Convicted killer Brian Rivera, in bid for sentence reduction, testifies domestic abuse drove him to kill
Convicted killer Brian Rivera testifies in a Riverhead courtroom on Thursday. Credit: James Carbone
A convicted killer testified Thursday the violence he and his mother encountered at the hands of his father caused him to suffer years of anxiety and paranoia, fueling his teenage drug addiction and leading to the 2006 killing of a former classmate in a drug-related robbery.
Brian Rivera, 35, formerly of Holbrook, said it was that alleged childhood abuse that pushed him toward drugs, and eventually murder, as he is seeking a sentence reduction under the Domestic Violence Survivors Justice Act for the murder of Thomas Herzberg.
“It was the worst decision of my entire life, and I hurt a lot of people,” Rivera said of shooting Herzberg as he attempted to flee the scene of the botched robbery attempt.
Rivera, who is serving a 25 years to life prison sentence for second-degree murder, was the only one of four co-defendants to go to trial, as the others testified to him planning the robbery and firing the fatal gunshot.
Taking the stand nearly 17 years after a jury convicted him of second-degree murder, Rivera admitted those details in court for the first time Thursday on the second and final day of a hearing before Suffolk Supreme Court Justice Timothy Mazzei in Riverhead.
The admission was met with skepticism from prosecutors opposing Rivera’s application for relief as they reminded him of statements made both soon after he was convicted and in a letter to his sentencing judge last year where they said he shifted the blame to his co-defendants.
“I didn’t want to take responsibility for my actions at that point,” Rivera said of failing to admit his guilt to probation officers after he was convicted in 2007.
“No, I get that,” Assistant District Attorney Dena Rizopoulos said in response. “But you didn’t just not accept responsibility; you blamed other people, right?”
Even Mazzei at times questioned Rivera, who described his co-defendants as having a violent hold on him in the same ways his father did. Rivera said it was the other young men he was involved with that night who owned guns and controlled drug sales in his community.
Mazzei on more than one occasion stopped the attorneys questioning Rivera for clarity on why he was friends with the other individuals and sold drugs with them if he was “afraid of them,” as he testified.
“You couldn’t look for a job doing something else?” the judge asked Rivera.
“I had no other way of getting through life without drugs,” he responded.
Rivera said his drug addiction began when he was 12 years old and he began stealing pills from his mother, who testified Monday that she was an addict who also supplied him with drugs around the same time. Both Rivera and his mother, Leslie Kelly, told the court of times his father, who like Kelly was an NYPD officer, struck them, causing injuries. Rivera said he remembers abuse dating back to the time he was 3 years old.
The only other witness to testify during the hearing was Kathleen Cammarata, a social worker for the Legal Aid Society of Suffolk County, which is representing Rivera in his effort.
She told the court that during an evaluation of Rivera, which included meetings and telephone interviews with Rivera and family members, she found he had “experienced extensive domestic violence.” She also told the judge that incidents Rivera witnessed as an infant, including the shooting of his mother by his father, could have stuck with him.
The Domestic Violence Survivors Justice Act gives judges the authority to reduce the sentences of defendants who were victims of physical, sexual or psychological abuse at the hands of a blood relative, adoptive parents, person living in the same house or by a spouse or intimate partner or someone with whom they have a child.
Since its inception in 2019, the DVSJA has led to the release of two Suffolk County men and one from Nassau. A total of 49 defendants statewide have been granted some form of relief under the law, according to data tracked by the Survivors Justice Project, a New York City-based advocacy organization.
In order to qualify for relief, the abuse had to have been a contributing factor in the criminal conduct. The law does not require the perpetrator to have been abused by the crime victim.
Rivera will return to court Aug. 7 when his attorneys and prosecutors will submit written summations to Mazzei, who will issue a decision at a later date.
A convicted killer testified Thursday the violence he and his mother encountered at the hands of his father caused him to suffer years of anxiety and paranoia, fueling his teenage drug addiction and leading to the 2006 killing of a former classmate in a drug-related robbery.
Brian Rivera, 35, formerly of Holbrook, said it was that alleged childhood abuse that pushed him toward drugs, and eventually murder, as he is seeking a sentence reduction under the Domestic Violence Survivors Justice Act for the murder of Thomas Herzberg.
“It was the worst decision of my entire life, and I hurt a lot of people,” Rivera said of shooting Herzberg as he attempted to flee the scene of the botched robbery attempt.
Rivera, who is serving a 25 years to life prison sentence for second-degree murder, was the only one of four co-defendants to go to trial, as the others testified to him planning the robbery and firing the fatal gunshot.
WHAT TO KNOW
- Convicted killer Brian Rivera testified to years of domestic violence at the hands of his father, which he believes pushed him to a life of crime.
- Rivera admitted planning the robbery and firing the gunshot that killed Thomas Herzberg in 2006.
- Rivera is seeking a sentence reduction under the Domestic Violence Survivors Justice Act. In order to qualify for relief under the law, a judge must determine the abuse was a contributing factor in the criminal conduct.
Taking the stand nearly 17 years after a jury convicted him of second-degree murder, Rivera admitted those details in court for the first time Thursday on the second and final day of a hearing before Suffolk Supreme Court Justice Timothy Mazzei in Riverhead.
The admission was met with skepticism from prosecutors opposing Rivera’s application for relief as they reminded him of statements made both soon after he was convicted and in a letter to his sentencing judge last year where they said he shifted the blame to his co-defendants.
“I didn’t want to take responsibility for my actions at that point,” Rivera said of failing to admit his guilt to probation officers after he was convicted in 2007.
“No, I get that,” Assistant District Attorney Dena Rizopoulos said in response. “But you didn’t just not accept responsibility; you blamed other people, right?”
Even Mazzei at times questioned Rivera, who described his co-defendants as having a violent hold on him in the same ways his father did. Rivera said it was the other young men he was involved with that night who owned guns and controlled drug sales in his community.
Mazzei on more than one occasion stopped the attorneys questioning Rivera for clarity on why he was friends with the other individuals and sold drugs with them if he was “afraid of them,” as he testified.
“You couldn’t look for a job doing something else?” the judge asked Rivera.
“I had no other way of getting through life without drugs,” he responded.
Rivera said his drug addiction began when he was 12 years old and he began stealing pills from his mother, who testified Monday that she was an addict who also supplied him with drugs around the same time. Both Rivera and his mother, Leslie Kelly, told the court of times his father, who like Kelly was an NYPD officer, struck them, causing injuries. Rivera said he remembers abuse dating back to the time he was 3 years old.
The only other witness to testify during the hearing was Kathleen Cammarata, a social worker for the Legal Aid Society of Suffolk County, which is representing Rivera in his effort.
She told the court that during an evaluation of Rivera, which included meetings and telephone interviews with Rivera and family members, she found he had “experienced extensive domestic violence.” She also told the judge that incidents Rivera witnessed as an infant, including the shooting of his mother by his father, could have stuck with him.
The Domestic Violence Survivors Justice Act gives judges the authority to reduce the sentences of defendants who were victims of physical, sexual or psychological abuse at the hands of a blood relative, adoptive parents, person living in the same house or by a spouse or intimate partner or someone with whom they have a child.
Since its inception in 2019, the DVSJA has led to the release of two Suffolk County men and one from Nassau. A total of 49 defendants statewide have been granted some form of relief under the law, according to data tracked by the Survivors Justice Project, a New York City-based advocacy organization.
In order to qualify for relief, the abuse had to have been a contributing factor in the criminal conduct. The law does not require the perpetrator to have been abused by the crime victim.
Rivera will return to court Aug. 7 when his attorneys and prosecutors will submit written summations to Mazzei, who will issue a decision at a later date.
Grant Parpan covers Suffolk County courts and federal courts for Newsday. A Long Island native, he joined Newsday in 2022.
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