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William Upshaw: Murdered

Police and Prosecutorial malice

This is a case of a coerced confession: William Upshaw was first identified as a "person of interest" that police wanted to question because he had been seen in the area. When he presented himself to police in order to clear himself, he was questioned for 12 hours and then charged. The media accepted police version of events without question. Upshaw, a young man with no criminal record, was held for over a year awaiting a trial which the prosecutors' knew was based on unreliable evidence. Upshaw, on the other hand had a strong alibi and proved credible enough in court to convince a jury of his innocence.

To the cops and prosecutors, this case represents just a loss on the "win some lose some collect a pay cheque either way" tally. To Upshaw, it is a critical year stolen from his life.

Peekskill man indicted in killing

William Upshaw

Cops stand outside deli where shooting occurred Staurday morning; (inset) Peekskill Police released name and photo of suspect.

A Westchester County grand jury has indicted a 20-year-old Peekskill man whom police charged with murder in the July 27 killing of a Yonkers resident.

A felony hearing for Jason Tinsley of 696 Highland Ave. was scheduled to take place yesterday morning at Peekskill City Court.

Instead, the Westchester County District Attorney's Office notified the court that a grand jury has indicted Tinsley in the killing of William "Coof" Upshaw, a 19-year-old former Peekskill resident whose last known address was Hawthorne Avenue in Yonkers. Details of the sealed indictment were not available.

"We have filed with the court a written certification that an indictment has been voted," District Attorney Jeanine Pirro said yesterday.

Peekskill police say Tinsley shot and killed Upshaw in the early morning hours of July 27 on Hadden Street near Lepore Park. Upshaw was shot once in the chest and died at the Hudson Valley Hospital Center.

Police arrested Tinsley within three hours of the shooting and charged him with second-degree murder and third-degree criminal possession of a weapon, felonies. Police have yet to recover the weapon.

Tinsley and Upshaw, who were friends growing up in Peekskill, were both involved in a June trial at which Upshaw was acquitted in the May 2002 slaying of 40-year-old Ecuadoran native German Marquinez. Tinsley and one other man, Marcus Shelton, 23, of Peekskill, were convicted of misdemeanor assault in that case for assaulting Marquinez before he was fatally shot in an argument over a winning $40 lottery ticket.

At trial, Shelton testified that it was Tinsley, not Upshaw, who fired the shots that killed Marquinez. But Upshaw insisted that he was at his girlfriend's home in the Bronx when the shooting took place. Police have yet to say whether they believe Upshaw's death, allegedly at the hands of Tinsley, was related to the recent trial.

But Tinsley's mother said the trial drove a wedge between her son and Upshaw, who were once good friends. Doris Tinsley told The Journal News that her family had notified police July 24 that Upshaw was in town and looking for her son. Police confirmed that they received a complaint from the Tinsley family regarding Upshaw, but could not act on it because the alleged incident took place outside Peekskill.

At a hearing last week in Peekskill Court, Tinsley's court-appointed lawyer requested the felony hearing that was to take place yesterday morning. The attorney, Richard Ferrante of White Plains, did not return a call seeking comment yesterday.

Peekskill man not guilty in lottery slaying

WHITE PLAINS - A 19-year-old Peekskill man was acquitted yesterday on all charges in the fatal shooting of an Ecuadorean immigrant during a fight over a winning lottery ticket.

The jury had the case for about three hours before finding William Upshaw not guilty of second-degree murder, first-degree manslaughter and second-degree criminal possession of a weapon. He was scheduled to be released from the Westchester County jail, where he had been held since his extradition from Alabama in September.

Upshaw was accused of killing German Marquinez, 40, a one-time boxer who did masonry and landscaping work as a day laborer in the Peekskill area. Marquinez was shot three times outside the M&M Market early on May 17, 2002, after trying to cash the $40 lottery ticket.

The jury heard numerous accounts of the fight. One witness identified Upshaw as the shooter, but a fight participant, Marcus Shelton, claimed that the man who started the fight, Jason Tinsley, actually shot Marquinez. Upshaw testified that he had left the area about three hours earlier, and he and his girlfriend testified that he was at her Bronx apartment when the shooting occurred.

"The testimony in this case raised more questions than it provided answers," defense lawyer Barry Warhit said. "It was obvious the jury was left guessing what happened."

Marquinez had gone to M&M on Main Street about 3 a.m. to cash his lottery ticket. He expected to get $40, but the clerk told him to return later in the morning when the lottery machine would be operating. At that point, a man in the deli, Tinsley, grabbed the ticket from Marquinez. A fight ensued as Marquinez grabbed it back and punched Tinsley, and the fight continued outside, where Tinsley and Shelton began punching and kicking Marquinez. Someone then walked up to Marquinez with a gun and fired at least three shots at him, killing him.

Detectives soon identified Upshaw as a suspect but could not find him.

Upshaw turned himself in to authorities and was arrested in Alabama five days later after he went there to visit his family. Authorities contended he hid in Peekskill and the Bronx before fleeing there, but Upshaw insisted that it had been a planned trip and that he knew nothing of the killing until he got there.

Shelton and Tinsley were charged with felony assault in the case, but a jury convicted Shelton only of misdemeanor assault. Tinsley then pleaded guilty to misdemeanor assault and is awaiting sentencing. He testified that he saw Upshaw holding a gun during the fight.

Assistant District Attorney John O'Rourke called witnesses who testified that Shelton had identified Upshaw as the killer hours after the shooting and to a probation officer last month, and that Upshaw's girlfriend did not seem certain whether he arrived at her apartment at 1 a.m. the morning of the shooting or the following morning.

Shelton insisted that he never told detectives or the probation officer anything about Upshaw and hadn't even seen him at the scene during or after the fight.

Upshaw could not be reached for comment last night. Nor could his mother and grandmother, who had traveled from Decatur, Ala., to attend the two-week trial. Warhit said his client, who had faced up to 25 years to life in prison if convicted, was relieved by the verdict.

The jury began deliberating about 11 a.m. after getting legal instructions from Westchester County Judge Lester Adler. About an hour later the jurors asked to rehear the testimony of two witnesses and see letters that Tinsley had sent to an investigator and his aunt.

One of the witnesses, Valerina Johnson, testified that she saw Upshaw point what appeared to be a gun at Marquinez and then heard several shots - but in previous accounts she testified that several people blocked her view of what happened.

Marquinez was known to send money back to his wife and children in Ecuador and had spoken of his desire to bring them to the United States. His wife's brother and sister live in Peekskill. Neither could be reached for comment last night.

This is with regard to a case in Westchester County now. There are so many holes in the prosecution but it doesn't seem to matter. What am I supposed to do? This is a copy of an e-mail I wrote to someone on a PI Group that submitted an excerpt from your website for our consideration:

My case that I have written about on the PI Group is dealing with this. I have read and studied the Reid Technique and thought it was good but I understand what you are saying. My client was 18 years old. He was wanted in NY, advertised as armed and dangerous and a reward was out although he was only wanted for questioning. The client came to AL for Mothers' Day last year and was here when this hit the news in NY. The family called me. I went and picked up the client, notified the Alabama Bureau of Investigations that I was bringing him in and two detectives from NY flew down to meet us. They put him through two hours of pure hell (I was sitting outside the room). At 2 a.m. they arrested and charged him with murder. One of the detectives from NY said it was because he would not cooperate. I asked, "How is that?" The detective said because my client would not tell who committed the murder, he was going down for it. I got an attorney to block extradition to NY, hoping in the meantime to get representation for him which I did not succeed in doing. Midnight of the last night they could hold him in AL, they came from NY, got him, took him back to NY and put him in a cell with two other "accomplices" (one of whom is thought to be the one who did it). Allegedly, they have pled to lesser sentences to testify against my client! For six months my client has been in the same cell with them. The trial started this past week. The prosecutor called me and questioned me. I called the defense attorney appointed to defend my client and he said it was my fault the client had been charged. I asked him what he was talking about and he said the LE had all signed statements saying I was bringing the client in for murder instead of saying I was bringing him in because he was innocent and since he was just wanted for questioning, he wanted to come in...

I never said he confessed to the murder - quite the opposite. The NY detectives never even talked to me about me bringing him in...anyway, now, I am to be there in NY the first week in June to testify on behalf of the defense. I was SO MAD. The defense attorney said my statement was behind everything. He is BSing me. He said if the 18 year old boy went down for the murder that the attorney did not believe he committed, I could consider myself partially responsible.

What the h--- is he talking about - I wasn't even there. I only met the boy when I drove to another city in AL and picked him up - I brought him to the Huntsville ABI because I trusted them - was I ever wrong!

They still have racial issues in this area and I did not want to turn him in in his hometown in AL.

The ABI guy is the one who talked to the detectives. So, HE made the statement that I said that? I can't believe they are turning this around like they are. My client's family would be destroyed if they heard what the defense attorney is saying I said. No one would have faith in me or trust me. My client didn't get to see an attorney for the entire time he was in AL because he was a "fugitive" and did not have any rights in Alabama.

The family has begged me to come there next week. The trial is supposed to last four weeks. Jury selection took three days. The defense attorney said if he loses he is looking at 25 years to life. He is trying to put the burden of turning the trial around on me. He is trying to make me feel responsible for the future of this 18 year old guy who in all probability is not guilty and I certainly don't believe he is.

When the detectives arrested him, they let him think he was being charged with capital murder. The defense attorney said it wasn't capital murder but I stood right there that night at 2 a.m. and heard them myself, heard the way my client interpreted the charges and they didn't dispute that. They had him scared to death. He had or has no past record, not been in jail, to my knowledge never been in trouble.

The client and family are Afro-American. I am white. They have put all their faith and trust in me.

What are they going to try to do to me on the stand? I don't even know now who the good guys are, if there are any. I am disgusted.

Thanks for the insight - it certainly tells the story of what has happened so far. They have nearly gotten my client to plea bargain to a crime he didn't commit and the only thing preventing him from doing so is his grandmother telling him to stick to the truth and not confess to what he did not do. How's he going to feel if he thinks I turned on him? Then again, we were together the entire day and night and he heard anything I said so he knows I never said he confessed.

It's enough to make me want to quit the business...

Jurors hear summations in Peekskill murder case

A lack of physical evidence in the murder case against Peekskill resident William Upshaw means that jurors will have to decide on the credibility of several witnesses who testified they saw Upshaw at the spot where a 40-year-old man was killed last year, attorneys in the case said yesterday.

In his closing argument in Westchester County Court, defense attorney Barry Warhit said several people who testified against his 19-year-old client were either out to protect themselves or had such questionable lifestyles as to render their testimony incredible.

But Assistant District Attorney John O'Rourke, in his summation, said while some of those people might not be saints, they were the only witnesses available to authorities. O'Rourke said the testimony of several people called by the prosecution consistently placed Upshaw at the downtown Peekskill intersection when German Marquinez, a day laborer from Ecuador, was shot and killed in the early hours of May 17, 2002.

The 12-member jury is scheduled to begin deliberations Monday after getting instructions from Judge Lester Adler.

Upshaw, who took the stand in his own defense and denied being at Main and Division streets at the time Marquinez was killed, faces charges of second-degree murder and criminal possession of a weapon. He has been held at the county jail since his arrest last year.

Warhit, in professing his client's innocence, noted that Upshaw had no criminal record before his arrest. Warhit suggested that another man involved in a dispute with Marquinez, Jason Tinsley, was responsible for his death.

Marquinez, a father of three who was a prize fighter in Ecuador, came to Peekskill in 1999 to earn money doing masonry and landscaping work. He would send money home to his wife and three children in Cuenca and had hoped to save enough to one day bring them here.

Around 3 a.m. on March 17, 2002, Marquinez went to the M&M Market at Main and Division streets to cash a winning $40 lottery ticket, police said. After a cashier told Marquinez the lottery machine was down, someone tried to steal the ticket. The fight that ensued carried out onto the street, where Marquinez was shot three times.

Two men who police said assaulted Marquinez before he was shot - Marcus Shelton and Tinsley - were convicted in April of misdemeanor assault but acquitted of more serious felony assault charges.

Upshaw, whom police identified as the shooter, went to Alabama after the shooting - a trip he said was planned in advance - but surrendered to authorities there in what Warhit described as an act designed to prove his innocence and protect his good name.

Warhit questioned the credibility of several prosecution witnesses, noting that some had admitted to selling or using drugs, while another had struck a deal with prosecutors to testify in exchange for reduced or dismissed charges. Taken as a whole, the testimony from prosecution witnesses should put doubt in the minds of jurors, Warhit said.

"If you're not sure, at the end of the day, what happened here, these doubts belong to that young man," Warhit said, pointing to Upshaw.

O'Rourke said Upshaw's decision to surrender to authorities had nothing to do with protecting his reputation. O'Rourke said Upshaw surrendered because he was tired of running.

"This was a surrender, yes," O'Rourke said. "But it was also the end of his running."

O'Rourke said several people who had known Upshaw for years placed him at the shooting scene, including one woman who testified she saw Upshaw's arm pointing at Marquinez as gunshots rang out. Upshaw testified he was with his girlfriend in the Bronx at the time of the shooting.

O'Rourke said that if jurors don't believe Upshaw's testimony, "that is powerful evidence of the defendant's guilt."

Witness says murder defendant didn't shoot immigrant

A Peekskill man who helped beat up an Ecuadorean immigrant moments before the victim was fatally shot testified yesterday that the man on trial for murder, William Upshaw, was not the shooter.

Instead, Marcus Shelton said his friend and co-defendant in the beating, Jason Tinsley, was the man who shot German Marquinez outside the M & M Market on Main Street in Peekskill on May 17, 2002. Shelton said he had punched Marquinez but was starting to walk away when he turned around and saw Tinsley continue to kick the victim.

"(Tinsley) pulled out a gun and shot him," said Shelton, who added that he never saw Upshaw outside the deli that night.

Shelton was convicted of misdemeanor assault in the case and is in the Westchester County jail awaiting sentencing. On further questioning by defense lawyer Barry Warhit, he said Tinsley had urged him not to testify. "He told me to keep my mouth shut. He said, 'Let William hold the weight for it,' " Shelton said of Tinsley.

Upshaw is charged with second-degree murder in Marquinez's death. He was arrested five days after the shooting when he turned himself in to law-enforcement authorities in Alabama, where his mother and grandmother live, after learning he was wanted by Peekskill police.

Another defense witness yesterday was Kiyanda Austin, Upshaw's 18-year-old girlfriend, who testified that Upshaw came to her home in the Bronx shortly after 1 on the morning of the shooting and spent the weekend with her before leaving for Alabama. Marquinez was killed about 3 a.m. after arguing with Tinsley and Shelton over a lottery ticket he had tried cashing and they allegedly wanted to steal.

When Peekskill detectives went to Alabama to question Upshaw, he told them he had been with his girlfriend. They notified their supervisor, Detective Sgt. Mark O'Buck, in New York, and he called Austin that night to verify it.

On cross-examination, Assistant District Attorney John O'Rourke confronted Austin with a transcript of her phone conversation with O'Buck, in which she is quoted as saying she was uncertain whether Upshaw had come to her apartment the morning of May 17, or the following morning. Austin reviewed the transcript but said she she was certain she never said that to O'Buck.

The sergeant is expected to be called as a rebuttal witness Friday.

Shelton and Tinsley were charged with felony assault in the beating that preceded the shooting.

Earlier this year, a jury convicted Shelton of the lesser charge of third-degree assault. Tinsley pleaded guilty to third-degree attempted assault, a misdemeanor.

Neither was charged in connection with Marquinez's death. Tinsley, who is also awaiting sentencing, testified last week that he saw Upshaw with a gun during the fight but did not see him fire it.

Shelton said yesterday that he never saw Upshaw there that night, and that he was standing three feet away when Tinsley fired four shots at Marquinez.

Tinsley could not be reached for comment yesterday. A lawyer representing him, Douglas Martino, said he had no comment on Shelton's testimony, but that Tinsley's account on the witness stand was consistent with his statements to police and when he pleaded guilty.

The prosecution maintains that Upshaw shot Marquinez and then hid out in Peekskill for a day or so before leaving the area.

O'Rourke questioned Shelton extensively about statements he purportedly gave a Peekskill detective several hours after the shooting, including saying Upshaw was the shooter.

Shelton yesterday denied that he ever discussed details of the case with the detective and did not implicate Upshaw. His comments were not in the form of a signed statement but were included in the detective's report on the case.

The trial before Westchester County Judge Lester Adler will resume this morning.

Witness: Peekskill murder suspect fired gun

A woman identified William Upshaw yesterday as the man who fatally shot a 40-year-old day laborer following a fight over the victim's lottery ticket outside a Peekskill delicatessen last year.

Valerina Johnson was among the first witnesses at Upshaw's trial in Westchester County Court. The 19-year-old defendant is charged with second-degree murder and criminal possession of a weapon in the May 17, 2002, slaying of German Marquinez. The victim had gone to the M&M Market at Main and Division streets to cash a $40 winning lottery ticket. When the cashier told him the machine was not working, someone tried to steal the ticket. A fight then spilled out into the street and Marquinez was shot three times.

Upshaw was identified as a suspect almost immediately and was arrested several days later in Alabama where he had gone to stay with relatives. His lawyer, Barry Warhit, told the jury yesterday that Upshaw would testify that he had been in front of the deli earlier but was with his girlfriend in the Bronx at the time of the shooting.

Assistant District Attorney John O'Rourke said that morning began lucky for Marquinez, but that his luck soon turned ugly when Upshaw - also known as "Koof" - shot him in an "unprovoked, brutal, senseless act of violence." He said Upshaw's statements to detectives that he was not there would be refuted by several witnesses.

Marquinez was a professional boxer in Ecuador who did masonry and landscaping work in the Peekskill area. He would send money to his wife and three children and hoped to eventually bring them to the United States.

Two men who were accused of beating up Marquinez before the shooting, Marcus Shelton and Jason Tinsley, were convicted last month of misdemeanor assault but acquitted of more serious felony assault charges. Johnson, 21, who testified at that trial as well, was getting some food, when she made her way to the deli after hearing the argument.

She said she saw Tinsley punch Marquinez in the face and Shelton repeatedly kick him. She said she did not see Upshaw enter the fight until just before the shots were fired. She said she saw the left side of Upshaw's face and his arm pointing at Marquinez as three or four gunshots rang out. She said she did not see a gun in his hand.

Warhit questioned Johnson extensively about discrepancies between her testimony yesterday and the account she gave at the previous trial. She said then that some of the people in the crowd had blocked her view of the fight and that Upshaw had his back to her when she heard the gunshots. Yesterday, she insisted she had no doubt that Upshaw was the shooter.

Peekskill shooting leaves one dead

Dispute over lottery ticket turns violent

A 40-year-old day laborer was killed early last Saturday morning on a Peekskill street corner after an argument over a $20 lottery ticket turned violent.

Police arrived at Main Street and North Division Street and found German Marquinez on the sidewalk suffering a single gunshot wound to the abdomen shortly after 3:30 a.m., said Peekskill Detective Sergeant Mark O'Buck.

O'Buck said several 911 calls reported arguments and shouting that were followed by the gunshot.

Marquinez was rushed to Hudson Valley Hospital Center where he was later pronounced dead.

Marquinez, no known address, is survived by his wife, Elvira Lourdes Ayabaca, and their three children, Mikaela, 6, Martin, 5, and Rosida, 4, all residing in Marquinez's homeland of Ecuador.

Police are searching for William K. Upshaw, 18, of Peekskill as a suspect in the shooting. He is considered armed and dangerous.

Police would not reveal how they learned that Upshaw might have been involved in the incident.

O'Buck said two Peekskill residents were arrested over the weekend on second-degree assault charges, a felony, in connection with an attack on Marquinez that proceeded the shooting.

Marcus Shelton, 23, of Division Street, and Jason Tinsley, 19, of Highland Avenue, are accused of participating in the assault against Marquinez before he was shot, O'Buck said.

Both men were arraigned Monday in City Court and are due back next Tuesday for further proceedings. They are being held at the Westchester County Jail in Valhalla. Shelton is being held on $25,000 bail and Tinsley is being held without bail.

"We don't have a lot of homicides in Peekskill," O' Buck said.

A thorough investigation is underway, he said.

Peekskill has averaged one homicide a year in recent years, said O'Buck. This marks the first murder of 2002.

According to David Algahiem, owner of the 24-hour M & M Market and Deli on Main Street and North Division Street, Marquinez entered the store after 3 a.m. trying to cash the lottery ticket.

Algahiem told Marquinez he would have to return later that morning to collect his winnings.

Algahiem explained that two men confronted Marquinez, apparently trying to rob him. An argument ensued, which later spilled onto the street.

"I heard the shots and called 911," Algahiem said.

Algahiem, who has owned the deli for six years, explained that Marquinez was a regular customer for at least a year and was simply a "nice guy."

"He always came in. A regular customer," Algahiem said.

Algahiem said he no longer feels safe operating his business around the clock.

"I was open 24 hours but now I close at 2, 3 a.m.," he said. "It's too crazy.

"I lost a lot of business and I feel unsafe in Peekskill now," Algahiem said, commenting that he has never seen violence to this extent before in the city.

As flyers were circulated, local teens, who refused to be identified, looked at Upshaw's picture in amazement saying, "No way, this is the guy that did this."

A reward of up to $5,000 for any information on the whereabouts of Upshaw can be forwarded to the Peekskill Police Department's Crime Stoppers at 1-800 898 TIPS.

Man shot to death in Peekskill

PEEKSKILL, NEW YORK - A man who was shot early yesterday after an apparent argument at Main and North Division streets died shortly after being brought to Hudson Valley Hospital Center, city police said.

Police had tentatively identified the victim by late yesterday afternoon, but declined to release his name because they had not yet notified his family. It was the city's first murder of this year.

Detective Sgt. Mark O'Buck said police received several 911 calls around 3:30 a.m. reporting a loud argument followed by shots fired at Main and North Division. When officers arrived, they found the victim lying in the roadway. O'Buck identified him as a black male. He was taken by ambulance to Hudson Valley Hospital Center in Cortlandt, where he was pronounced dead shortly after arrival, police said.

City police, working with officers from the Westchester County Department of Public Safety and investigators with the District Attorney's Office, then cordoned off Main Street between North Division Street and Nelson Avenue for about six hours while searching for evidence and interviewing witnesses.

Police recovered some evidence - they declined to say what it was - but had yet to find a weapon. O'Buck said it was too early to say what type of gun may have been used.

David Algahiem, owner of the 24-hour M & M Market and Deli on Main Street at North Division, said the man he believed was the victim came into his store before the shooting and tried to cash a winning lottery ticket. Algahiem said he told the man to return during the day because the lottery machine was shut down.

"I told him to come back in the morning, but then I didn't see him again," he said.

Algahiem said he then heard arguing outside and called 911. Before police arrived, Algahiem said he heard two or three shots. At that point, he ran into the back of the store, fearing for his safety. Police then swarmed through the area.

Algahiem said he essentially did no business for those six hours while police closed the street in front of his store. Several other Main Street merchants also said their business was slow during the morning, but none said they knew anything about the shooting or saw anything.

Slain Ecuadorean had dreams of better life

PEEKSKILL - German Marquinez came to the United States from Ecuador three years ago to build a better life and had hopes of one day bringing his wife and three young children north to live with him.

His dream ended on the street outside a downtown bodega early Friday, when he was shot to death after arguing with another man over a lottery ticket, police said.

Yesterday, as Peekskill detectives continued their investigation into Marquinez's death, his relatives recalled a quiet, strong man who, though a professional boxer in his homeland, was peaceful and enjoyed quiet times.

"He fought in the ring, but he did not believe in guns," said Marquinez's brother-in-law, Victor Ayabaca. "He worked in construction. He built a lot of the sidewalks and driveways around here. He was a good man."

Alicia Torres, Ayabaca's sister, said, "He worked very hard. He was a big, strong man. He'd come back home tired. He would shower and then play his guitar."

Ayabaca and Torres, both of Peekskill, said Marquinez's wife - their sister, Elvira Lourdes Ayabaca - took the news of her husband's death particularly hard in Ecuador.

"She is bad, real bad," Ayabaca said. The couple's three children are Mikaela, 6, Martin, 5, and Rosida, 4.

Yesterday, Torres held a folder filled with newspaper clippings from Ecuador, showing Marquinez, 40, in his prime as a prizefighter. He was killed by a single gunshot to the abdomen.

Marquinez had worked as a security officer at a bank in Cuenca, Ecuador, where his wife and children live. Yesterday, Ayabaca held up a stack of yellow papers, each a receipt from when Marquinez would send money home to his family.

"Whenever he could, he sent money home. One hundred, two hundred, whatever he could afford, he would send it back to his wife and children," Ayabaca said.

Marquinez would stand every morning with other day laborers outside a downtown deli hoping to find work, in construction, landscaping or whatever was available. But his strong hands and thick biceps made him a natural for masonry work, Ayabaca said.

What he was doing at 3 a.m. in front of the M&M Market and Deli on Main Street was unclear.

The police said yesterday that they were continuing to investigate, but declined to say if they had a suspect. Detective Sgt. Mark O'Buck said Marquinez was shot with a handgun, which police had not recovered, adding that police had interviewed several people.

Marquinez had a room in an apartment he shared with a few other men at 1049 Main St. One of them, Jose Reyes, remembered yesterday not only how well Marquinez played the six-string acoustic guitar, but that he taught himself how to play.

"He was a very nice guy. He was very intelligent," Reyes said. "We were all so surprised when the police showed us his picture and said he was dead."

Despite their grief, his family wants justice for Marquinez, Ayabaca said. "We want to take this guy and put him in jail," Ayabaca said of his brother-in-law's killer. "People fight. That happens. But using guns, that is wrong. There's no place for guns."

Anyone with information about the shooting is asked to call Peekskill detectives at 914-737-8000.

Homicide is defined in Section 125 of the state penal code. It includes the following crimes:

  • First degree murder
  • Second degree murder
  • First degree manslaughter
  • Second degree manslaughter
  • First degree vehicular manslaughter
  • Second degree vehicular manslaughter
  • Criminally negligent homicide

Man wanted in slaying surrenders

An 18-year-old Peekskill man sought in last week's shooting death of Ecuadorean immigrant German Marquinez has surrendered to police in Huntsville, Ala., and is expected to return to Westchester to face murder charges, police said yesterday.

Peekskill Police Chief Eugene Tumolo said William K. Upshaw was taken into custody Wednesday morning after a collaborative effort between Crime Stoppers branches in Westchester and Huntsville, where police had learned that Upshaw had relatives.

"From the onset, there were witnesses at the scene that we had to interview," the chief said. "From the information that they were able to provide, we were able to develop Upshaw as a suspect, and we were able to gather enough information, substantiate enough facts, to be able to obtain a warrant, which we ultimately lodged and secured his arrest in Alabama."

Two other Peekskill men police say were involved in the incident - Marcus Shelton, 23, and Jason Tinsley, 19 - were arrested this week and charged with second-degree assault.

Police said Marquinez, 41, was killed at 3:30 a.m. outside the M&M Market and Deli, a 24-hour store at Main and Division streets, after an altercation. He had visited the store to cash a lottery ticket, but was told to return later because the lottery machine was off- line.

After the shooting, police responded to a 911 call and found Marquinez lying in the road with a gunshot wound to the stomach. He was rushed to the hospital, where he was pronounced dead.

Marquinez came to the United States three years ago, leaving behind a wife and three children. He was among the scores of Hispanic residents who work as day laborers in construction, landscaping and other industries.

Yesterday, his sister-in-law, Alicia Torres, expressed relief that Upshaw had been apprehended and charged. She said Marquinez' wife, Elvira Lourdes Ayabaca, who lives in Ecuador with the couple's children, had been devastated by the news.

"I want him to get the maximum penalty for what he did," Torres said. "I never thought he would be captured. I have new confidence in the work of the police."

Relatives now hope to plan a vigil to be held at the scene of Marquinez' death.

Peekskill Mayor John Testa said that, in the wake of the slaying and other recent incidents targeting the city's day laborers, policing efforts would be stepped up.

"Toward that end, the police presence in downtown has been increased around the clock," Testa said. "Other initiatives are under way which will target all unlawful, disorderly and abhorrent activities throughout this area of the city."

Tumolo said day laborers are particularly vulnerable to assault and robbery.

"A lot of these people are very hard working. They carry a lot of money, and it's known," Tumolo said. "One of the things we're working toward is to lessen the impact that crime might have on them and give them some insight to how to avoid being a victim themselves."