New York Times
June 15, 2011

Conviction of Officer Is Reversed


An appeals court on Tuesday overturned the manslaughter conviction of a former New York City police officer, ruling he was justified when he fatally shot a drunken driver while he was off duty four years ago.

In a 3-to-1 decision, a panel of judges of the State Supreme Court’s Appellate Division found that the officer, Rafael Lora, had good reason to fire his gun after the driver, Fermin Arzu, 41, crashed his minivan into two parked cars on a Bronx street in May 2007.

Mr. Lora had been convicted of second-degree manslaughter, a charge that requires a finding that a person “recklessly” caused the death of another.

But the appellate panel disagreed with the conviction, arguing that Mr. Arzu had endangered Officer Lora’s life by attempting to drive away in the minivan while the officer was pinned against it.

“He had been dragged by the car and he only discharged his weapon to extricate himself,” Mr. Lora’s lawyer, Stuart London, said. “It’s always a tragic situation when there’s a loss of life. But having said that, he was clearly gratified that the appellate court righted the injustice based on the verdict that the judge handed down.”

Officer Lora, 37 at the time of the episode, was fired after his conviction in 2009. His lawyer said he would seek reinstatement.

The Bronx district attorney, Robert T. Johnson, said that he disagreed with the decision, adding that “their analysis of the weight of the evidence was flawed.” He said his office would file an appeal.

“We agree with the dissenter that the trial court properly considered the offense of manslaughter in the second degree,” Mr. Johnson said, referring to the lone judge who ruled that the original conviction should stand.

During Officer Lora’s trial in 2009, both sides agreed that Mr. Arzu drunkenly crashed his minivan in the Longwood section of the Bronx late one evening, prompting Officer Lora — who heard the noise from inside his home — to come out and investigate.

Prosecutors argued that Officer Lora approached the minivan, asked Mr. Arzu for his license and registration, and then fired five shots as Mr. Arzu was reaching for his glove box.

But Officer Lora argued in his testimony that Mr. Arzu, as he was being questioned, suddenly threw something in his face, then shut the door to his van and hit the accelerator. Officer Lora said he was pinned against the van and ended up being dragged, forcing him to fire to free himself.

The appellate judges agreed with Officer Lora’s account, writing in their decision that since he fired only to extricate himself, he did not act recklessly.

In a statement, Patrick J. Lynch, the president of the Patrolmen’s Benevolent Association, applauded the decision.

“We take some comfort in our belief in the system that came to the proper conclusion,” he said.  “It was unthinkable to police officers that using justified force to preserve your own life while protecting your neighbors and your community could result in a conviction for manslaughter.”