Monday, April 22, 2013

Calvin Barry, Toronto Lawyer

Spice victim bore ‘startling resemblance’ to car thief, defence lawyer argues

Megan O'Toole | 13/04/19 | Last Updated: 13/04/19 9:30 PM ET
More from Megan O'Toole | @megan_otoole
Naveen Polapady, owner of Maroli Indian Kerala Cuisine on Bloor Street West in Toronto, poses for a photograph at his second restaurant in Brampton, On., on Wednesday, April 25, 2012.
Naveen Polapady, owner of Maroli Indian Kerala Cuisine on Bloor Street West in Toronto, poses for a photograph at his second restaurant in Brampton, On., on Wednesday, April 25, 2012.
A year after the Prime Minister’s Office called to express support for Toronto restaurateur Naveen Polapady, the court on Friday heard a very different account of the vigilante Spiceman, whose case spurred a national debate on the rights of citizens to defend their property.

For the first time publicly, Manuel Belo — the 51-year-old who infamously received a faceful of masala spices when Mr. Polapady mistook him for a car thief — told his side of the story, describing how he began the morning of Aug. 21, 2011, on his bicycle, scavenging for bottles and cans to supplement his modest bricklayer’s income. He had just finished scanning the parking lot behind Maroli restaurant on Bloor Street, when out of nowhere he felt a substance “like spaghetti sauce watered down” thrown into his face.

“My vision was impaired. My breathing was impaired,” said Mr. Belo, a reformed crack addict who was once jailed for stealing copper wire and subsequently began volunteering at a local food bank.

“It was thrown directly over my face, all over my head… It went in my eyes, it went in my mouth [and] I couldn’t see anything at all,” Mr. Belo told Mr. Polapady’s assault trial. “My eyes were stinging.”

It became difficult to breathe, he added, as each gulp of air felt “like swallowing hot coals.” His first reaction was shock.

“I was just surprised,” he testified. “I didn’t realize what was going on.”

The precursor to the spice-hurling incident came four days earlier, when convicted thief Jason Mitchell broke into Mr. Polapady’s car to steal several items, including a GPS device and a laptop.
The defence contends Mr. Mitchell and Mr. Belo bore a “startling resemblance” to each other, almost like twins. Summoned to the stand Friday, Toronto Police Const. Shahrukh Mirza agreed they had “certain features” in common; both were white, had receding hairlines and were wearing backpacks and riding bicycles.

So when he found Mr. Belo lurking in the Maroli parking lot on Aug. 21, 2011, Mr. Polapady assumed he had caught the thief red-handed, the court heard. Surveillance footage shows the pair grappling as Mr. Polapady wields a broomstick.

Mr. Belo says he felt his body “being whacked” by that stick moments after the sauce-like spice mixture hit his face.

Whack. ‘Where’s my GPS?’ Whack. ‘Where’s my GPS?’

“I felt the stick break once [on my arm] and then I felt it break again on the other arm,” Mr. Belo testified, noting he pleaded with his attacker to stop, but all the other man said in response was: “Where’s my GPS?”

The stick connected with his legs and arms, Mr. Belo said, and opened a gash in his head that required six stitches.

“I tried to punch him but I couldn’t see where he was too well,” Mr. Belo said, adding he screamed at Mr. Polapady to leave him alone. “[I told him], ‘I’m just collecting empties. I don’t have the GPS. But all I kept getting was: Whack. ‘Where’s my GPS?’ Whack. ‘Where’s my GPS?’”

The two scuffled for a brief period before breaking apart and leaving the area separately, Mr. Belo on his bicycle and Mr. Polapady in his van. As he cycled away, Mr. Belo says he came across a garden hose and used it to wash the red spice mixture from his hair, ears and face.

During cross-examination, defence lawyer Calvin Barry suggested that even though Mr. Belo was not the GPS thief from days earlier, he had indeed attempted to open the back door of Mr. Polapady’s van on Aug. 21, 2011, and was “caught in the act.”

“You lunged at [Mr. Polapady]. To defend himself, he shot that chili pepper in your face,” Mr. Barry asserted.

“No,” Mr. Belo maintained.

“You lunged at him and with your other hand you grabbed at his throat… It’s a full-blown fight,” Mr. Barry said.

Mr. Belo disagreed, maintaining he had only stopped by the Maroli lot to check for bottles and cans. The ensuing struggle prevented him from attending his brick-laying job for a few days, he testified, primarily because of the swelling to his legs.

Ever since that fateful day, Mr. Belo says he has refrained from collecting any stray bottles or cans. Sometimes he comes across empties in the park, but he lets them lie.

“With my luck,” he told the court, “if I bent down to pick it up, squirrels would think I’m trying to steal their chestnuts.”

The trial resumes in June.

Calvin Barry Defends Spice Man

Spice man trial: ‘It felt like I was swallowing hot coals’

Manuel Belo, the man allegedly hit in the face with spices by a Toronto restaurateur, took the stand Friday in the continuing “spice man” trial.

Restaurateur  Naveen Polapady  is accompanied by wife Snigdha as he arrives for a court hearing in Feburary. Polapady is facing assault charges related to a violent tussle outside his restaurant in 2011.Restaurateur Naveen Polapady is accompanied by wife Snigdha as he arrives for a court hearing in Feburary. Polapady is facing assault charges related to a violent tussle outside his restaurant in 2011.

Manuel Belo hopped off his bike behind an Indian restaurant on Bloor St. W. early on a Sunday morning in 2011.

The 50-year-old was looking for empty bottles or cans in the recycling bins, as he does a few times a month in the alley that runs parallel to Bloor.

He thought he saw two empty liquor bottles — but was mistaken. He was getting on his bike to leave, when someone came up behind him and threw a substance like “watered-down spaghetti sauce” in his face.

“I couldn’t see anything at all, my eyes were stinging,” he told the court Friday afternoon as the so-called “spice man trial” continued. “It felt like I was swallowing hot coals.”

He couldn’t see who it was: “my sight was impaired, my breathing was impaired.”

“Stop. I’m just collecting empties,” he told the court he yelled. But then he felt a stick hit him, and a man’s voice yell repeatedly “where is my GPS?”

He felt the stick crack on his forearms, he testified. The man also hit him directly on his baseball-hat covered head, causing him to need stitches, Belo said.

The violent altercation, where Belo said he attempted to punch restaurateur Naveen Polapady though he was unable to see clearly, was caught on surveillance cameras operated by Polapady.

Polapady is facing assault charges related to the violent tussle that began with throwing what he calls “chicken masala” at Belo’s face.

Polapady has said he mistook Belo for a man he caught on video breaking into his car on Aug. 17, 2011. That man — Justin Mitchell, an acquaintance of Belo’s — was later arrested and pleaded guilty to theft under $5,000 last April.

However, Polapady’s lawyer Calvin Barry contends that Belo was trying to break into Polapady’s van that Sunday morning, and had the day before attempted to open the back door to the restaurant. Polapady lives above the restaurant with his family. Belo denies he made any attempts to break into Polapady’s property.

Belo — accompanied to court Friday by his tearful mother and brother — is a bricklayer by trade who has lived most of his life on Palmerston Blvd., a five-minute bike ride away from Polapady’s restaurant. He has been convicted on one charge of break-and-enter and two charges of attempted break-and-enter in 2006.

At the time he was addicted to crack and abusing alcohol, he told the court. However, the nine days he spent in jail and subsequent community service helped get him clean, he said.

Since Aug. 21, 2011, Belo no longer collects empty bottles and cans even from the park, he told the court. “Knowing my luck the squirrels would say I was trying to steal their chestnuts and I’d end up with rabies shots instead of stitches.”

The trial resumes in June.

The “spice man” case has grabbed attention for is similarities to the “Lucky Moose” case, in which Toronto store owner David Chen was arrested after catching and tying up a shoplifter.

Chen became the face of the “citizen’s arrest” legislation passed last June that empowers ordinary people to make arrests within a reasonable time of the crime being committed, when there’s no option to have police do so. It also permits people to take reasonable actions — as determined by a judge — to defend their homes and families.

Wednesday, April 17, 2013

Martin Montes, Associate to Calvin Barry

London man killed wife, made up story about robbers: Crown

Defense attorneys for Daniel Jimenez-Acosta, Setu Purohit and Martin Montes (l-r) leave court in London Thursday Apr 4, 2013.

London man killed wife, made up story about robbers: Crown

LONDON, Ont. - Daniel Jimenez-Acosta, 45, testified he thought it was a "dream, a nightmare" when he saw his wife bloody and lying face down in the basement laundry room of their townhouse.
After trying to lift his wife's body, she fell hard and Jimenez-Acosta said he went to the laundry tub and dunked his head under the tap.
"I wanted to wake up," he told his defence lawyer Martin Montes.
Jimenez-Acosta is on trial for second-degree murder after his wife's body was found badly beaten. Patricia Pacheco-Hernandez, 41, was a mother of three children.
When he took glass in his hand and sliced himself outside in front of a neighbour he was still trying to wake up, he told the court.
Assistant Crown attorney Fraser Ball challenged Jimenez-Acosta's dream-like state, saying it was instead a ploy to contaminate the crime scene to make it tough for police to investigate.
"No, I don't know how to do that," Jimenez-Acosta said.
Ball questioned why Jimenez-Acosta would remove a piece of wood from the family's back patio door.
Twice before, thieves had either broken into the family home or tried to while the couple's two sons were there. Their son wedged a piece of wood at the back patio door to reinforce it.
On the day his wife died, Jimenez-Acosta said he went to the store, looking for something the same size and shape as the wood because his wife wanted it to look nicer.
"Is it your bad fortune that in approximately that hour or so (you were gone) someone entered your home and brutally killed your wife?" Ball asked.
Ball said Jimenez-Acosta killed his wife after with a vase after she told him their marriage was over.
"That never happened," Jimenez-Acosta said.
Ball said Jimenez-Acosta removed the wood at the patio door and created a story about robbers,

"You used the dream-state story to cover up other details you couldn't contaminate," Ball said.
"It wasn't a dream, it was a nightmare," Jimenez-Acosta said.
Pacheco-Hernandez told him she wasn't going to pretend anymore, Ball said.
"No, she never said anything about getting out of the relationship," he said, adding the couple remained close to the end and even had sex the night before.
She smiled to him that morning, let him caress her. When he tickled her, she laughed. Someone who wanted out of a relationship wouldn't do that, he said.

Friday, April 12, 2013

Martin Montes, Associate to Calvin Barry, Defends Daniel Jimenez-Acosta

Daniel Jimenez-Acosta on trial for second-degree murder in death of wife 

By Kelly Pedro, The London Free Press

Calvin Barry and Associates- Defence Counsel on Murder trial of Daniel Jimenez-Acosta

Pathologist testifies at second-degree murder trial of Daniel Jimenez-Acosta in London 

By Jane Sims, The London Free Press

Patricia Pacheco-Hernandez’s mangled, bloodied hands told a story of terrible violence.

On her right hand, her ring finger and the tip of her thumb were almost amputated.

The ring finger of her left hand was almost cut off.

Several of her digits were fractured and twisted in unnatural ways. Her long fingernails were intact.

Photographs of her hands were shown Monday to the Superior Court jury at the trial of the woman’s husband, Daniel Jimenez-Acosta, during testimony from Edward Tweedie, the forensic pathologist who performed the autopsy on the woman’s body.

Tweedie said Pacheco-­Hernandez, 41, died from multiple blunt and sharp force head wounds on May 18, 2011, from at least 20 hits to her head.

The hand injuries were restricted to the top of the hands, an indication she put her hands onto her head attempting to ward off the blows, Tweedie said.

Jimenez-Acosta, 45, has pleaded not guilty to second-degree murder.

Tweedie said there were 49 different groups of wounds. The most significant were to her head and hands.

A large group of cuts and lacerations were at the top left and back of the scalp. Parts of the skull were visible, Tweedie said, and there were more than 20 depressed fractures of the skull.

Throughout the injuries were “innumerable fragments of broken glass in the hair and head,” as well as in her hands.

More injury was found on the back of the head and near the forehead. Tweedie said it was difficult to count how many times Pacheco-Hernandez was hit in the head, but gave a conservative estimate of at least 20 times.

The wounds would cause a lot of bleeding and blood had pooled on the floor when police discovered her in the laundry room

Tweedie said there was a “marked depletion of blood left in her body” at the time of autopsy.

Though there weren’t any visible injuries to the brain, Tweedie said he couldn’t rule out a concussion that could result in unconsciousness or death.

Though there were some scattered bruises on the back of her neck, there was no internal fractures consistent with strangulation.

Tweedie was shown the broken base of a lead-glass vase. He held it and remarked on its “significant weight” and that he saw photos of glass fragments that could have come from it.

Tweedie was asked by the police to comment on photos of Jimenez-Acosta that were taken by the police at the time of his arrest.

There were scrapes on his chest and four linear marks over the breast bone. Two more scrapes showed up on his leg. Dried blood was on the back of the fingers on the right hand.

None of the wounds were in an advanced stage of healing.

The chest injuries were “consistent with fingernails” scraped across the skin and could be Pacheco-Hernandez trying to defend herself, Tweedie said.

Defence lawyer Martin Montes narrowed his focus to broken shards of glass found in a front porch planter at the couple’s southeast London townhouse and asked if they could have caused Jimenez-Acosta’s injuries.

Tweedie said it was “not entirely impossible, but unlikely.”

Forensic scientist James Currie testified that DNA found under Pacheco-Hernandez’s fingernails were a match to Jimenez-Acosta’s profile. The odds of it belonging to someone else was placed at one in 240 trillion.

Currie explained that their testing showed that another person’s DNA can only show up under nails from more intimate or forced contact. It only shows up in 60% even with a heavy scratch and can easily be washed away.

The trial takes a day off Tuesday and returns on Wednesday.