A second juror from the panel that convicted a Valley Stream man of manslaughter last year has come forward alleging misconduct by fellow jurists, but prosecutors are opposing Orlando Ortiz's appeal for a new trial.
The jury also acquitted Ortiz, 32, of murder and found him guilty of a gun charge after the December 2013 slaying of Richard Baccus, 50, of Queens.
Prosecutors said at trial that Ortiz shot Baccus, who was unarmed, in the head nine times out of anger after an argument between the two spilled outside of Ay! Caramba restaurant in Valley Stream.storyCops: Acquaintance faces murder chargesStoryLawyer: Set aside LI man's guilty verdictstoryMom: Murder acquittal 'terrible injustice'
Ortiz had testified he believed he was returning gunfire when he shot into a BMW at Baccus. He said Baccus, who had told him he was a U.S. marshal, pointed a gun at him and said he'd kill him. The defense told jurors it was believable Ortiz mistook a flashlight Baccus had for a firearm.
Testimony also showed Baccus -- who ran a car painting business -- had a fake bounty hunter badge with him that night while drinking with acquaintances that included Ortiz.
After the Dec. 22 verdict, juror Alice Perkins contacted the defense and alleged misconduct among other panelists. Juror Wilhelmina McCauley has since made similar allegations, and the defense has asked state Supreme Court Justice William Donnino to throw out the verdict.
However, the Nassau district attorney's office said in court papers that the jurors' claims aren't enough for Ortiz to show his trial wasn't fair.
"None of the allegations of juror misconduct constitutes improper outside influences or extraordinary circumstances warranting setting aside the verdict," Assistant District Attorney Brian Lee wrote.
Among arguments, Lee called it "inexplicable" that Perkins and McCauley wouldn't tell the judge of alleged juror misconduct during the trial when both sent at least one note to Donnino about other subjects. Lee said neither Perkins nor McCauley disagreed with the verdict during a court poll, and neither claims to have been coerced into the verdict.
In a Feb. 5 affidavit, McCauley claimed -- as had Perkins -- that some jurors ignored Donnino's instructions not to discuss the case before deliberations. McCauley, 56, alleged an alternate juror said Ortiz was guilty because he had an illegal gun, and some jurors joked of Ortiz's testimony about "bro time" -- or spending time with his brother -- on the night of the killing.
McCauley said after deliberations began, one juror dubbed eight panelists "team prosecution," as the majority tried to convince four jurors of Ortiz's guilt. McCauley also claimed all the jurors reached a point "where we felt that the witnesses who testified were not credible." Perkins had said some of the jurors who contended that none of the prosecution witnesses were believable were still vocal about wanting to convict Ortiz of murder.
Among other claims, Perkins, 53, alleged in a Jan. 2 affidavit that another juror said he wanted to take a detective's gun and shoot the defense attorney who cross-examined the detective -- a claim that juror denied.
Defense attorney JoAnn Squillace said Friday there was "unrefuted evidence of juror misconduct," adding that prosecutors didn't produce juror affidavits challenging claims from Perkins and McCauley.
Prosecutors declined to comment Friday on the case, which could be back in court next week.