Do cell phone records prove man's innocence?

March 25, 2010 3:23:46 PM PDT
A Brooklyn man is trying to use technology to prove his innocence. Prosecutors have used cell phone records to prove the guilt of suspects, the most famous so far being that of New York City bouncer Darryl Littlejohn, convicted of murder. Now, defense attorneys are using the same technology to try and prove their clients are innocent.Most people are sleeping in the middle of the night, and that's a tough alibi if you're charged with a crime. But a Brooklyn man just may be saved from a very long prison term because of his unusual hours.

Twenty-six-year-old Anthony Fonseca usually complains about his brutal work schedule. But he's not complaining now, because his early morning routine just may help prove he is innocent of a vicious armed robbery. Like clockwork, he drives a regular route delivering bread out of a warehouse in Sunset Park, Brooklyn. He and co-worker John Gannon trade cell phone calls to wake each other up.

John: "Every day."
Eyewitness News Reporter Sarah Wallace: "You call him?"
John: "Or he calls me to wake me up or for me to pick him up."

The two say December 3 was an average workday.

"I got to his house, it was about 3 o'clock, 3:05, something like that," Gannon said. "And I waited for him outside. He came outside, we went to work."

Wallace: "So that morning where were you?"
Fonseca: "I was at work loading up my truck and then heading out to Queens to make my deliveries."

At the time that Fonseca says he was working, detectives say he was actually working over a local businessman several miles away in the Homecrest section of Brooklyn, pistol whipping the victim and robbing him at gunpoint. The victim, Charles Regulbuto, picked Fonseca out of a lineup after seeing a photo array, but now says he wouldn't have chosen him had he seen the suspects standing up.

Fonseca, who'd previously been arrested for a misdemeanor, is unusually tall. Fonseca's attorney also believes the photo array was skewed. Eyewitness News obtained a copy of Anthony's photo, and it stands out, as it's the only one with a dark background. "They cooked the lineup," attorney George Farkas said. "Except it's the wrong guy and he's looking at 25 years if he goes down."

Wallace: "Did any police officers ever come ask you where Anthony was?"
John: "I have never been contacted, contacted by any police officer or detective."
Wallace: "No cops or detectives have ever come talk to you?"
John: "Never."
Wallace: "How do you feel about that?"
John: "I believe it's an injustice."

And there's something else - technology.

"When he's making the calls at 2:36 in the morning to wake up and go to work, his cell is registering on these cell towers near his house," attorney Michael Farkas said.

Fonseca's attorneys subpoened all incoming and outgoing calls to Fonseca's cell phone in the days around that brutal attack he's accused of committing.

"There's no possible way he could be at this robbery location while he's making these phone calls from his house, then at the bakery and along his route into Queens," Michael Farkas said.

"With the GPS on my phone, it can show where I was," Fonseca said. "I'm happy that this didn't occur, you know, 15 years ago."

The Brooklyn District Attorney's office is now reviewing all of the evidence in this case, including the cell phone call records. Fonseca's next court date is May 5.

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