Convicted killer Brian Rivera's mother tells judge her son was the victim of domestic violence
Brian Rivera, right, attends a court hearing at Suffolk County Court in Riverhead on Monday. Credit: James Carbone
Brian Rivera was a toddler — and asleep in bed with his mother — when his father allegedly shot his mother in the right foot in their Lake Ronkonkoma home in 1989.
A few years later, when Rivera was 5½ years old, he was "right there in the kitchen" and crying, his mother, Leslie Kelly, recalled Monday while testifying in Suffolk County Court in Riverhead, when his father allegedly "threatened to kill me" with a hammer.
"Brian was always trying to protect me," said Kelly, a retired NYPD sergeant now living in Florida, speaking of her then-kindergarten-age child who she said was using and selling drugs by the time he was in the sixth grade.
Rivera, 35, of Holbrook — who is now an inmate in the infamous Sing Sing Correctional Facility after his conviction in the 2006 killing of Thomas Herzberg — watched Monday as his mother, on the witness stand, described his alleged childhood trauma.
WHAT TO KNOW
- The mother of a convicted killer told a Suffolk judge on Monday her son was the victim of domestic violence when he was growing up.
- Leslie Kelly's testimony could be key in determining whether a judge grants Brian Rivera, her son, early prison release under the Domestic Violence Survivors Justice Act.
- Rivera, who is serving the 16th year of a 25 year prison sentence for second-degree murder, is expected to testify Thursday, when a hearing before State Supreme Court Justice Timothy Mazzei resumes in Riverhead.
Her testimony could be key in determining whether Rivera will be granted early release under the Domestic Violence Survivors Justice Act. Rivera is serving the 16th year of a 25-years-to-life sentence for second-degree murder in Herzberg's killing.
The 2019 law 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.
In order to qualify for relief under the law, 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.
The act has led to the release of two Suffolk County men and one from Nassau since its inception. Rivera's case is one of about two dozen pending applications across New York State being tracked by Kate Mogulescu of Brooklyn Law School, the director of Survivors Justice Project. They are all what Mogulescu describes as “extreme sentences.”
Since the law was enacted, 49 defendants statewide have been granted some relief, according to data tracked by the Survivors Justice Project.
Rivera and three other men tried to rob Herzberg and his friend, who were attempting to buy OxyContin from Rivera on Oct. 23, 2006. Herzberg was fatally shot in the neck.
"Brian Rivera got what he deserved," Herzberg's father, Lawrence, said when Rivera was sentenced. Herzberg's parents have both since died.
Suffolk County District Attorney Ray Tierney opposes the law, saying it "supports vigilantism" and usurps the authority of judges who sentenced defendants with the knowledge of their abuse history.
In court Monday, Suffolk Assistant District Attorney Dena Rizopoulos questioned Kelly's testimony, attempting to note what the prosecutor painted as inconsistencies with her previous written statement.
Kelly testified Monday that her estranged husband had raped her, under direct questioning by one of Rivera's Legal Aid Society attorneys, Mark J. Ermmarino, but did not include that detail in her previous statement, the prosecutor pointed out.
"I just didn't think people would believe that," said Kelly.
And Rizopoulos questioned whether Kelly, who testified she lost custody of her son and his siblings as she battled an addiction to Vicodin for several years, was testifying because she loves her son and "feels like you let him down."
Kelly testified that she sometimes gave drugs to her own son as a reward when he did his chores, saying: "I honestly believe Brian didn't even have a chance in hell at having a normal childhood."
Asked if she would lie for her son, Kelly said, "Never. I wouldn't lie for anyone."
Rivera is expected to testify Thursday, when the hearing before State Supreme Court Justice Timothy Mazzei resumes in Riverhead.
Nicole Fuller is Newsday's senior criminal justice reporter. She began working at Newsday in 2012 and previously covered local government.
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