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Appellate panel tosses Bay Shore man's manslaughter conviction

Wilfredo Flores is seen in Suffolk County Court

Wilfredo Flores is seen in Suffolk County Court in Riverhead in March 2015. Credit: Joseph D. Sullivan

A state appellate court has thrown out a Bay Shore man's manslaughter conviction, ruling that a Suffolk prosecutor's misconduct during his closing argument deprived the man of a fair trial.

The Brooklyn-based Appellate Division Second Department also ruled that Suffolk County Court Judge John Toomey Jr. should have allowed the jury to consider a lesser charge of criminally negligent homicide in the case of Wilfredo Flores, 32. He was convicted in 2015 of second-degree manslaughter in the stabbing death of Carlos Velasquez, 40, of Central Islip.

Flores stabbed Velasquez in the abdomen during a party on March 9, 2014, slicing his liver and piercing his heart. During the trial, defense attorney Bryan Browns of the Legal Aid Society argued that Flores was defending himself against the much larger Velasquez.

"I'm absolutely ecstatic" about the decision, Browns said. "I'm glad they [the appellate judges] recognized the closing argument was full of improper statements."

The court ruled that Assistant District Attorney Raphael Pearl's closing argument went well beyond what was permitted.

"The prosecutor engaged in misconduct throughout his summation by continuously referring to the defendant as a liar, misstating evidence, denigrating the defense, shifting the burden of proof, attempting to arouse the sympathies of the jurors, and vouching for his witnesses' credibility," the court's decision said. "The cumulative effect of the prosecutor's improper comments deprived the defendant of a fair trial."

The Suffolk district attorney's office did not immediately respond to a request for comment.

The appellate court dismissed the indictment against Flores. He will be brought back to Suffolk for a bail application hearing and where prosecutors can decide whether to seek a new indictment against him.

The court also criticized Toomey for permitting Pearl to question Flores about why he exercised his right to remain silent after his arrest. The right to remain silent is absolute and "absent unusual circumstances," the court wrote that prosecutors may not challenge a defendant for using that right.

Flores was acquitted of first-degree manslaughter, which carries a maximum penalty of 25 years in prison, but was convicted of second-degree manslaughter. Toomey sentenced him to the maximum of 5 to 15 years in prison. The appellate court said the jury should have been allowed to consider criminally negligent homicide, which has a maximum of 2 1/3 to 7 years in prison.

"Had the jury credited the defendant's account of the incident, it reasonably could have concluded that the defendant did not intend to cause serious physical injury and that he failed to perceive that his conduct created a substantial and unjustifiable risk that death would occur," the court's decision said.

Browns agreed. "Mr. Flores was being viciously attacked, and he defended himself," he said. "When you're defending yourself, you can't foresee that someone is going to die."

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