At about 11 a.m. on April 1, 2005, two men robbed 70-year-old Gerald Ross in the elevator of his apartment building in the Crown Heights neighborhood of Brooklyn, New York.
Ross had just returned from the post office, and the men stole about $500 in cash and two money orders, one for $542.77, and the other for $9.48.
Detective William Van Pelt of the New York Police Department’s 71st Precinct led the investigation. Ross told the police that one of the men grabbed him from behind and placed him in a chokehold, while the other rifled through his pockets and stole the cash and the money orders, which were for his rent and his life insurance policy.
Ross initially described the two robbers as Black men about 40 years old, although he would later say they were between 30 and 40 years old. He said that one man was 5 feet, 7 inches tall and 180 pounds. The other was 6 feet tall and 190 pounds. Ross did not indicate which of those descriptions fit the man who grabbed him or the man who robbed him.
On April 3, Van Pelt spoke to a postal inspector and placed an alert on the stolen money orders. The alert, known as a rocket, would notify the post office if the money order was used.
On May 10, Ross contacted Van Pelt and said he had received two letters from the post office that indicated both money orders had been cashed. The larger one had been cashed at Big Daddy Appliance in Brooklyn.
Van Pelt went to Big Daddy and talked with John Vernet, the store’s assistant manager. Vernet said that on April 1, a man used the money order to buy a stove. The man showed a driver’s license with the name Kenneth Windley and an address in the borough of Queens, where the stove was delivered to a woman named Francina Patterson.
Windley was 40 years old and had an arrest record that included a 1988 conviction for second-degree robbery, a 1992 conviction for weapons possession, and a 2000 conviction for drug possession. Patterson was his mother.
Van Pelt created a photo array and brought it to Ross’s apartment. Ross selected Windley and said he recognized him from the robbery.
On June 7, 2005, officers brought Windley in for a live lineup. Ross viewed the lineup at the precinct house and again selected Windley, who was in the fourth seat, as one of the men who robbed him. Police arrested Windley and charged him with two counts of robbery and two counts of larceny. Windley obtained a bond of $15,000 and was released from custody on June 10.
When defendants testify, the state can, within limits, question them about previous convictions. Prior to trial, Windley’s attorney, Lawrence Wright, moved to restrict questioning in this area to the 2000 drug-possession conviction, arguing that the two previous convictions were too remote. The judge granted the motion but said that the restriction would be voided if Wright misled the jury about his client’s criminal record.
On February 26, 2007, the day before the trial began in Kings County Supreme Court, Wright asked to file an alibi defense, telling the court that Windley’s former girlfriend, Carmen Gonzalez, could testify that she was with him at the time of the robbery. Gonzalez had been added to Windley’s witness list a few days earlier. The state opposed the alibi defense, arguing that Windley had failed to give proper notice.
Justice Charles Heffernan Jr. said he would consider Windley’s alibi defense if Gonzalez appeared for a hearing the next day. She did not show up, and Wright said he was not going to pursue an alibi defense. He planned to rely on his argument that this was a case of mistaken identity.
Ross testified about the robbery, and how the men attacked him in the elevator. He said he had never seen either man before. Ross said the man who placed him in a chokehold was about 5 feet 6 inches tall, and his face was freckled. He could not recall his weight, his clothing, or whether he had any facial hair.
Ross said the man who went through his pockets was in his 30s or 40s. He said he had “dark skin. Not too dark,” and was a little bit taller than him, around 5 feet 8 inches tall. (Ross was 5 feet 7 inches tall. Windley was 5 feet 11 inches tall.) Ross said this man tried to cover his face, but Ross was able to catch glimpses during the struggle. He identified Windley as this man.
Van Pelt testified about the investigation and how he conducted the photo array and lineup. He said that Windley chose the seat he used for the lineup. He also said that he hadn’t told Ross an arrest had been made when Ross came to the police station to view the lineup. (Ross testified that he did know an arrest had been made.)
Vernet testified about the purchase of the stove on April 1, 2025. He said customers needed to show identification when using a money order, and he identified Windley as the person who bought the stove that day. He said he did not recall the exact time of the purchase, “but it was around midday.”
During cross-examination, Vernet testified that Windley came into the store with two other men. He said he did not remember who handed him the money order, but that one of the men said that the money order had been purchased for use as a car payment, but it was instead going to be used to buy a stove for Windley’s mother. (In a pre-trial statement, Vernet said the man who handed him the money order had a problem with one of his eyes.)
The store’s receipt, which was not time-stamped, included a telephone number and the address for Patterson. The stove cost $430, and delivery and installation ran another $75. The receipt also listed a cordless Coby CD player as part of the sale.
Windley testified that he had been convicted of a non-violent felony in August 2000 and that he occasionally worked for his stepfather’s security company. He said that his mother had first called him on March 31 to tell him that her stove was “acting up.” He said he remembered April 1, because he and Gonzalez had gone out the night before to celebrate her birthday, which was on April 4.
Gonzalez lived in the Howard Houses public-housing community. Windley said he left her apartment around noon to go to Big Daddy and ran into two men, whom he had seen selling clothes and other items in the neighborhood. He said the men asked if another man, named either “Country” or “Cowboy,” was around. Windley said he told the men he had not seen him, but that he was off to buy a stove.
Windley testified that one of the men, referred to in court documents as “Suspect 2” was about 6 feet tall and had a “slow eye,” that was “almost dead or something.”
Windley testified that Suspect 2 told him about the money order and said that Windley could use it at the store. He said Suspect 2 told him that he had bought the money order either for car insurance or a car payment but couldn’t return it because he lacked sufficient identification.
Windley testified he never asked either man whether the money order was stolen. He said his only concern was whether it was a valid form of payment. Windley said he and the two men walked the few blocks to the appliance store, where he used the money order to pay for the stove, giving Vernet his driver’s license, a telephone number, and his mother’s address. He said he paid Suspect 2 $380 or $400 for the money order.
Windley testified that he first learned the money order had been stolen when Van Pelt placed him in the lineup. He said that he had not chosen his seat position, as Van Pelt testified; the fourth seat was the only one available.
Windley testified that after his arrest, he did not see Suspect 1 or Suspect 2. He said he only knew them by their nicknames. He said that prior to trial, he had given prosecutors a name for Suspect 2, based on information he had received from another person. It turned out that name was wrong, he said. Windley said he tried to locate the men. Wright sought to ask Windley about his efforts, but Justice Heffernan sustained the state’s objection to this line of questioning.
Windley testified he did not need to use the money order to buy the stove. He said he knew Suspect 1 and Suspect 2 were hustlers, although not his friends, and he was just trying to help them out.
During his closing argument, Wright said that Ross mistakenly identified Windley. He said that although Van Pelt had met with Ross numerous times, he had failed to get a more thorough description of the robbers. He also said that Van Pelt had “plant[ed] the seed in Ross’s mind to identify [the] defendant.”
He said that the police and prosecutors had pushed Ross to identify Windley. “[Ross] was being led and was led by Detective Van Pelt and officers and lawyers from the Brooklyn District Attorney’s Office,” he said.
Wright said that Windley’s 2000 conviction had no bearing on his truthfulness or his likelihood of committing the robbery. In this instance, he was only guilty of poor judgment, and maybe stupidity, Wright said.
After Wright’s summation, Justice Heffernan excused the jury, then began sharply questioning Wright about his closing argument, where he had questioned the state’s integrity. He asked Wright whether he had any proof that the state had suborned perjury or influenced Ross’s testimony. Wright said he didn’t.
Justice Heffernan said Wright’s allegations were “irresponsible” and “reprehensible.” He also said that Wright had misled the jury when he referred to Windley’s single conviction, as it violated his earlier ruling about references to Windley’s criminal record.
When the jury returned, Justice Heffernan read two stipulations agreed to by Wright and prosecutors. First, he said there was no basis in the record that the state had interfered with Ross’s testimony. Second, he said, “Counsel was factually incorrect when he stated that the defendant had a single nonviolent conviction. The defendant has three felony convictions—one in 1988, one in 1992, and one in 2000.”
The state said in its closing argument that Ross was able to get a good look at the robber’s face. A prosecutor also said that Windley knew how money orders worked because Gonzalez worked at the post office. The prosecutor said that Windley thought he would not get caught because the money order he used at the store had a receipt and a serial number still attached, which made it harder to trace. (Because Ross was such a frequent customer at the post office, a clerk was able to find the serial number without the receipt.)
The jury convicted Windley of second-degree robbery on March 1, 2007. Because of Windley’s previous convictions, he received a sentence of 20 years to life in prison.
Windley appealed, arguing that Justice Heffernan’s rulings had harmed his right to present a complete defense and that he had been prejudiced by the stipulations read during the closing arguments. He also said that Wright had provided ineffective assistance, based on his closing argument.
The Supreme Court’s Appellate Division, Second Department, affirmed the conviction on February 23, 2010. The court said that any of the alleged errors by Justice Heffernan or Wright were harmless, based on the “overwhelming” evidence of Windley’s guilt.
Windley then turned to the federal courts, filing a pro se petition for a writ of habeas corpus in U.S. District Court for the Eastern District of New York on February 10, 2012. The petition repeated the claims made in his state appeal.
While the petition was pending, Windley wrote to Judge Rosalynn Mauskopf, asking her to hold his petition in abeyance. He said he had learned the names of Suspect 1 and Suspect 2 and needed time for an investigator to locate them and obtain affidavits.
On August 16, 2013, Judge Mauskopf denied the request and denied the habeas petition.
In 2024, Windley moved to set aside his sentence, challenging his classification as a persistent felon. A judge rejected that claim on September 25, 2025.
In 2023, Windley asked the Conviction Review Unit (CRU) in the Kings County District Attorney’s Office to review his case. In his application, Windley said he was innocent, and he provided a written statement from Suspect 1 and an affidavit from Suspect 2 that said they had robbed Ross and lied to Windley about how they obtained the money order.
As part of the review, members of the CRU team interviewed Windley. He said that at the time of the crime, he was dealing heroin, storing the drugs in apartments in the Howard Houses. Windley said he was a wholesaler, not a street-level dealer, and “Cowboy” sold Windley’s heroin on consignment.
Windley said that on the day that Ross was robbed, he and Gonzalez had returned to her apartment at 5 a.m. from their night on the town. He said his mother called about the stove at about 10 or 10:30 a.m., and that he left Gonzalez’s apartment at around noon.
Windley said he saw Suspect 1 and Suspect 2 outside the apartment building. They asked for Cowboy, whom they knew sold heroin for Windley, and Windley said he told them that he was off to buy a stove for his mother. Suspect 2 then “flashed out” the money order.
Windley said he had enough of his own money to buy “10 stoves,” that he didn’t even save $100 using the money order, and he bought the item from Suspect 1 and Suspect 2 to help them out.
Windley told the CRU that he tried to find the real names of Suspect 1 and Suspect 2 after his arrest. He said they did not live in his neighborhood. He said he ran into Suspect 2’s girlfriend after his arrest, and she eventually provided him with names of the two men. Windley said he gave that information to prosecutors but later learned the girlfriend had given him a false name for Suspect 2.
Windley said he began a more thorough search for Suspect 1 and Suspect 2 after he was incarcerated, working with his family, private investigators, and a friend named Donna Carter.
Suspect 2’s affidavit, dated April 12, 2021, said that he and Suspect 1 had robbed Ross and then sold the money order to Windley, whom he recognized because he occasionally sold him clothes and shot dice with him. Windley, he said, always had money, which made him a good candidate for a deal. Suspect 2 said Windley was unaware of how he and Suspect 1 obtained the money order.
Suspect 1’s statement, dated May 27, 2021, said that he and Suspect 2 robbed a man, then ran into Windley outside the Howard Houses. Windley asked the men if the money orders were stolen, and the two men said “no.” Suspect 1 said he was “sorry for what happened to [Windley] because he didn’t know what he was getting into.”
Suspect 1 and Suspect 2 had extensive criminal records, including seven convictions between them for robberies in Brooklyn between April 4, 2005, and February 1, 2006. The robberies occurred near Ross’s apartment, and each involved an elderly man who had been targeted after leaving a bank or a check-cashing business. The CRU noted that police had started an investigation in early May 2005 about a string of these robberies, which led to Suspect 2’s arrest on May 4, 2005. The Ross robbery hadn’t been included in this group, because the police report said that the robbery occurred in an elevator but made no mention of Ross being followed home. When Suspect 2 was arrested, police found a Coby CD player in his vehicle.
As part of the review, the CRU team interviewed Wright, the trial attorney. He said his private investigator looked hard for Suspect 1 but could not locate him. Wright also said he believed that Windley was innocent. He said that this type of crime was not consistent with Windley’s other criminal activity and also unnecessary, because Windley was making plenty of money selling heroin.
The investigator Wright hired told the CRU that he also believed Windley was innocent, in part because Windley was too smart to attach his name to a stolen money order.
The CRU was unable to interview Gonzalez.
On March 16, 2026, the CRU released a report recommending that Windley’s conviction be vacated. It said that Windley had been convicted of robbery based on Ross’s identification and a jury instruction by Justice Heffernan that allowed the jury to infer that Windley’s possession of the stolen money order inculpated him in the robbery.
“What the jury did not know was that Suspect 1 and Suspect 2 were not fictitious,” the report said, noting that Windley was prevented from testifying about the steps he took to try to identify the men. “Significantly, the Suspects committed numerous robberies, with the same modus operandi as Ross’s robbery, around the time of Ross’s robbery, and in or near the same vicinity.”
The report said Suspect 2 had a bad eye, matching descriptions given by Vernet and Windley. It also said that both suspects had given plausible and consistent statements about how they ran into Windley after committing the robbery. Although Windley said other people sold his heroin, he had also been arrested for selling heroin in front of the Howard Houses in 2004. “It is reasonable to credit the Suspects’ accounts that they drove to the Howard Housing to buy heroin from defendant after committing the robbery,” the report said.
The report said that Suspect 1 and Suspect 2 fit the descriptions provided by Ross in the initial complaint. It noted that eyewitness identification can be highly unreliable and made worse by stressful situations, such as being in a chokehold during a robbery. Neither Suspect 1 nor Suspect 2 could be prosecuted for this robbery due to the statute of limitations.
At a hearing on March 16, 2026, Justice Matthew D’Emic granted a motion to vacate Windley’s conviction and to dismiss his case.
Outside the courthouse, Windley told the Associated Press, “It cost me 20 years, but they said they corrected it now. So that’s all that matters.”
Eric Gonzalez, the Kings County District Attorney, said that he privately apologized to Windley. “This case is really a cautionary tale of how things can seem one way but, without careful analysis, not be what it purports to be,” he said.
– Ken Otterbourg
Posting Date: 03-25-2026
