As the Queens murder trial of slain NYPD Officer Jonathan Diller came to a close Tuesday, the defense tried to cast doubt on the testimony of Diller’s fellow cops — a tactic the prosecution dismissed as an effort to twist the truth worthy of a William Shakespeare play.
For the defense, the case boils down to a simple question for the jury — did Guy Rivera, 35, intended to shoot Diller on March 25, 2024?
Defense lawyer Jamal Johnson told a Queens Supreme Court jury Tuesday that none of the evidence they saw over the course of the three-week trial showed that to be the case.
“All of the officers … they have a motive to lie. A member of their team had been shot. They have an interest in the outcome of this case. You can evaluate that and assess their credibility,” Johnson said, challenging the officers’ testimony about the moment his accused killer fired the fatal gunshot on a Queens sidewalk two years ago.
Video of the shooting reviewed in court showed one of the officers, Sgt. Sasha Rosen, reaching into a parked car to grab Rivera in the moments before the gunshot.
But Assistant D.A. John Kosinski said he wasn’t shoehorning facts into a false narrative.
“The facts tell the story,” the prosecutor said, calling the defense’s reason for the shooting a weak attempt at making excuses and blaming Rosen.
“Excuses two years later don’t amount too evidence. Attorneys making brilliant arguments don’t amount to evidence. William Shakespeare, standing in front of you right now, couldn’t come up with the words and put them together to show the defendant didn’t fire that gun.”
“That gun goes off because Sgt. (Sasha) Rosen is pulling it, and guess what, members of the jury, that is unintentional,” Johnson claimed in his closing argument at Rivera’s murder trial. “You can’t convict of murder in the first degree.”
Assistant D.A. Kosinski countered that Rivera knew he was about to get caught with two loaded, working guns — and he made the decision to try and shoot his way to freedom.
“He sees them there. He knows what’s coming,” Kosinski said. When that moment happens, the intent is there. It’s crystal clear.”
The 31-year-old Diller was working as part of a five-officer team on Mott Ave. in Far Rockaway when Rosen spotted an L-shaped object in the pocket of the suspect’s hoodie.
They followed him to a parked Kia, where, prosecutors say, Rivera reached for his gun and fired a single shot at Diller, hitting him in the stomach, and then pointed his gun at Rosen’s chest only for the gun to jam.
Another officer, Det. Veckash Khedna fired twice in the chaos, wounding Rivera.
Khedna took the stand last week to say that despite the obscured view of his body-camera, he saw with his eyes that Rivera had “full control” of the gun.
Johnson challenged that testimony, noting that of all of the cops who testified, Khedna was the only one who didn’t also testify before the grand jury that indicted Rivera — meaning he wasn’t locked into a story by prior sworn testimony.
“So now he’s the one who’s gonna come up and say, ‘Oh yeah, I saw it clearly, I saw the gun,’” Johnson said.
Over the course of his two-hour closing argument, Johnson zeroed in on several moments from surveillance and bodycam footage of the shooting — which he argues shows that Rosen had both hands inside the parked Kia, grabbing and pulling at the gun before it went off.
“Members of the jury, this is their evidence. This is their evidence. Their evidence shows that there’s pulling, that there’s a struggle before the gun discharges,” he said. “How can you convict of murder?”
Johnson argued his client should only be found guilty of criminal possession of a weapon — and not first-degree murder, attempted murder or aggravated manslaughter. He asked jurors not succumb to pressure because of the emotions on display during the trial.
Kosinski countered that all of the evidence from the scene corroborates the officers’ accounts.
“We don’t tell a story, trying to fill in the facts,” the prosecutor said. ” The facts tell the story. We don’t hide from them We didn’t hide anything from you.”
Rivera refused to get out of the car or engage with the officers at first, opening the window just a crack before he’s ordered to step out of the vehicle, the prosecutor said, and after he lifted his seatbelt over his head, he turned left and reached into his right hand into his right pocket.
“Over and over you can watch it, now you see, the right hand goes into the right pocket He’s putting his hand int that pocket, Kosisnki said. “That’s the trigger, where he puts his index finger.”
Rosen testified that he grabbed Rivera’s upper arm with one hand, and that his other hand was moving into the threshold of the car, and he never grabbed the firearm.
“He said, ‘I saw the gun and the gun went off simultaneously.’ How could he have grabbed that gun before he even saw it,” Kosinski told the jury. “Is there any evidence that this defendant tried to ditch that gun? None, zero, nothing.”
He added,
Kosinski pointed to video showing that Rivera tightly gripped the trigger of his weapon after it had jammed, and after he was on the ground, wounded, until Diller, in his final breaths, wrested the firearm from his killer’s hand.
“He’s not done. He’s down but not out,” Kosinski said of Rivera. “Look at that picture right now. He still wants to shoot.”
Kosinski also bristled at Johnson’s suggestions during the trial that the officers were racially profiling Black and minority New Yorkers during their patrol that night.
“Why were these questions asked? Because if the evidence isn’t on your side, you’ve got to come up with something else,” he said.
The jury will start its deliberations Wednesday.