The video looked clear.
A man walked toward Duo Tapas Bar & Lounge in Yonkers, a gun in his hand. As he approached the front door, the customers dispersed as gunfire rang out. He backed down. The bus driver, Antonio Antoine Fils, was dying in the hallway. The guard was also shot.
The man who appeared in the video, Jacob McGugin, returned to his car, put the gun inside it, and remained at the scene where the police took him to the headquarters for questioning. He was arrested that day, February 6, 2022, and the following month was charged with second-degree murder, attempted second-degree murder, first-degree assault, and second-degree criminal possession of a weapon.
But the murder case unraveled as a result of the willingness of defense attorneys and prosecutors to take a second look at what appeared to police and the victim’s relatives as an open-and-shut case.
The video did not show the shooting. Or McGugin raises his gun. A review of other forensic evidence revealed that the location where McGuinn stopped outside the bar was not consistent with the bullet path and it was unlikely that the gunshot residue on the victim could have come from a gun far from where McGuinn was standing.
McGugin, 31, of Peekskill, was allowed to plead guilty this summer only to the gun charge, and on Monday he received the agreed-upon sentence of eight years in state prison. This was a far cry from the minimum of 15 years to life he would have faced if convicted of murder.
However, Antoine Fels’ sister, Melissa Roman, criticized the defendant for his actions that night and how she left her family and friends suffering “so much pain, heartache, sadness and loss.”
She said McGugin would never be the man her brother was, always uplifting people, “a breath of fresh air” and “the sweetest, purest soul I’ve ever met.”
“Antonio had no hatred in his heart,” she told acting Superior Court Judge James McCarty. “He loved everyone and everyone loved him. I also used to say to him, ‘You’re so friendly, brother.’ That’s just what he was. He brought joy and positivity. He was fun to be around.”
Roman, a mother herself, said it was difficult to see their mother continuing to grieve her youngest son.
“It tore a piece out of her heart and soul,” Roman said. “While you sleep and eat and breathe fresh air and talk to your mother, my mother does not understand. She can visit a stone that cannot answer her.”
“God will have a special place for you when the time comes. This is called hell,” she told McGuinn, punctuating her remarks by calling him an expletive.
Assistant District Attorney Jonathan Strongin said the investigation began the morning of the murder and never stopped. As prosecutors prepared for a murder trial, he said, they focused on four areas of evidence: videos, gunshot residue, distances and ballistics, meeting with experts in all fields and working with the county forensic lab.
“The District Attorney’s Office recognizes that this action is traumatic for the victim’s family and did not provide the closure they may have been seeking,” Strongin said. “However, based on all the evidence, it was and remains our office’s position that with respect to the first three counts in the indictment, we will not be able to meet the burden of proving the defendant’s guilt beyond a reasonable doubt.”
It was Joshua Martin, McGugin’s attorney, who moved most of the scrutiny, as he looked at crime scene evidence turned over to him last year and did not believe his client was the shooter.
It was determined — based on enhanced video showing a crack in the sidewalk near where McGugin was standing — that he was about 12 feet from the bar’s front door, Martin said. This was important because tests of the 9mm Taurus semi-automatic recovered from McGougain’s car found that gunshot residue would not have traveled more than six feet.
“I commend the District Attorney’s Office for its willingness to listen and consider it and use science, not opinion, and get to where the case needs to be,” Martin said. “This was exactly what needed to happen to get the right result.”
In 2002, while working as a prosecutor in the Queens District Attorney’s Office, he reviewed a 1994 murder conviction that had been overturned after new evidence was discovered. This experience has influenced his work ever since.
“There’s nothing more stressful in this business than having a client who you believe is innocent of something,” he said. “I never thought my leg was good enough to do that.”
This article originally appeared in the Rockland/Westchester Journal News: McGowen was sentenced on a gun charge after a murder charge failed
