NYPD bodycam footage will exonerate Det. Jonathan Diller's accused killer, defense says

An accidental discharge from a handgun killed NYPD Det. Jonathan Diller two years ago, a defense attorney told a jury Tuesday in the trial of the man accused of fatally shooting the Massapequa Park resident.

Defense attorney Erin Darcy made the claim to a jury during opening statements in the trial of Guy Rivera in Queens State Supreme Court for allegedly gunning down Diller on March 25, 2024. Rivera discharged the weapon unintentionally during a struggle with police trying to take him into custody, Darcy told the jury.

She also said police body camera footage will prove the shooting was accidental.

"The tragic outcome doesn’t always follow intent ... or evil," said Darcy, one of the Legal Aid Society lawyers defending Rivera, 36, of Queens.

Dueling openings

Tuesday's opening statement was the first time many in the courtroom had learned of Darcy's defense strategy. Rivera is on trial for first-degree murder, second-degree murder and the attempted murder of another police officer, as well as weapons charges.

Earlier Tuesday, assistant district attorney Kenneth Zawistowski, in his opening statement, maintained that the evidence presented at trial, including body camera footage as well as eyewitness testimony of Diller’s fellow officers, would prove Rivera's intent.

Police said Diller was shot and killed after he and fellow officers began to suspect that Rivera had a handgun in his sweatshirt pocket and decided to approach him as he sat in a Kia Soul on Mott Street in the Far Rockaway section of Queens. The driver of the Kia, Lindy Jones, 43, was also arrested in the case on weapons charges but is not accused of killing Diller. Jones is slated to go to trial at a later date.

The first witness called by prosecutors Tuesday was former NYPD officer Steven Mihalik, now an officer with the Suffolk County Police Department. Mihalik testified that he responded to reports of an officer needing assistance while part of a special patrol of a Queens South community response team.

Mihalik said he and other officers raced to the scene in an unmarked police vehicle. Mihalik’s body camera video was played for the jury and showed a wounded Diller lying on the ground by 19-19 Mott Ave. with what appeared to be blood spots on his khaki trousers.

Video in court

The video showed Mihalik and other officers picking up Diller and driving him to the nearby Jamaica Hospital Medical Center.

"'Stay with us, stay with us,'" Mihalik testified he kept telling the mortally wounded Diller, who was in the back seat of the vehicle.

As Mihalik’s vehicle drove up to the hospital, officers surrounded the gurney and a doctor can be seen in the video climbing on top of Diller to try and revive him. Diller, 31, was pronounced dead later that day.

The slain detective's wife, Stephanie, was in court with other relatives Tuesday. During the Mihalik body camera video some family members left the courtroom.

Rivera faces up to life in prison without parole if convicted of the top charges.

Police Benevolent Association president Patrick Hendry, who attended Tuesday’s court session with scores of other officers, said outside the courthouse later in the day that he believed Rivera intentionally killed Diller.

"Let us be clear: this violent, repeat offender intentionally pulled that trigger and killed our hero brother and needs to stay behind those bars for the rest of his life," Hendry said.

Traumatic images

Recalling the video narrated in court by Mihalik, Hendry said seeing the images was traumatic for all the officers in the courtroom.

"It was very painful to see Jonathan on the ground after being shot, his fellow police officers doing everything they could to get him into the [police vehicle], to get him to that hospital as fast as possible," Hendry said.

In her opening statement, Darcy indicated that the proof Rivera’s handgun fired accidentally would be found in a fragment — perhaps not longer than a second or two — of body camera footage from Diller’s partner, Sgt. Sasha Rosen. Darcy said the video would show that Rivera’s weapon discharged when Rosen was tussling with him to get him out of the Kia.

Rosen, a nearly 25-year veteran of the NYPD, is expected to testify Wednesday as a key prosecution witness. The defense had asked Queens Supreme Court Justice Michael Aloise to allow for the introduction of copies of Civilian Complaint Review Board complaints and other materials to impeach Rosen’s credibility when he testified. But Aloise said the complaints, dating as far back as 2009, were too far remote in time to be of any relevance to the case.