On Tuesday afternoon in Brooklyn Supreme Court, defense attorney Robert Brown asked New York City Police Officer Andrae Fernandez when public housing cops are supposed to unholster their guns.
Fernandez paused, looking confused. "Can you rephrase, please?" he asked. The attorney retraced his steps, asking instead how many times Fernandez has pulled out his own gun in eight years on the force. Again Fernandez hesitated, visibly pondering the query. "Hundreds of times?" Brown suggested, breaking the silence.
"That's fair to say, yes," the officer responded.
The answer was exactly what the lawyer was looking for. It suggests armed caution is only natural for a public housing officer, like Fernandez, who polices in New York City's most dangerous neighborhoods. The grim contention comprised the meat of the defense on day two of the Akai Gurley trial, in which Officer Peter Liang is being tried for the accidental—but fatal—shooting of Gurley, a 28-year-old unarmed black man, in the decrepit stairwell of a project in East New York, Brooklyn.
The charges against Liang include criminally negligent homicide, second-degree manslaughter, second-degree assault, reckless endangerment, and two counts of official misconduct. Like Fernandez, Liang was a housing officer, assigned to patrol the neighborhood's Pink Houses, where the emphasis on quality of life crimes—and violence—was high.
On Tuesday, the details of what exactly went down at 11 PM on November 20, 2014, when Gurley and his friend Melissa Butler were headed downstairs from her apartment, were deeply dissected. The prosecution called Miguel Rivera, a resident of the building who had been friendly with Butler. Rivera was in his apartment with his wife, Melissa Lopez, when Butler frantically knocked in search of help as Gurley lay dying on the floor.
"She was panicking," he told the court. "Like, 'Oh my God, there's blood on my hands.'"
While Lopez—who testified Monday—jumped to call 9-1-1, Rivera stayed in the doorframe, assessing the situation from afar. He did not, he conceded, head down to see Gurley's body himself in the landing below. But he told the court that Liang looked just fine throughout it all—an account the defense contested, saying Rivera had previously told prosecutors Liang "was panicking and said, 'I shot him' and then said, 'Oh shit, let's get out of here.'"
After Rivera's testimony, the prosecution asked the two officers who responded to the radio call to offer context on the incident.
First up was Officer Salvatore Tramontana, who was on patrol with Fernandez at the Cypress Houses, another housing project down the block, at the time of the shooting. When the two arrived at the scene, Tramontana said he took over CPR for Melissa Butler, while his partner checked the stairwells for any other activity.
Like Fernandez, Tramontana's cross-examination mostly focused on how a housing officer should act in potentially perilous situations, and specifically "vertical patrols." The controversial procedure consists of officers scanning a building, floor by floor, as Liang and his partner were doing at the time of Gurley's death.
Tramontana told the court he arrived at the crime scene with his gun still in his holster, but reaffirmed, "Sometimes, you don't know when to pull it out." He added that being in a stairwell doesn't necessarily mean an officer would have his or her gun out; that it really depended on the situation. The protocol is the central issue here: Was Liang acting recklessly, and out of line from standard practice, when he fired the shot that ultimately killed Gurley?
The day before, prosecutors painted a scene where Liang failed at every junction: he fired his 9mm Glock sidearm without first scanning the scene; he failed to administer CPR, a tactic in which he was trained, after Gurley was hit by his ricocheting bullet; and he failed to call for help immediately—instead reportedly texting his union rep—as Butler performed CPR on her dying friend, prosecutors said.
"Peter Liang broke rule after rule after rule," Assistant District Attorney Gary Fieldner told the courtroom in his opening statement Monday.
When Fernandez took the stand on Tuesday, he told the court he was "informally trained" to have his gun out during vertical patrols. The defense honed in on that as an indication of Liang's innocence, the idea being that the shooting was a tragic accident that could happen to anyone on the job. Fernandez also told the court that the lights were out on the eighth floor, where Liang fired his gun, flashlight in hand.
A video played for the court during the testimony of Detective Matthew Steinar, a veteran crime scene investigator who surveyed the stairwell the next morning, corroborated Fernandez's claim. It was a first-person perspective of the walk down, which was dark and silent—almost Blair Witch Project esque. Gurley's clothes and blood smears are still visible on the concrete by the doorway on the fifth floor, where he eventually collapsed and died.
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