By Shayna Jacobs
DNAinfo Reporter/Producer
MANHATTAN SUPREME COURT — Lawyers defending an 18-year-old Chinatown student charged with murder appeared Tuesday to be mounting a case that witnesses can't tell the defendant apart from other Asian men.
In an unusual break with court procedure, a judge ordered accused murderer Victor Fong to sit not at the defendants table, but in the second row of the general audience next to five other Asian men of around the same age, who were dressed just like he was in suits.
Fong was seated with the audience as two teenage girls gave testimony about the murder of Nelson Pena, 18, on Nov. 18, 2009.
Prosecutors were careful not to ask either of the witnesses, Jubilee Domenech, 16, and Charlene Girdner, 17, who said they saw Pena's murder, to point out the alleged killer.
Typically prosecutors ask witnesses point out the accused and describe "an item of clothing" for jurors, to prove that they really witnessed the person in the act of the crime.
Prior to opening statements Tuesday, Manhattan Supreme Court Judge Bruce Allen issued an unusual order to have Fong sit in the audience while the DA's eyewitnesses took the stand.
The request was made by Fong's defense team, which raised concerns that Domenech and Girdner did not really identify Fong, just made general descriptions of an Asian male stabber.
Both witnesses described how a "misunderstanding" outside the Sun Yat Sen Intermediate School ended in bloody fight between rival groups of Asian and Hispanic friends.
"We were hanging out in the park, came around to go home and got into little misunderstanding — that's it," said Girdner, who said she was standing one foot away from Pena, her lifelong friend, when he was fatally stabbed.
But on cross-examination, Girdner said she was not able to describe the knife that killed him.
"So you say you saw [Pena] stabbed but you didn't see the knife?" defense attorney Robert Brown said.
"Put yourself in my shoes — this happened over a year ago, would you?" she snapped after a line of questioning about the weapon.
Domenech held up a sheet of printer paper to illustrate the size of the knife and said the blade itself was about eight inches long.
She said Pena ran across the street before "the Asian came behind him [and] grabbed a knife out" before cutting him from behind.
"He had on a grey sweater and his friend had on a blue sweater," she said, adding that Pena's killer was Chinese "with spiky hair...and dark clothing."
Testimony in Fong's trial will continue Wednesday morning in Manhattan Supreme Court.
