Yonkers detectives lied in drug case, DA says

A Peekskill man serving a 15-year prison term should have his drug conviction tossed because Yonkers detectives testified falsely against him in 2012, the Westchester County District Attorney's Office has recommended.

Prosecutors contend that partners Dennis Molina and Christian Koch lied at the trial of Jamar Smythe when they claimed to have arrested him following a routine traffic stop, according to documents obtained by The Journal News.

Molina has been placed on modified duty pending an internal affairs investigation into the matter, Yonkers Police Commission Charles Gardner said Friday.

Smythe, 34, is scheduled to appear Tuesday before Westchester County Judge Barbara Zambelli, who could order him released.

The review of Smythe's conviction came as part of the investigation of Koch and Officer Neil Vera for their roles in falsifying a search-warrant affidavit in a March 21, 2014, apartment raid in which a tenant, Dario Tena, fell to his death out a third-floor window. Vera and Koch were indicted in October on perjury and misconduct charges in that case and are awaiting trial.

Prosecutors reviewed pending cases in which Koch and/or Vera were involved and dismissed drug charges against 20 defendants in 17 cases. But they generally left it up to defense lawyers to seek review of convictions.

Smythe's appellate lawyer, Herman Kaufman, brought his case to the District Attorney's Office in August, telling The Journal News at the time that "if (Koch) lied now it can be argued he did before as well."

While asking for the conviction to be vacated, prosecutors said the original indictment should be maintained. But there were no other police witnesses and Kaufman questioned on Friday how the case could go forward with Koch and Molina because they have "no credibility whatsoever." He wants the indictment thrown out, which would preclude further prosecution.

Molina and Koch were named together in three federal lawsuits since 2011, including one filed this year by Sabien Evans, one of the defendants cleared of drug charges because of Koch's involvement.

Smythe was arrested Sept. 16, 2011, after Koch and Molina stopped him purportedly for failing to signal when he turned into a parking lot on Radford Street. Molina claimed to observe a plastic bag of cocaine on the front seat; Ecstasy pills and 14 ounces of cocaine were allegedly found in the car.

The detectives testified they had been on routine surveillance and took notice of Smythe's car because he was driving slowly and hesitantly. But, in the prosecution's motion to vacate the conviction, Assistant District Attorney Steven Bender, the chief of the appeals and special litigation division, wrote that the detectives had been acting on information a confidential informant gave Molina.

"This impermissibly allowed the parties to litigate, and this Court to resolve, defendant's suppression motion on less than the true facts," Bender wrote.

Only Molina testified at a pre-trial hearing. Zambelli cited his "credible testimony" in finding that the drugs were in plain sight following a lawful traffic stop. That allowed the trial to go forward.

A friend of Smythe's who he was picking up that day testified at the trial that he had placed a backpack and jeans containing the drugs into Smythe's car just before police swooped in and that Smythe had no idea there were drugs inside.

Despite that, jurors relied on the detectives' testimony and convicted Smythe of first-degree criminal possession of a controlled substance. Zambelli sentenced him to 15 years in prison.

Bender indicated in an April 3 letter that the investigation was ongoing. But a spokesman for the District Attorney's Office would not say Friday whether criminal charges were being considered as a result of the detectives' trial testimony. Molina could not be reached for comment.

Detective Keith Olson, president of the Yonkers PBA, called the dismissal motion a "poor decision" and questioned whether either detective did anything wrong. He said they could have been on routine surveillance and if the traffic stop was appropriate, they had no reason to mention an informant.

"The cops did the right thing here getting a bad guy," Olson said. "The bad action is letting him go."

Smythe fought his conviction from the outset. In a letter to The Journal News last year, he insisted that he turned his life around following a six-year prison stint. He had pleaded guilty in 2004 to first-degree attempted assault for shooting a man in the head and to criminal sale of a controlled substance.

He said at the time of his 2011 arrest he was working two jobs and determined to stay out of trouble so he wouldn't be separated again from his two young daughters.

He wrote that his conviction was based on the lies of Koch and Molina and that he wanted to "expose these officers for their total disregard for upholding the law."

"The search of my vehicle was illegal and there was never any drugs in plain view," he wrote.

Twitter: @jonbandler