Alvarez v. Ercole

763 F.3d 223, 2014 WL 4056324
CourtCourt of Appeals for the Second Circuit
DecidedAugust 18, 2014
DocketDocket No. 13-2828-pr
StatusPublished
Cited by41 cases

This text of 763 F.3d 223 (Alvarez v. Ercole) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alvarez v. Ercole, 763 F.3d 223, 2014 WL 4056324 (2d Cir. 2014).

Opinion

CALABRESI, Circuit Judge:

Petitioner-Appellee Julio Alvarez was sentenced in 2004 to 45 years’ imprisonment for shooting and killing Daniel Colon and wounding two others. At trial, Alvarez’s defense strategy was to show that the New York City Police Department investigation had been incomplete in ways that created reasonable doubt that the government had proved its case against him. In support of this argument, Alvarez sought to cross-examine the lead detective to show that the police had not investigated leads provided by a witness, Edwin Vasquez, whose tips were memorialized in a detective’s notes and an investigative DD5 report. The trial court prohibited Alvarez from pursuing this line of questioning, ruling that it would lead to the introduction of impermissible hearsay. But Alvarez sought to cross-examine the detective about the Vasquez report in order to show that the police had not pursued known leads, and not to show that the content of the Vasquez report was true. Hence, the trial court’s ruling was error. Moreover, by further cutting off this line of questioning through an alternate “clear link” ruling, the trial court effectively denied Alvarez the opportunity to develop his only defense. Taken together, the trial court’s evidentiary rulings unreasonably applied clearly established Sixth Amendment law and drastically impaired Alvarez’s ability to present that defense.

[226]*226This error was by no means harmless because (as the district court observed) “[t]here was no forensic evidence tying [Alvarez] to the crime — no ballistics, no DNA, no fingerprints”; the eyewitnesses differed as to the color, make, and features of the car from which the killers fired; one victim failed to identify Alvarez until the police told him “we got the guy” and took him to a line-up; and the prosecutor, on summation, called criticism of the police investigation “speculation” and “submit[ted] to” the jury that the detectives “did a good job on this case” and “followed up on leads.”

We therefore affirm the judgment of the District Judge (McMahon, J.) granting Alvarez’s habeas petition under 28 U.S.C. § 2254.

I. BACKGROUND

A. Homicide in Hunts Point, New York

Around 2:30 p.m. on Saturday, April 6, 2002, Margie Rodriguez heard gunshots from the street below her Hunts Point, Bronx apartment and called 911. From her sixth floor window, Rodriguez saw two men drive off in a gray ear with a distinctive sunroof. Daniel “Dapper Dan” Colon, a local drug dealer, had been shot twice and lay dying in the street.

Moments earlier, Dan Colon had met with two teen-aged crack dealers: 15 year-old Manny Colon (no relation to Dan) and 19 year-old Aramis Fournier.1 Dan, Man-ny, and Fournier had discussed a recent police raid on their stash house at 735 Bryant Avenue. As Dan, Manny, and Fournier walked down Bryant Avenue, a car pulled up; one of its two occupants hopped out, said, “What’s up now, Dap?” and then opened fire. Despite gunshot wounds to his leg, Manny fled on foot while Fournier, who was also hit, played dead. Both of the teenagers survived. Dan, however, died en route to the hospital.

NYPD officers questioned Manny and Fournier within hours of the shooting, but neither identified the shooter or the driver. Fournier said that the car was “possibly a Toyota,” and Manny described it as “a small gold or silver car.” That same day, NYPD Detective Donnelly interviewed Ariel Roche, a car mechanic working on Bryant Avenue. Donnelly jotted notes during the interview, which he turned into a DD5 investigation report. According to Donnelly’s notes and the DD5, Roche told Donnelly that, at the sound of gunfire, he had run to the shop’s door, facing onto Bryant Avenue. Roche saw an Hispanic male in his twenties get into the back of a four-door gold or gray Maxima or Altima type vehicle. Roche said the man was carrying a gun. Donnelly’s notes include Roche’s description of watching the gold or gray car back down Bryant Avenue (a one-way street), make a turn, and then head northwest on Hunts Point Avenue. The car, Roche said, had New York plates.

The day after the shooting, a Sunday, Manny told police that he remembered the shooter’s name was “Julio.” On Monday, April 8, Detective DeSalvo in the 44th Precinct called Detective Monaco in the 41st (who was investigating Dan’s homicide). DeSalvo had detained Edwin Vasquez, a computer technician who claimed to have information about Dan’s murder. Detective Monaco interviewed Vasquez, taking hand-written notes which he later turned into a DD5 investigative report. According to the report, Vasquez told Monaco that either late on the night of Dan’s murder, or early the following morning, Vasquez’s longtime acquaintance “Ju[227]*227lio” told Vasquez that he “took care of’ his “problem” with a man who had argued with Julio’s wife, “Vianehi.” In the report’s words, Vasquez told the detectives that “the guy who was killed” had insulted both Julio and Vianehi, a slight that Julio could not “let ... lie.” The report also included Vasquez’s description of Julio as a Dominican man in his thirties who used the nickname “Chan” or “Chang,” drove a gray or charcoal-colored Acura Legend, and hung around a dark-skinned man known as the “General.”

The DD5 shows that Vasquez also gave the detective a phone number for Julio. Monaco’s notes from this interview include information additional to the DD5 report, like his notation “rips drug dealers — JULIO” on a page with Julio’s nicknames, physical description, phone number, and what appear to be directions to Julio’s home in Hunt’s Point, near the shooting. Below the directions, Monaco also jotted “borrowed 9 mm” and included several possible nicknames for Julio’s wife: “His wom[a]n is ‘Chena[,]’ ‘China[,]’ or ‘Chee-na[.]’ ” Another page of Monaco’s notes adds that Julio’s “partner,” “Herniniel” (“General” in Spanish, according to Monaco) lives in Yonkers. The DD5 report states that Monaco ran a “Nitro” database search using the nicknames that Vasquez gave for Julio. The database produced two potential suspects. But when Monaco showed Vasquez photo arrays containing pictures of these suspects, Vasquez denied recognizing any as “Julio.”

On April 9, 2002 — three days after the shooting — Detective Alfred showed Four-nier a photo array that included Respon-denb-Appellee Julio Alvarez’s image. Fournier did not identify anyone. On April 10, Alfred showed Manny a photo spread, again including Alvarez’s photo, whom Manny identified as the shooter. On April 12, almost a week after the shooting, Alfred again showed Fournier a photo spread including Alvarez’s picture. Four-nier said that Alvarez looked like the shooter but he was not sure, and failed to definitively identify anyone. Learning that the police were looking for him, Alvarez turned himself in and was arrested on April 15, 2002. Detective Alfred told Fournier and Manny, “We got the guy,” and asked them to view an in-person lineup, which included Alvarez. Both shooting victims identified Alvarez.2 Police searched Alvarez’s car pursuant to a warrant and found a box of 9 millimeter bullets in the trunk. The NYPD Firearms Analysis Unit could not fink these bullets to any gun used in the shooting.

Over a year before trial, the Bronx district attorney gave Alvarez redacted copies of the DD5 reports and notes from Roche’s and Vasquez’s interviews.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Martinez
2026 NY Slip Op 50308(U) (New York Supreme Court, Bronx County, 2026)
United States v. Whitehead
Second Circuit, 2026
United States v. Langhorne
Second Circuit, 2025
(HC) Watkins v. Hixson
E.D. California, 2025
Jones v. Miller
N.D. New York, 2025
United States v. Dennis
132 F.4th 214 (Second Circuit, 2025)
Chen v. Miller
E.D. New York, 2025
Murray v. Noeth
S.D. New York, 2024
Korsuntsev v. Melecio
E.D. New York, 2024
Degree v. Corey
S.D. New York, 2024
Lee v. Bell
S.D. New York, 2023
Lopes v. Rockwood
S.D. New York, 2023
Williams v. McGuinness
E.D. New York, 2023
Thomas v. Kirkpatrick
S.D. New York, 2023
Jones v. Bell
Second Circuit, 2023
State Of Washington, V. Jamel Lewis Alexander
Court of Appeals of Washington, 2023

Cite This Page — Counsel Stack

Bluebook (online)
763 F.3d 223, 2014 WL 4056324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvarez-v-ercole-ca2-2014.