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SALCEDO v. PHILLIPS

September 13, 2005.

ANTONIO SALCEDO, Petitioner,
v.
WILLIAM PHILLIPS, Acting Superintendent of Green Haven Correctional Facility, Respondent.



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.

I. BACKGROUND

  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. 655).

  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).

  2. The Investigation

  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. 459).

  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. 266-67, 273).

  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: Tr. 595).

  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, 744-45).

  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 Supreme Court.*fn3

  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 ...


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