Trial Singer Hearing
On or about September 29, 1998, Salcedo was indicted for two
counts of Murder in the Second Degree (one count of Intentional
Murder under N.Y.P.L. § 125.25(1) and one count of Depraved
Indifference Murder under N.Y.P.L. § 125.25(2)), one count of
Attempted Murder in the Second Degree, two counts of Assault in
the First Degree, one count of Criminal Possession of a Weapon in
the Second Degree, and one count of Criminal Possession of a
Weapon in the Third Degree. See Answer (annexed to Answer and
Appendix in Support of Answer Opposing Petition for a Writ of
Habeas Corpus, filed February 24, 2005 (Docket #6)
("Appendix")) ("Answer"), ¶ 6; Indictment, undated (reproduced as
Ex. A to Appendix). Prior to trial, Salcedo moved to dismiss the
indictment based on the pre-indictment delay pursuant to People
v. Singer, 44 N.Y.2d 241 (1978). A pre-trial hearing on this issue was held
before the Honorable Bonnie G. Wittner of the New York County
1. Evidence Presented at the Hearing
Detective Bourges testified that in early 1987 he was assigned
to review the November 7, 1982, murder of Jose Nuez. (See
Bourges: H. 7). Detective Hildebrandt was the original detective
assigned to investigate the case, but he had since retired.
(Bourges: H. 7-8).
Shortly after 3:00 a.m. on November 7, 1982, officers on the
scene of the shooting canvassed the building and spoke with
Salcedo in apartment 2C. (Bourges: H. 12). At that time, Salcedo
identified himself as "Tony Pena." (Bourges: H. 12-13). Salcedo
did not provide the "Night Watch" detective with any names other
than "Tony Pena" and "Rafael Enrique." (Bourges: H. 14-15). The
officers did not arrest him at that time. (Bourges: H. 12).
Detective Hildebrandt spoke with Salcedo later that same morning,
initially at apartment 2C (and later on "possibly" at apartment
6F) and then at the 34th Precinct. (See Bourges: H. 13-14). At
the precinct, Salcedo identified himself as "Tony Pena," stated
that his date of birth was November 8, 1947, and indicated that
he lived at 145 Audubon Avenue, apartment 6F. (Bourges: H. 14).
Salcedo did not provide Detective Hildebrandt with any name
besides Tony Pena. (Bourges: H. 15-16). Detective Hildebrandt did
not arrest, fingerprint, or photograph Salcedo at that time.
(Bourges: H. 16).
After Detective Hildebrandt interviewed Salcedo, he located
other witnesses and interviewed individuals "who were present
inside the club at the time of the incident and knew of Tony Pena as well as the cause and reasons for the dispute."
(Bourges: H. 16-17). Later on that evening, Detective Hildebrandt
returned to 145 Audubon Avenue in an attempt to speak to "Tony
Pena," but he was unable to locate him. (Bourges: H. 17-18).
Detective Hildebrandt did interview Trinidad and she stated that
"she had not seen" her husband since that morning. (See
Bourges: H. 18). Detective Hildebrandt learned from Hiraldo that
"Tony Pena" was the person "responsible for the shooting."
(Bourges: H. 20). Hiraldo believed that Pena "had gone to
Brooklyn," but he also indicated that he "may have left the
location in Brooklyn and . . . gone to Puerto Rico." (Bourges: H.
19). Hiraldo supplied Detective Hildebrandt with the address of a
grocery store in Brooklyn where he believed Pena may have been
located. (See Bourges: H. 20). On November 11, 1982, Detective
Hildebrandt went to the grocery store and recovered from a "back
room" clothing "that he believed belonged to either Antonio
Zuniga . . . or Tony Pena." (Bourges: H. 19, 21, 22A-22B).
Detective Hildebrandt obtained a telephone number from an
unidentified source who had a connection with Salcedo's possible
flight to Puerto Rico. (See Bourges: H. 21-22A, 71, 108-09). A
record check was conducted and it was determined that an address
in Puerto Rico corresponded to the telephone number. (Bourges: H.
22A). At that point the NYPD and the authorities in Puerto Rico
began to communicate. (Bourges: H. 22A). The Puerto Rican
authorities provided Detective Hildebrandt with the address of
Trinidad's mother and father. (See Bourges: H. 69, 117-118).
Detective Hildebrandt also requested a subpoena and obtained
Trinidad's telephone records. (Bourges: H. 22A). The telephone
number previously obtained by Detective Hildebrandt appeared on
the records. (See Bourges: H. 21-22A). Detective Hildebrandt began conducting "name checks" through
the Bureau of Criminal Identification ("BCI") using the name
"Tony Pena" and the corresponding date of birth, but these checks
produced negative results. (Bourges: H. 22B). Detective
Hildebrandt had neither a Social Security number nor fingerprints
for the person he knew to be "Tony Pena." (Bourges: H. 22B-22C).
It also came to Detective Hildebrandt's attention during this
time that "Tony Pena" had an additional alias, "Cipriano Vargas."
(Bourges: H. 22C). This name was also run through BCI, but again
produced negative results. (Bourges: H. 22C). Detective
Hildebrandt also ran "address checks" to determine whether a
"Tony Pena" living at 145 Audubon Avenue had been arrested.
(See Bourges: H. 22G). Within a week of the shooting, "a wanted
card was filed for the subject Tony Pena." (See Bourges: H.
22C, 22E). The "wanted card" was filed under the name "Tony Pena"
with the corresponding date of birth. (Bourges: H. 22E). The
"wanted card" indicated that Pena was also known as "Cipriano
Vargas" and "Rafael Enrique." (Bourges: H. 22E). The "wanted
card" was entered into a computer bank used to notify the police
if anyone with a corresponding name or identifying information
was arrested within New York City. (See Bourges: H. 22D-22E,
31-32). In addition, Detective Hildebrandt contacted an agency
called the "Terrorist Task Force" that would place photographs or
posters of the "wanted subject" in airports "for people leaving
the country" to view. (Bourges: H. 22F-22G).
On November 26, 1982, Detective Hildebrandt forwarded to the
Puerto Rico Police Department "a copy of [a] photograph, as well
as the name of Tony Pena." (See Bourges: H. 22E-22F, 112). Also
forwarded to the Puerto Rico Police Department was information
indicating that Pena "may be in the company of [a man] identified
as Antonio Zuniga, as well as [Pena's] relatives . . .,
particularly his common-law family." (Bourges: H. 22E-22F).
Neither Detective Hildebrandt nor any other representative from the NYPD
went to Puerto Rico in an attempt to locate "Tony Pena" at that
time. (Bourges: H. 73-74, 127).
On December 7, 1982, the Puerto Rican authorities sent a
teletype to the NYPD indicating that they had received the
information and that neither Pena nor Zuniga was in their
custody. (Bourges: H. 75-77, 113). The teletype also requested
that an arrest warrant be forwarded. (Bourges: H. 113-14). No
arrest warrant was forwarded. (Bourges: H. 114). There was no
indication that after December 7, 1982, Detective Hildebrandt
made any effort to find out what the authorities in Puerto Rico
were doing or asked them to attempt to locate Pena. (See
Bourges: H. 116, 120).
Detective Hildebrandt was eventually transferred to the
Homicide Task Force and the case was reassigned to two
detectives, one of whom was Detective Aponte. (Bourges: H.
23-24). During 1983, detectives made unsuccessful attempts to
locate Hiraldo and Trinidad at 145 Audubon Avenue. (Bourges: H.
24-25). At that time, the detectives believed that Trinidad had
gone to Puerto Rico and that Pena may have gone there as well.
(Bourges: Tr. 25, 135). After Detective ...