Robbery Charges Dismissed
18 year old man facing first degree robbery resulting in dismissal of charges

By Robin Topping NEWSDAY STAFF WRITER

Panel Puts Justice Before Prosecution
By Robin Topping NEWSDAY STAFF WRITER

In the criminal justice jungle, it’s a rare bird. Once criminal charges are brought against someone, the case is almost always resolved by either a guilty plea or a jury verdict.

Yet every now and then, prosecutors agree to dismiss a case even before it goes to a grand jury for a possible indictment. It happens if authorities believe they have the wrong person or they can’t prove the defendant’s guilt beyond a reasonable doubt – the standard used to convict someone of a crime.

Fresnel Byer, 18, is one of those who beat the odds. Byer was walking home from a deli in Freeport along with a friend about 9 pm on Oct. 15 when he found himself in the middle of a situation that would make his next few days pure hell. Byer said he and a friend had just bought cigarettes when they saw two men run down the street and past them. “I figured someone was shooting at them, so we crossed the street and started heading back to my friend’s house,” Byer said in a recent interview.

A First Precinct police cruiser did a U-turn right by Byer and his friend. Then the officer got out and told them to get down on the pavement. The officer searched them, then handcuffed them. Byer’s mother, Sandra Byer of Freeport, was driving down Nassau Road on her way home from her job as a school bus driver when she saw her son in handcuffs.

When the officers told her about their investigation for the attempted robbery nearby, she told them, “It can’t be my son. Trust me, you got the wrong kids,” she recalled. Officers drove the victim to the crime scene and from across the street, the man identified Byer and his friend as police shone a light on their faces. He said the two had tried to rob him at gunpoint in the parking lot of the deli where Byer had just shopped, and police arrested the two.

Byer, a cosmetology student who had never been arrested, said he tried to act relaxed when detectives interrogated him. “I knew I didn’t do it. I was laughing and joking because I was trying to show I was innocent. He was held in lieu of $50,000 bail at the Nassau County jail while his mother tried to raise the money.

While there, he and his lawyer said, he was beat up by other inmates three times after he refused to wash their clothes. “When they opened the cell doors, they started smacking me around,” Byer said. The third time he a was beaten up, other inmates blindfolded him with a sock and put battery acid on his forehead. When his mother came to visit and saw him after six days in jail, she complained and he was moved to another tier. After nine days, Sandra Byer was able to put up cash to get her son released.

Then they retained William Petrillo, a Rockville Centre attorney, who said that after sitting down with Byer, “I was as convinced as I could be that he was truly innocent. I went to the [prosecutor] and expressed my belief and she was very open-minded and she said she would let us know.”

A few days later, the assistant district attorney, Lesli Hiller, told Petrillo that police had spoken to a witness driving in the parking lot when the attempted robbery took place. The witness told police Byer and his friend were not the robbers, although the victim still maintained they were.

The case went to the so-called One Witness Committee of the Nassau district attorney’s office, where problematic cases are evaluated by senior prosecutors, said Joseph Burruano, executive assistant district attorney for litigation. “We reviewed the evidence and while we could not say the defendants were not involved, our feeling was we were not able to prove their guilt beyond a reasonable doubt so, in good faith, we couldn’t go forward,” Burruano said.

Police made the arrests that day despite the conflicting accounts because they had enough evidence to fulfill their legal standard for probable cause, Burruano said. The committee examines an average of 10 cases annually that are questionable because of conflicting witnesses or other problems before taking it to the grand jury. On average, two of those are dismissed, Burruano said.

Suffolk doesn’t keep similar statistics but such a dismissal before indictment is extremely rare, said Robert Clifford, district attorney spokesman. On Dec. 13, Hiller agreed to dismiss charges against Byer before Nassau County Court Judge Christopher Quinn, saving Byer from felony charges that could have sent him to prison for up to 15 years if he had been convicted. Charges were also dismissed against Byer’s co-defendant.

Sandra Byer said she is weighing her legal options and is very angry about the incident. “It traumatized me and took a lot away from my other three children because I couldn’t do food shopping some weeks because I had to pay the lawyer,” she said. “It also put the fear in me that if this could happen to him, it could happen to my other children.”

Fresnel Byer, who will need plastic surgery for his forehead scar, said he is relieved the is ordeal over. I just hope this never happens to anyone else,” he said of the wrongful charges. I 1eft feeling like I always have to watch my back.”