South Florida

Video footage leads Miami-Dade judge to dismiss charges in self-defense case

Inside an elevator, an aggravated maintenance man raised his finger in menacing fashion. Gabriel Astengo, a retired Miami nightclub singer who was once a political prisoner in Cuba, swatted him away.

What started as a macho fisticuffs between total strangers spilled out into the lobby of a Miami office building.

It ended with the 68-year-old Astengo behind bars — after he took out his legally concealed pistol and socked janitor Juan Alvarez once over the head.

But surveillance video saved Astengo. After viewing the footage, a judge on Monday threw out the criminal case against Astengo, ruling the manacted in self-defense in pulling his gun against the janitor, who was holding only a wooden pallet.

“The man started chasing him. My client never pointed the gun at him. He just hit him on top of the head so he could get away,” said his defense attorney, Susy Ribero-Ayala. “All it did was cause a scratch.”

Florida’s 2005 Stand Your Ground law, which eliminated a citizen’s duty to retreat before using force to meet force, has been hugely controversial, but mostly in murder cases. The law also gave judges greater leeway to dismiss cases before being presented to juries.

Astengo’s case is unusual because the entirety of the incident was captured on video.

The defendant was a former Latin nightclub singer who, as a former political prisoner in Cuba, worked with exile groups in Miami. He had no prior criminal history.

In January, the retiree was headed to a doctor’s appointment in a building on the 300 block of Southwest 27th Avenue. In the lobby, Alvarez, holding a wooden pallet bound for the basement, was waiting for an elevator that continually was too crowded to enter.

Astengo claimed Alvarez, 54, made a “rude” comment to him as he entered the elevator, then the men started fighting. The video shows that when the elevator opened, Alvarez chased Astengo.

“He keep on saying he’s going to kill me,” Alvarez claimed in a deposition.

But the judge pointed out that the video showed Astengo was “calm,” never actually pointed the gun and was even trying to get away as Alvarez continued to pursue him. Astengo, who had claimed he believed the janitor might hit him with the pallet or pull some other weapon, faced at least 25 years in prison had he been convicted on the charge.

“Astengo began punching Alvarez in order to incapacitate him long enough to escape the aggressor,” Judge Yvonne Colodny wrote in her order dismissing the charges. “During this confrontation, Alvarez was in control of a large wooden pallet, which could have easily been used as a weapon.”