Guyanese man wrongfully convicted in NYC murder cleared after 36 years

For more than 30 years, Brian Kendall has insisted he and a few friends were simply playing video games inside a Flatbush game room after school when a man wearing a hoodie casually strolled in and fatally shot a clerk in the head.

That was in 1988. Kendall, who was 17 at the time, and his shocked friends ran outside to chase the shooter and flag a police car, according to his account.

Police and prosecutors didn’t believe him.

On Tuesday, in a dramatic reversal decades in the making, Brooklyn District Attorney Eric Gonzalez’s Conviction Review Unit (CRU) will announce that it has found Kendall is “likely innocent” and should have his conviction vacated and indictment dismissed.

“I only wish my mother and father were alive to see this day,” Kendall said in a statement.

About a week after the February 24, 1988, shooting, police took Kendall from his parents’ Flatbush apartment in handcuffs. They said two eyewitnesses identified him as the gunman in the 7PM shooting and charged him with the murder of Raphael Reyes inside the building on Cortelyou Road.

At his lawyer’s urging, he pleaded guilty to first-degree manslaughter in 1989 and was sentenced to eight years and four months to 25 years. His family was running out of money to pay the private attorney who had warned it would be “suicide” to take the case to trial.

Kendall served 16 years and eight months in prison before he was released in 2004. He was deported to Guyana, where he was born, the following year. He was technically a lawful permanent resident but unable to become a naturalised citizen on his own as a minor.

The decision is even more notable because Kendall pleaded guilty before trial and at six parole hearings. He says he did that because he believed that was his only path to his eventual freedom.

“For years, I carried the weight of a conviction that never should have happened,” he said in a statement issued Tuesday. “Today’s action doesn’t erase the pain or the time I lost, but it does give me hope.”

‘I Thought It Was a Big Mistake”

Eric Bjorneby, the prosecutor who handled the case, never disclosed to Kendall’s lawyer at the time that he wrote a letter seeking leniency on behalf of a key witness who was in prison on a drug conviction, according to the CRU report.

Bjorneby, who later became a Nassau County judge, served as a prosecutor in four other cases from the 1980s that were vacated by the CRU decades later, according to a May 2024 report in the news site Indypendent.

It remains unclear why police initially focused on Kendall.

Kendall said he was stunned when police came to his family’s apartment in Flatbush about a week after the killing.

“I thought it was a big mistake that they would correct,” Kendall told THE CITY during an interview last year.

Inside the police precinct, officers put him in a line-up and refused to let him call a lawyer, according to his account.

“I was the only teen in the line-up,” Kendall recalled. “The others were adults.”

“It was like these people kidnapped me,” he added, noting he was held without bail until the trial. His family hired a private attorney, Harry Dusenberry, who interviewed at least five people inside the game room at the time. They all said Kendall had nothing to do with the murder, according to the 35-page CRU report.

Many of the same people spoke to prosecutors at the time, the report said.

Witness Nicholas Ruiz, a friend of the victim, told cops the shooter was a man in his 40s, about 5’3” and 155 pounds, wearing a grey coat and cap. Kendall was 5’7” and 135 pounds at the time.

Police later said Ruiz didn’t want to cooperate with them after making that initial statement, according to the review unit’s investigation.

The DA insisted another two supposed eyewitnesses — a drug addict dealing with a potential jail sentence and a 13-year-old — were enough for a conviction and refused to drop the second-degree murder charges, the CRU report revealed.

The addict — identified only as “F.F.” in the report — claimed that he had been at the location earlier in the day and witnessed a verbal dispute between two teenagers and the clerk.

F.F. also told cops he saw the shooting and identified Kendall via a police photo array and in the line-up, according to the CRU report.

The case was before a judge, Francis Egitto, who had a reputation for doling out maximum sentences.

Plus, Kendall said his family was running out of money to pay Dusenberry.

“My mother was crying because of the anguish, the stress, the anxiety,” Kendall recalled.

Dusenberry, in turn, told the family that it would be “suicide” for Kendall to proceed to trial where he would almost surely be convicted and sentenced to 25 years to life, according to the CRU report.

“I had no choice,” Kendall remembered, saying he was never told he’d be deported at the end of his sentence.

After the sentencing, Dusenberry told CRU investigators that the prosecutor told him he was surprised the case didn’t go to trial.

“The prosecutor said the prosecution’s case was weak: there were problems with the witnesses, one may have become unavailable and the other may have had drug-related problems,” the CRU report said — without disclosing the name of the prosecutor.

Dusenberry thought Kendall was “screwed” but did not take any other legal steps to help him out, the report said.

The lawyer, who currently practises with his son according to the firm’s website, did not return a call or email seeking comment.

On Rikers before his sentencing, Kendall said he was repeatedly “jumped” for his clothes and food and had to constantly struggle to “survive the place”.

“You know how many fights I had?” he asked. “How many times was I knocked out?”

After he pleaded guilty, he was first sent to Elimira Correctional Facility and then transferred to Coxsackie Correctional Facility, a maximum-security prison in Greene County. He ultimately did time in 16 state prisons.

His parents never got over it, he said.

“This incident killed my family,” he said through tears. “My father used to say on the phone, ‘I failed you, my son.’”

“You can’t imagine your father telling you that,” he added.

Years to Resolve

A friend of his in prison, Mark Denny, whose wrongful conviction was overturned by the CRU in 2017, told him about the Brooklyn unit and gave him guidance on how to file a similar request to reinvestigate.

He reached out to Denny’s lawyer and other attorneys for help, but no one had the bandwidth to take his case.

So, in 2019, he filed his own case before the unit, praying someone there would give it a read.

The unit, revamped by the late DA Kenneth Thompson, is nationally acclaimed and considered a model for others throughout the country.

Despite a lack of legal assistance, Kendall’s initial filing made what seemed like a legitimate case and caught the attention of the unit, according to people familiar with the process.

But the unit also prioritises cases involving people still in prison.

Kendall’s request to reopen the case took years to resolve and went through multiple lead investigators. The case became the longest outstanding application in the unit when Charles Linehan took over in January 2022. He vowed to clear a backlog of cases and exonerated 12 people based on recommendations made by his staff during his three-year tenure.

As for Kendall, the CRU reinterviewed all the witnesses, police officers involved in the case, his defence lawyer and the prosecutor.

Many of the key witnesses, including the two lead detectives, are no longer alive, the CRU report noted.

Still, CRU staff discovered archived police radio transmissions that “in ways undermine the credibility” of the two purported eyewitnesses who identified Kendall, the report said. The radio reports indicate officers in a police car near the crime scene right after the deadly shooting saw a group of teens chasing a possible suspect.

The CRU report also discovered that the prosecutor handling the Kendall case — Bjorneby — promised to help F.F. with his prison case. Bjorneby wrote a letter to his “counsellor” asking for his earliest possible release, the CRU report said.

That missive was never handed over to Dusenberry, according to the CRU report.

Under prior discovery laws at the time, that sort of information was not required to be turned over to defence lawyers before trial.

The law was changed in 2019 to include that sort of material.

The discovery reforms were pared back in the latest budget, but they would still require prosecutors to disclose deals with potential witnesses, according to defence lawyers familiar with the rules.

When interviewed by CRU staff, F.F. said he no longer remembered who shot the clerk and could not recall the earlier altercation.

“He turned his life around and did not like to recall the earlier period when he was ‘lost to crack’,” the report said.

David Crow, of the Legal Aid Society, took on Kendall’s case last year and urged the CRU to vacate the conviction.

“Brian Kendall’s case is a stark reminder of the devastating consequences of a system that too often fails young people of colour,” Crow said Tuesday. “Despite clear evidence pointing to his innocence, Brian was forced to plead guilty under the weight of a broken process.”

Kendall told THE CITY that he filed the case with the CRU to “clear his name” and that he hopes to make his way back to the United States.

He plans to file an appeal with the US Department of Justice after his conviction is formally vacated in Brooklyn criminal court on Tuesday. The immigration case will be handled by the Board of Immigration Appeals.

When he was sent back to Guyana, he struggled financially and initially spent time sleeping on friends’ couches, Kendall recalled. He now lives in a modest apartment with his partner and works as an electrician.

“It’s been rough in Guyana,” he said. “Work isn’t coming as anticipated. I’m just surviving to pay the rent.”

When he was in prison, his mother died after a long battle with cancer.

“I stopped calling my mother because her voice started changing up, man,” he remembered. “I didn’t want to remember my mother like that.”

He was allowed to attend her funeral in handcuffs.

“My mother is not at rest,” he said. “This killed everybody in my family.” (www.thecity.nyc)