New York Daily News

February 9, 2006

Shot cop loses fight

Kin take him off life support, attackers may face murder rap

BY AUSTIN FENNER, ALISON GENDAR, BOB KAPPSTATTER and ROBERT F. MOORE
DAILY NEWS STAFF WRITERS

The off-duty cop beaten in a Bronx White Castle and then shot three times by a fellow officer in a tragic case of mistaken identity died yesterday - potentially leading to murder charges against his attackers, law enforcement sources said.

The six suspects charged in the beating of Eric Hernandez could face manslaughter or murder raps if the medical examiner finds that brain injuries suffered in the attack led to his death 11 days later, the sources said.

Hernandez, 24, the star running back on the NYPD football team, died at 1:03 p.m. yesterday, surrounded by loved ones, after he was declared brain dead and his family decided to take him off life support.

"His valiant struggle over the last several days was emblematic of the grit and determination he demonstrated as a police officer and as an athlete," said Police Commissioner Raymond Kelly. "He fought courageously to the very end."

Kelly said Hernandez suffered "bleeding on the brain," but stressed that his gunshot wounds were also severe. He said the department would consult with the Bronx district attorney's office to explore elevated charges.

Steven Reed, spokesman for District Attorney Robert Johnson, said it was too soon to say what new charges, if any, might be filed.

The term of the grand jury, which has already indicted four of the six Bronx suspects, had been set to expire tomorrow, but the panel's work isn't over. "We have extended the grand jury's term and are awaiting results of the autopsy," Reed said.

A witness told the Daily News at least one of the alleged attackers, ages 16 to 26, was wearing steel-toed boots while kicking Hernandez. The cop suffered a broken eye socket, a medical source said.

Mark Heller, whose client, Edwin Rivera, 25, has been indicted on gang assault charges, said Hernandez died from the "unfortunate shooting" and not from the beating.

An autopsy was set for today.

Hernandez will be given a full-honors inspector's funeral, officials said. Police sources said Hernandez's death would be considered in the line of duty because witnesses said he identified himself as a cop to his attackers.

"Eric was a very special young man who touched the hearts of so many," his father, Efrain Hernandez, said last night. "We once again extend our gratitude to all who have given so much of themselves in our time of need."

Mayor Bloomberg expressed his condolences. "Officer Hernandez was a young and vibrant police officer dedicated to serving the people of New York City," Bloomberg said. "His death weighs heavily on our hearts."

The cop had been in critical condition since the Jan. 28 beating and shooting at the Webster Ave. burger joint. Dozens of cops visited him at St. Barnabas Hospital, including teammates who watched the Super Bowl there.

Surgeons amputated his right leg below the knee and removed his colon. And he was given more than 300 units of blood, at least 35 times the amount contained in an average adult body.

By early Tuesday, medical tests showed no signs of brain activity and a second brain scan confirmed the findings yesterday. Relatives then made the heart-wrenching decision to remove Hernandez from life-support.

"A normal person wouldn't have survived as long," said Dr. Charles Martinez, deputy chief surgeon for the NYPD. "It's a testament to his spirit."

Hernandez, with the force about 18 months, was bar-hopping after getting off work about midnight. Just before 5 a.m., he got into an argument inside the White Castle.

Witnesses said Hernandez, of White Plains, identified himself as an NYPD officer before he was attacked. Dazed and intoxicated, according to medical sources, he stumbled outside and pointed a gun at a man he mistakenly thought was one of his attackers.

Officer Alfredo Toro, responding to a report of "a man with a gun" raced to the scene and ordered Hernandez to drop his 9-mm. handgun - an account verified by a cell phone video of the shooting. Toro fired three times, hitting Hernandez in the abdomen and legs, after the off-duty cop ignored his commands to drop the weapon.

"Our prayers are with the family," said Laura Toro, speaking on behalf of her husband from their Orange County home.

Police sources said Alfredo Toro, with 19 years on the force, has been on administrative duty since the shooting.

After learning of Hernandez's death, about 150 cops stood at attention and lined the halls of the Bronx hospital, forming a white-gloved honor guard. Most were his colleagues from the 52nd Precinct, where officers from other parts of the city filled their assignments so they could go to the hospital.

"It was a very somber moment when they brought him out," said Sgt. Thomas Black.

Edward Gardner, general manager of the NYPD football team, solemnly removed a large gold team trophy, which he had left at Hernandez's bedside for inspiration.

A crew of motorcycle cops escorted Hernandez's body to the medical examiner's office at Bellevue Hospital, where more police officers were waiting.

"Let him rest in peace," said one cop as she wiped away tears.

With Jonathan Lemire, Derek Rose, Tanyanika Samuels and Jonathan Saruk