FIVE DEFENDANTS PLEAD GUILTY IN THE GANG ATTACK OF AN OFF
DUTY POLICE OFFICER AT A WHITE CASTLE RESTAURANT

Bronx District Attorney Robert T. Johnson announced today that five Bronx men pled guilty to assaulting an off duty New York City Police Officer, Eric Hernandez, at a White Castle Restaurant on January 28, 2006. The guilty pleas were entered as jury selection was set to begin.

Edwin Rivera, 27, of 1295 Spofford Avenue, pled guilty to the top count in the indictment, Gang Assault in the 1st degree. Rivera, who instigated the attack, will be sentenced to a term of 10 years imprisonment..

Nelson Rodriguez, 28, of 621 Manida Street, pled guilty to one count of Attempted Gang Assault in the 1st degree and will receive a sentence of 6 years imprisonment.

Alexander Fontanez, 25, of 1168 Sherman Avenue, and Jonathan Ayala, 21, of 1150 Garrison Avenue, pled guilty to one count of Gang Assault in the 1st degree and will be sentenced to 5 years imprisonment.

Victor Mercado, 17, of 1212 Seneca Avenue, also pled guilty to one count of Gang Assault in the 1st degree and will be sentenced to a term of 1 1/3 to 4 years imprisonment. Mercado, who was 15 when the crime occurred, will be sentenced as a youthful offender.

All of the defendants waived their right to appeal their convictions and all except Mercado will be subject to an additional 5 years of post release supervision after completing their sentences. State Supreme Court Justice Joseph Dawson will sentence Rivera, Ayala, Fontanez, and Rodriguez on Wednesday, May 28, 2008 in Part T-31. Mercado will be sentenced on Thursday, June 5, 2008.

The defendants admitted that they had acted “with intent to cause serious physical injury to Eric Hernandez, and being aided by two or more persons actually present, did cause serious physical injury.” Hernandez was punched and kicked at a White Castle Restaurant at 1831 Webster Avenue early Saturday morning on January 28, 2006. After leaving the restaurant following the beating, Hernandez drew his off duty revolver while confronting a bystander whom he mistakenly believed to be one of the people who had attacked him. Police Officers responding to the scene observed Hernandez, who was wearing civilian clothes, holding a gun. The officers ordered Hernandez to drop the weapon and shot him when he failed to comply. According to the Medical Examiner, Hernandez died as a result of the gunshot wounds.

None of the defendants was charged with any criminal liability in the off duty officer’s death. District Attorney Johnson said at the completion of the investigation into the circumstances leading up to the fatal shooting: “While the people who.....beat and kicked Officer Hernandez may be morally responsible for his death, as a matter of law, they cannot be held criminally responsible for this tragic loss of life.”

A sixth defendant charged in the gang assault, Daryl Massey, 25, of 1230 Boston Road, is still awaiting trial.

Senior Assistant District Attorney Nancy Borko and Assistant District Attorney John Tseng are prosecuting the case.