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Vera v. State

Other Lower Courts

January 7, 2008

John Vera, Claimant,
v.
State of New York, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

For Claimant: Fred Lichtmacher, Esq.

For Defendant: Andrew M. Cuomo, Attorney General by: Michelle M. Walls, AAG.

OPINION

Alan C. Marin, J.

This is the decision following the liability trial of the claim of John Vera brought under the Unjust Conviction and Imprisonment Act ( 8-b of the Court of Claims Act). Mr. Vera had been convicted of his participation in the robbery of a family that owned a grocery store in Brooklyn.

The robbery covered two sites, Diana's Grocery and the owners' residence on South Third Street, also in Brooklyn. On Friday, January 6, 1994, some time after 11 p.m., two persons pushed their way into the South Third Street apartment of the Garcias. They threatened the family, which included Mr. and Mrs. Garcia and their two daughters, aged 9 and 14, to force Bernardo Garcia to give them the keys to the grocery and the safe they thought was at the store. At some point, at least one more member of the gang came into the apartment during the night of January 6 - January 7. There were other individuals who were part of the robbery gang at the grocery, and they used walkie-talkies to communicate.

On March 4, 1994, John Vera, who lived in the neighborhood, was arrested shortly after stopping into the Garcia store to buy a snack. He was the only individual who was tried for the crime; the others who were apprehended pled guilty. A jury found Vera guilty of six counts of robbery in the first degree, four counts of robbery in the second degree, five counts of burglary in the first degree and two counts of assault in the second degree (cl exh 4, 3; People v Vera, 235 A.D.2d 509, 653 N.Y.S.2d 360 (2d Dept 1997)) .

On February 6, 1995, claimant was sentenced to terms of 6 to18 years on the first degree robbery and burglary counts; 5 to 15 years on the second degree robbery counts and 2 to 6 years on the assault counts - - with all the time to run concurrently (cl exh 4, 3), and he was received soon thereafter into the custody of the State Department of Correctional Services.

Vera was released from the Arthur Kill Correctional Facility on January 27, 2000 on a writ of habeas corpus. On February 10, 2000, Justice Louis Marrero granted Vera's motion pursuant to paragraph (g) of CPL 440.10.1 (the discovery of new evidence): the conviction was vacated and all charges against him dismissed (cl exhs 7 & 23).

Claimant's Case

John Vera has always maintained his innocence - - that he was home on the night of the robbery. When claimant was arrested in the early evening of March 4, 1994, he said, "you've got the wrong guy" (cl exh 2). Detective William Soto, who made the arrest, testified that Vera had not tried to flee.

In January 1994, Vera was 20 years old, and had lived in the neighborhood for sixteen years in the house that his mother owned at 71 Maujer Street. [1] Upon his release from prison in 2000, he returned there to live. At the time of the robbery, claimant was working for Washington Inventory Services in Bayside, Queens as an inventory specialist with the responsibility of traveling to various stores and checking their merchandise levels. In January of 1994, Vera was working Monday through Friday with some weekend work. With a two-hour commute each way, he would leave for work at 4 a.m. and return in the evening around 8 or 8:30. Vera recalled that he started working part-time in late February or early March of that year.

The Garcias' grocery at 322 Union Avenue was a block or two away from Vera's residence. The day of the arrest, March 4, Vera had intended to get a haircut at a barbershop that was next door to the Garcias' grocery. Claimant walked into the store, bought a soda and a bag of potato chips, then went into the barbershop where "I got my spot." While waiting his turn, Vera crossed the street to where he had seen "some guys from the neighborhood that I know." That is where he was arrested.

Vera has two prior convictions, which defendant contends undercuts claimant's credibility as showing, per the formulation, that he puts his interests above those of society. See Morales v State of New York,183 Misc.2d 839, 845-46, 705 N.Y.S.2d 176, 180 ...


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