People v. Bell

71 Misc.3d 646

143 N.Y.S.3d 840

The PEOPLE of the State of New York, Plaintiff,

v.George BELL, Rohan Bolt, and Gary Johnson, Defendants.

287/1997

Supreme Court, New York, Queens County.

Decided on March 8, 2021

For Defendant Bell: Marc Wolinsky, Esq., Wachtell, Lipton, Rosen & Katz; Scott Stevenson, Esq.; Janet Sabel, The Legal Aid Society, Queens, New York (Ken Finkelman, Esq., of counsel)

For Defendants Bolt and Johnson: Rita Dave, Esq.

For the People: Melinda Katz, District Attorney of Queens County (Bryce Benjet, Esq., of counsel)

Joseph A. Zayas, J. Defendants George Bell, Rohan Bolt, and Gary Johnson move to vacate judgments of conviction imposed in connection with the December 21, 1996, murders of Ira Epstein and off-duty police officer Charles Davis. They allege that they are actually innocent and had no involvement in those crimes. They further assert, among other claims, that third-party culpability information, as well as impeachment evidence, that they specifically requested was withheld from them by the District Attorney's Office, and that, had this information been disclosed, there is a reasonable possibility that the results of their trials would have been different. The People agree with the defense on this point and therefore join that portion of the defendants’ motions. For the reasons that follow, the Court concurs in the parties’ analysis of the Brady issue (except to the extent indicated below), vacates the judgments of conviction on that ground, and holds the defendants’ remaining claims in abeyance.

Facts and Procedural History

A. The Murders of Ira Epstein and Charles Davis

Before sunrise on Saturday December 21, 1996, Ira "Mike" Epstein and off-duty Police Officer Charles Davis were shot and killed during an attempted robbery of Epstein's check cashing store at 94-21 Astoria Boulevard, in East Elmhurst, Queens.¹ An aggressive, all-hands-on-deck investigation by the New York City Police Department began almost immediately.

But, despite an exhaustive canvass, the descriptions of the perpetrators that the police were able to obtain from witnesses who had seen either portions of the crime itself, or the events that immediately preceded or followed it, were not particularly illuminating. There was, however, near unanimity about the fact that the perpetrators had travelled to and from the scene in a blue van.

The first significant break in the investigation came on December 23rd, when a man named John Mark Bigweh was arrested for selling marijuana. During a debriefing by Detective Bubelnik, Bigweh stated that, on Friday night, December 20th, he was with his friends "George Bell, Gary and Zebedia," on Northern Boulevard near 101st Street. The following morning, at around 6:00 a.m., Bigweh said, he returned to the same area to buy a blunt and saw George and Gary again. George had "a silver automatic gun" and Gary was talking about "get[ting] paid." Bigweh said he wasn't interested and left. He saw George and Gary get into a "red-like caravan with their homeboy driving."

The questioning of Bigweh continued for two more days. A series of statements of evolving content were produced. Bigweh ultimately told the police that he was a lookout for the attempted robbery of Epstein's check cashing store. His friends George Bell and Gary Johnson were involved, he said, as well as two other men — Jason, who drove everyone to the scene in a red (not blue) minivan, and "Roti." Bell and Roti were armed, and Bell was the shooter. Bigweh stated he had known Jason for about two years. He did not say how he knew "Roti."

Bell, who was 19 years old, and Johnson, who was 22, were arrested late at night on Christmas Eve. Their interrogations began during the early morning hours of Christmas Day. Detectives eventually elicited confessions from both men. In Bell's account, Roti (who Bell said was 19 or 20 years old) had recruited him to participate in the crime. Far more consequentially, he admitted shooting Epstein and Davis. Towards the end of a videotaped interview with an assistant district attorney that culminated the interrogation process, however, Bell appeared to say he was being "framed."²

Johnson, for his part, provided an extremely vague account of the crime, describing himself as an unwitting, hungover lookout. Bell and Johnson would quickly recant their confessions and assert that they had been coerced by detectives.

On Christmas Day, Rohan Bolt, the 35-year-old owner of a restaurant on Northern Boulevard, was arrested. A woman had told Queens Homicide Squad detectives that a man from whom she bought crack drove a red van. She canvassed the area with detectives looking for the drug dealer. They spotted his van on Northern Boulevard. The detectives followed the van to a grocery store parking lot and stopped the driver, Bolt. According to one of the detectives involved in the arrest, he asked Bolt if his name was "Roadie," and he answered affirmatively.³ Unlike Bigweh, Bell, and Johnson, Bolt denied his guilt to the police and did not make any incriminating statements. (When he testified in his own defense at his trial, Bolt denied that his nickname was "Roti" or "Roadie," or telling the detective that he went by such a nickname.)

In January, a Queens County Grand Jury returned an indictment charging Bell (alone) with six counts of murder in the first degree and two counts of murder in the second degree. In addition, Bell, Bolt, Johnson, and Bigweh were charged, under an acting-in-concert theory, with six counts of murder in the second degree (depraved indifference and felony murder), along with other related charges. With respect to Bell, the People later filed a notice, pursuant to CPL 250.40 (2), that they intended to seek the death penalty.⁴

At the end of January, Bigweh signed a formal cooperation agreement with the District Attorney's Office. Just eight days earlier, he had attempted suicide at Rikers Island, by taking pills. The District Attorney's Office obtained medical records related to the suicide attempt, which included information that Bigweh had a history of experiencing "AH [auditory hallucinations] of his dead mother at stressful times like his birthday or hers or the anniversary of her death. The voice tells him to ‘go home.’ " None of these records, which were in the District Attorney's file related to this case, were disclosed to the attorneys representing Bell, Bolt, and Johnson, despite specific requests for information of this sort having been made.

Several months passed before the police arrested a man that they believed to be "Jason," the alleged van driver. Jason Ligon's arrest was set in motion by a police debriefing of an informant.⁵ He was arrested at the end of May 1997, and interrogated by detectives. Ligon confessed to his role in the crime, and, in June, he was indicted on second-degree felony murder charges (Queens County Ind. No. 1893/1997).

As it turned out, Ligon's confession was false. He was in Washington, D.C., at the time of the murders, and video surveillance proved it. According to an affirmation filed by the District Attorney's Office during the litigation of a post-conviction motion filed by Bell, they knew, "sometime prior to January 1999," that Ligon had recanted his confession. And the defense alleges that, prior to Bell's trial, the District Attorney's Office had seen the surveillance video that exonerated Ligon. The People, however, did not move to dismiss the indictment against Ligon until June 15, 2000 — after Bell, Bolt, and Johnson had all been convicted in separate trials.

B. The Demands For Information Connecting The Speedstick Gang To This Crime

On May 9, 1997, while pre-trial proceedings were moving forward in Bell, Bolt, and Johnson's case, three men ambushed an armored car delivering payroll in Flushing Queens, that was being guarded by an off-duty police officer (Arthur Pettus) and a retired detective (Joseph Bellone). Dozens of shots were fired by the perpetrators, and both officers were shot multiple times. They were seriously injured, but survived. Three men were ultimately arrested, Aaron Boone, Robert Majors, and Bernard Johnson.

On May 12, 1997, before Bernard Johnson was arrested, the Daily News published an article about the armored car robbery. The article reported that "Boone and Majors are suspects in other payroll heists in Queens, including a December ambush that killed a check-cashing firm owner and off-duty Police Officer Charles Davis" (Alice McQuillan, The Daily News, Ambush suspect freed earlier , May 12, 1997).

The May 9, 1997 armored car robbery was not the first time that Aaron Boone had come to the attention of the police and the Queens District Attorney's Office. In fact, they had been investigating him and his twin-brother Ammon for several months. The Boones were believed to be the leaders of a violent robbery crew known as "Speedstick." One focus of the Speedstick investigation was the murder, on March 8, 1997, of an alleged Boones’ associate, Jamal Clark.

A DD5 concerning the investigation into Clark's murder recounts that, on March 28, 1997, two detectives from the Queens Robbery Squad, Sapricone and Calantjis, interviewed a witness, who the parties refer to as "Witness No.2," at the Queens District Attorney's Office. Witness #2, who was closely associated with Speedstick, was being held at Rikers Island on a probation violation. According to the DD5, the "QDA" had informed Sapricone and Calantjis that Witness #2 knew Jamal Clark.

Witness #2 told the detectives that, in January, he was hanging out with Clark and Clark said something to the effect that he "couldn't take it much longer" and that too much was going on. Clark specifically mentioned "that shit in Corona" (see footnote 1, supra ) as the source of his anxiety, implying that Witness #2 would know what he was referring to. Witness #2 responded that he didn't know what Clark was talking about; Clark told him to forget it, according to the report. That was the last time...