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Motion to Vacate Conviction Should Not Have Been Granted—Hearsay Statement Exonerating Defendant Did Not Meet the Criteria for a Statement Against Penal Interest and Should Not Have Been Admitted—The Underlying Evidence Was Not Newly Discovered Because Defendant Was Aware of It at the Time of Trial–Defendant Did Not Provide the Evidence at Trial Because He Feared Retaliation by Gang Members

The Fourth Department determined defendant’s motion to vacate his conviction should not have been granted.  The hearsay statement made by Jackson which exonerated defendant did not meet the criteria for a statement against penal interest and should not have been admitted in evidence.  The evidence involved was not newly discovered.  Defendant did not provide the evidence at trial out of fear of retaliation by gang members:

… [T]he court erred in admitting Jackson’s statement in evidence at the hearing, and, in any event, the statement would not be admissible at trial. This is vital because ” [i]mplicit in th[e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible’ ” … . Here, the court admitted the statement at the hearing as a declaration against penal interest, but it is well settled that “[f]or a statement against penal interest to be admissible the interest compromised must be such as to all but rule out’ motive to falsify, [and] the declarant must be conscious of the consequences of his statement at the time it is made . . . Those assurances of probative value, which might in a proper case substitute for cross-examination, were not present in this case” … . Although a less stringent standard applies where, as here, the declaration is offered by defendant to exonerate himself rather than by the People, to inculpate him… , none of the requirements was met here. To the contrary, the statement of the gang member was provided only after he was assured that he would not be prosecuted for any information that he provided, thus removing any indicia of reliability regarding that information… . …

Even assuming, arguendo, that Jackson’s statement was properly admitted at the hearing, and further assuming, arguendo, that the information he provided is material, noncumulative, and does not merely impeach or contradict the record evidence, we conclude that the information was known to defendant at the time of the trial … . We cannot agree with the court that it was in effect “newly discovered” based on defendant’s fear of physical harm to himself and his family. “A defendant who chooses to withhold evidence should not be given a new trial on the basis of the evidence thus withheld’ ” … . Therefore, the evidence does not satisfy the requirement that it was “discovered since the entry of a judgment based upon a verdict of guilty after trial” … . People v Backus, 2015 NY Slip Op 05330, 4th Dept 6-19-15

 

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Defendant’s Motion to Vacate His Conviction, Supported by Evidence that (1) the People May Have Violated Their “Brady” Obligation to Inform the Defense of a Plea Deal Made In Return for Testimony and (2) a Juror May Have Had a Mental Disability, Should Not Have Been Denied Without a Hearing

The Fourth Department determined defendant had made sufficient evidentiary showings that (1) the People may have failed to inform the defense of a plea bargain made with the codefendant in return for testimony against the defendant, and (2) a juror may have been unqualified due to a mental disability.  Therefore defendant’s motion to vacate his conviction should not have been denied without a hearing;

Defendant moved to vacate the judgment on two grounds, neither of which may be decided without a hearing. First, he contended that the People violated their Brady obligation because they failed to disclose that they made a specific plea agreement with the codefendant at the start of the proceedings, contingent upon the codefendant testifying against defendant. Defendant contended that the People effectuated that agreement by, among other things, obtaining an indictment charging the codefendant with a lower level crime than the class B violent felony that was lodged against defendant, to avoid the plea bargaining restrictions in CPL 220.10 (5) (d) (ii), and by agreeing that the codefendant could withdraw his plea to the lower level felony and plead guilty to a misdemeanor if he cooperated against defendant. Defendant submitted evidence in support of his contentions, including transcripts of the prosecutor’s statements in the codefendant’s case regarding the agreement, and those transcripts also established that the prosecutor had discussed the agreement with the victim before it was implemented. * * *

The second ground advanced by defendant in support of his CPL article 440 motion was that a juror lacked the capacity to serve on the jury, and that the juror had misrepresented his employment status in response to questioning by the court. Defendant submitted some evidence establishing that the prospective juror may be developmentally disabled and that he may have misrepresented his prior and current employment, but defendant’s investigator was unable to obtain more information without judicial subpoenas that the court declined to provide. Inasmuch as defendant submitted evidence that called into question “whether this particular juror should have been entrusted with the responsibilities of fact finding [because the juror] did not understand the lawyers or the judge” …, the court further erred in denying the motion on the ground that the issue could be decided on direct appeal. People v Bailey, 2015 NY Slip Op 04987, 4th Dept 6-12-15

 

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New Evidence Demonstrated the Declarant, Not the Defendant, Committed the Murders of Which Defendant Was Convicted—Motion to Vacate Defendants’ Convictions Properly Granted

The Fourth Department affirmed County Court’s vacation of defendant’s murder convictions, after a hearing, based upon newly discovered evidence. Although the “declarant” did not testify, witnesses testified declarant admitted killing the two persons defendant had been convicted of murdering. There was considerable evidence supporting the reliability of the declarant’s statements. The court noted that the declarant’s statements were admissible under an exception to the hearsay rule as “statements against penal interest” and it was reasonable to assume the declarant was “unavailable” (a requirement for admissibility) because he would assert his right to remain silent if called as a witness. The court further noted that the testimony of declarant’s ex-wife was not protected by spousal privilege. Declarant’s threat to kill his wife if she reported the murders to the police removed the “communications from the protection of privilege:”

Contrary to the People’s contention, County Court properly determined, following a hearing, that defendant proved by a preponderance of the evidence that “[n]ew evidence has been discovered since the entry of [the] judgment . . . , which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]; see CPL 440.40 [6]). People v Pierre, 2015 NY Slip Op 04985, 4th Dept 6-12-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

Defendant’s Motion for DNA Testing Should Have Been Granted

The Fourth Department held defendant’s post-conviction motion for DNA testing was sufficient to require a hearing to determine if DNA evidence still existed and, if so, whether it could be tested. The evidence identifying the defendant as the attacker was not overwhelming and semen, found on the victim’s clothes, had never been tested:

Following the attack, a semen stain was found on the crotch of the jumpsuit that the complainant had been wearing. There was no indication that the source of the semen could have been anyone but the attacker …, but no DNA testing was performed on the jumpsuit. Based on the record before us, we conclude that “the evidence of defendant’s guilt was not so overwhelming that a different verdict would not have resulted if . . . DNA testing excluded him” as the source of the semen on the jumpsuit … . We therefore remit the matter to Supreme Court for a hearing to determine whether the jumpsuit is still in existence and, if so, whether there is sufficient DNA material for testing … . People v Flax, 2014 NY Slip Op 03416, 4th Dept 5-9-14

 

Newly Discovered Evidence Indicating Defendant Was Not the Shooter Required a New Trial

The Fourth Department, over a dissent, determined defendant was entitled to a new trial on the basis of new evidence presented in his motion to set aside the verdict:

It is well settled that, in order to establish entitlement to a new trial on the ground of newly discovered evidence, “a defendant must prove that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence’ ” … .

We conclude that defendant met his burden of establishing all six factors by a preponderance of the evidence (see CPL 440.30 [6]…).  People v Bryant, 2014 NY Slip Op 03419, 4th Dept 5-9-14

 

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Defendant Convicted of Violating an Unconstitutional Statute Has Committed No Crime

The Second Department, in vacating defendant’s conviction for attempted aggravated harassment, explained that when a substantive criminal statute, here Penal Law 240.30 (1), has been held unconstitutional, the defendant convicted of violating the statute has committed no crime:

“Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime” … [.] … [T]he Court of Appeals held that Penal Law § 240.30(1), as written at the time of the defendant’s conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions … . Accordingly, the defendant’s conviction of attempted aggravated harassment in the second degree must be vacated … . People v Cesaire, 2015 NY Slip Op 03556, 2nd Dept 4-29-15

 

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Motion to Vacate Conviction Based Upon Victim’s Recantation Should Not Have Been Denied Without a Hearing

The Fourth Department determined Supreme Court erred when it denied defendant’s motion to vacate his conviction without a hearing.  The motion was primarily based upon the victim’s, defendant’s daughter’s, recantation of her rape allegations:

In her affidavit, the victim, who was the sole witness to give testimony at trial with respect to the crimes, averred that she wanted to live with her maternal grandmother. In order to effectuate that move, her maternal grandmother advised her to accuse defendant of having sexually assaulted her. The victim averred that she did not care about defendant at the time and, therefore, she agreed to accuse defendant of sexually assaulting her. She further averred that, since the trial, she had reconnected with her paternal grandmother and had seen how the latter was suffering because defendant was in prison. Witnessing that suffering resolved her to tell the truth. Although the court found the victim’s recantation to be inherently unbelievable or unreliable, we conclude that, based on the totality of the circumstances, such a finding was unwarranted in the absence of a hearing … .

The victim’s trial testimony that defendant had sexually assaulted her was crucial to the prosecution’s case. Her subsequent averments that she was encouraged by her maternal grandmother to accuse defendant of crimes so that she could live with her maternal grandmother indicate that she had a motive to lie at trial. We therefore conclude that the victim’s trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant … . Under those circumstances, the court’s denial without a hearing of that branch of defendant’s motion based on the victim’s recantation was an improvident exercise of discretion … . People v Martinez, 2015 NY Slip Op 02286, 4th Dept 3-20-15

 

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Appellant Entitled to a Hearing on His Motion to Vacate His Conviction—Questions of Fact Whether Witness Testimony Was Induced by Threats and/or Promises Not Disclosed to the Defense at Trial

The Third Department determined appellant, who had been convicted of second degree murder, was entitled to a hearing re: a potential Brady violation.  Appellant was an inmate at the time of the incident and the witnesses to the incident were other inmates Appellant, in a motion to vacate the conviction, presented affidavits from witnesses to the incident who averred they were threatened or offered promises by prison personnel in exchange for their testimony.  The court noted there was a question of fact whether the prosecution could be held responsible for the actions of prison personnel (relevant information may have been outside the control of the prosecution):

…[D]efendant was entitled to a hearing on his motion. Due process requires that the People disclose to the defendant any evidence in their possession that is “material to guilt or punishment” … . The People must disclose evidence relating to a witness’s credibility, including “the ‘existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness'” … . “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” … . When a specific request has been made for the evidence that was withheld, “the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … . People v Lewis, 2015 NY Slip Op 01492, 3rd Dept 2-19-15

 

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More Sophisticated DNA Test, Ruling Out the Defendant as the Source of Semen, Was a Proper Basis for Vacating Defendant’s Conviction–Criteria Described

The Fourth Department upheld County Court's grant of defendant's motion to vacate his rape conviction because a recent DNA test demonstrated he was not the source of semen found in the victim's vagina (the source was the victim's boyfriend).  At the time of the trial the DNA results were inconclusive and the prosecutor had argued the presence of semen corroborated the victim's assertion defendant had raped her:

“It is well settled that on a motion to vacate a judgment of conviction based on newly [*2]discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” … . “The power to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court” … . People v White, 2015 NY Slip Op 01075, 4th Dept 2-6-15


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