A photo showing a Queens man holding the semiautomatic handgun believed to be used to kill NYPD Officer and West Babylon resident Peter Figoski can be shown to the jury at the man's murder trial, a judge ruled Tuesday.
Attorney Harold Baker, representing defendant Kevin Santos, 32, of Ozone Park, argued that the picture was taken weeks before Figoski was murdered on Dec. 12, 2011, and that a police detective who is a firearms expert had testified Monday that he could not say it was the same weapon.
"Apples and oranges," Justice Alan Marrus told Baker in Brooklyn Supreme Court. "There is a different standard for the detective. He is an expert witness." The jury, Marrus said, could decide on its own whether the evidence established beyond a reasonable doubt that it was the same weapon. The photo was not introduced Tuesday.
Santos and Nelson Morales, 28, also of Ozone Park, are on trial, but with separate juries before Marrus. Both are charged with burglary for breaking into a basement apartment of a house in the Cypress Hills section of Brooklyn to steal money and drugs from the tenant. They are also charged with murdering Figoski, who was shot and killed by another burglar, Lamont Pride.
Pride was convicted of the murder in February. The jury in that trial, also before Marrus, was shown clips from a number of home and business security cameras that showed Pride fleeing through local streets before tossing the gun under a parked car. The accused getaway driver was acquitted by a separate jury, also before Marrus, a few days after Pride was convicted.
The two jury trials have caused some unusual courtroom shuffling. Both the Santos and Morales juries heard testimony at the same time Tuesday from Jose Hernandez, the tenant in the basement apartment who supported himself by selling marijuana.
But on cross-examination, he was first questioned by the attorney for Santos while the Morales jury was out of the room, and then by the Morales attorney while the Santos jury was out of the room.
Marrus opted for separate proceedings after Baker said some of his questions might be prejudicial to Morales, who is represented by attorney Wayne Bodden.Later in the day, the Santos jury was sent home and the Morales jury heard testimony from two detectives who said they spoke separately to Morales at the 75th Precinct hours after the murder and that he claimed to be a victim and was willing to cooperate.
The detectives said he made several conflicting statements over a period of hours, saying, for example, that he took the train to Brooklyn, but then saying he came in a car with four other men from his Ozone Park neighborhood.
Det. John Mullins said Morales at one point refused to sign a card acknowledging he had been read his Miranda rights. "He said he's been shot in the past and his mother said not to cooperate with police," Mullins said. However, Morales did sign the statement itself, the detective said.
Morales made a videotaped statement to prosecutors that was expected to be played in court Wednesday.