By John Annese
New York Daily News
NEW YORK — Slain NYPD Officer Jonathan Diller ’s partner broke down in tears Wednesday as he described video of the slaying that appeared to show the ex-con accused of murdering Diller break into a grin as he lay on the pavement after the deadly Queens shooting.
Accused killer Guy Rivera, who was also shot in the split-second encounter, was on the ground on his side, placed in a “recovery position” to keep him alive, Diller’s friend and fellow officer, Detective Derval Whyte testified in Queens Supreme Court Wednesday.
“That’s the defendant in the recovery position. It looks like he’s smiling,” said Whyte, who cried and held his head as he rewatched his own body-worn camera footage from the March 25, 2024, shooting.
It was the first time jurors had seen that angle of the shooting and heard Whyte’s anguished cries after seeing Diller, 31, on his back, unresponsive. Rivera’s apparent smile was visible when prosecutors stopped the chaotic footage to show the suspect on the ground.
Whyte, a five-year NYPD veteran, said he worked with Diller as part of Patrol Borough Queens South’s community response team, and they became close friends.
“We spent so much time together we basically became family. We shared family stories. We shared food,” he told jurors at Rivera’s trial.
Rivera, 35, faces murder, attempted murder and weapon possession charges nearly two years after prosecutors say he fatally shot Diller in the stomach during a car stop on Mott Ave. in Far Rockaway.
Whyte was part of the five-officer team tapped to do an overtime shift to address robberies in the 101st Precinct when he and another officer, Veckash Khedna, spotted a man digging into his waistband on the sidewalk.
The man was fixing his belt and didn’t have a gun, but as that interaction ended, Diller yelled “Yo” to Whyte and snapped a finger to draw his attention to a gray Kia sedan.
Rivera was in the Kia’s passenger seat, with Diller and Rosen positioned by the passenger door. Another officer, Delio Fernandez, was speaking with the driver — whose hands were up and empty.
The passenger door was open, and Rivera removed his seatbelt with both hands over his head, then, the footage shows, reached into the right pocket of his jacket as he turned away from Diller and Rosen.
“Don’t put your hands in your pocket. Put your hands out of your pocket!” Khedna yelled, according to Whyte.
Then, Whyte saw what looked like Rivera moving his right shoulder down, like he was reaching toward the car seat, and turning toward Diller with his left shoulder.
“The right hand is going away from Detective Diller, and then, ‘Pop,’ a shot went off,” Whyte said. “Lightning speed, to catch him off guard, to catch Detective Diller off guard. Lightning speed.”
Rivera pushed his way out of the Kia and Whyte heard a second pop. Whyte pulled out his firearm, moving from the driver’s side to the back of the car as Rivera extended his right arm toward Rosen’s chest. Whyte didn’t see what was in Rivera’s hand.
Diller was already on the ground, on his back. “A third shot went off, ‘Bam,’ a third shot went off, and everyone went down,” Whyte said.
Whyte pulled the driver out of the car and cuffed him while the other officers moved to cuff Rivera.
Then he heard Diller yell, “I’m shot!”
“He was motionless, and he was clenching his hands like this, and he wasn’t moving,” Whyte said. “I’m looking for a gunshot wound, and I’m rolling him over, and that’s when I discover a bullet shot in his naval area below his vest.
“I said, ‘Dilly! Dilly!’ and he was unresponsive, he wasn’t responding.”
“Everybody was emotional, you know, including myself, because I just watched my friend, my very close co-worker, just got shot in front of me for no reason.” Whyte said.
Two more officers arrived to pull Diller into an NYPD vehicle and rush him to Jamaica Hospital Medical Center, where he died.
During cross-examination, Rivera’s defense attorney, Jamal Johnson, tried to press Whyte on what his team was doing that day, asking if they stopped the first man in his encounter because they were targeting Black people for searches.
“Isn’t it true that at that particular date and time you were racially profiling?” Johnson asked, drawing an objection from prosecutors.
Johnson also went frame-by-frame through Whyte’s bodycam footage, trying to establish that Rosen reached into the car toward Rivera before the first shot went off. Whyte repeated that he couldn’t see the sergeant’s hands.
The defense team has argued that the Diller was killed by an unintentional discharge after Rosen grabbed and pulled Rivera inside the Kia.
Rivera’s trial continues Tuesday at 10 a.m.
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