Brooklyn shooter takes second chance on trial for nurse death

Overturned conviction brings round two of trial

December 5, 2017 By Paul Frangipane Brooklyn Daily Eagle

Darius Dubarry is undergoing his second Brooklyn Supreme Court trial on murder charges for the killing of a Brooklyn nurse in a Crown Heights shootout. Eagle file photo by Rob Abruzzese

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A Brooklyn man is trying his hand at a second self-defense argument after his first Brooklyn Supreme Court trial that pinned him with the shooting death of an innocent nurse was overturned.

“Darius Dubarry on Dec. 15, 2007, did not get up and say, ‘I’m gonna shoot up Eastern Parkway,’” defense attorney Lawrence Wright told jurors Tuesday. “What Darius did that evening was self-defense.”

Brooklyn prosecutors begged to differ.

Dubarry, 37, was sentenced to 20 years to life in prison in 2009 for the Crown Heights shootout that found Carol Simon between and left her to bleed out with a bullet to the gut. But a Court of Appeals judge found in 2015 that he was wrongfully convicted of intentional murder and depraved indifference murder, saying the charges were “mutually exclusive,” according to a Daily News report.

Judge Jenny Rivera also argued Dubarry’s rights were violated when the Brooklyn court allowed jurors to hear grand jury testimony from a threatened witness who was afraid to speak in open court.

Nearly 10 years after the shooting, Assistant District Attorney Olatokunbo Olaniyan has the chance to sway a jury toward a second conviction.

In 2007, a 9-year-old boy was waiting in the car for his mother outside their Eastern Parkway apartment when shots rang out, prosecutors said.

“He waited, he waited, but his mom Carol Simon, she would never return,” Olaniyan told jurors as she slowly paced in front of them. “The defendant and the man he was shooting at … caused one fatal bullet to take Carol Simon’s life.”

Simon was pronounced dead the same day at Kings County Hospital.

Dubarry, an alleged member of the Black Israelites, became a target of the Folk Nation street gang after fights between the groups ignited. When Humberto Benjamin allegedly came to 390 Eastern Parkway looking for the man who stabbed one of his alleged fellow associates, he found Dubarry, Olaniyan said.

While shots filled the air when the two met in the street, Olaniyan alleged Dubarry fired the shot that killed Simon.

“I’m not talking about once, I’m not talking about twice, I’m not talking about three, four, five times even. He fired 10 separate times at his target,” she told jurors as Dubarry watched with his hands wrapped around his face.

Dubarry’s attorney argued that nearby surveillance footage only showed one side of the story, and Dubarry was justified in defending himself after Benjamin allegedly fired first.

Dubarry was arrested on Dec. 23, 2007 in a hotel room in Augusta, Georgia, living under a different name while his brother held his identification card, prosecutors said.

Simon’s brother, Alwin Simon, 52, testified after opening arguments to recollect the day he received a call that his sister had been shot. She was already dead when he arrived at the hospital.

The defense offered condolences but had no questions for the brother.