[*1]Decided on December 31, 2009

THE PEOPLE OF THESTATE OF NEW YORK against Selwyn Days, Defendant.

0469/01



For the People:

Hon. Janet DiFiore

District Attorney of Westchester County

By: Christine O'Connor, Assistant District Attorney

111 Dr. Martin Luther King, Jr., Blvd.

White Plains, New York 10601

For the Defendant:

Nadar R. Hasan, Esq.

Paul, Weiss, Rifkind, Wharton & Garrison, LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Glenn Garber, Esq.

Exoneration Initiative

350 Broadway, Suite 1207

New York, New York 10013

Brian Macreery, Esq.

Deren, Genett & Macreery

28 Edgemont Road

Katonah, New York 10636



Jeffrey A. Cohen, J.

Shortly after noon on November 21, 1996, the bodies of 79 year-old ArchieHarris and 35 year-old Betty Ramcharan were discovered inside of Harris' Eastchester home.Harris had been beaten, bludgeoned and stabbed to death, while Ramcharan had been strangledand suffocated and her throat had been slit. A bloody kitchen knife was found lying nearRamcharan. More than five years later, on February 16, 2001, the defendant, Selwyn Days, wasarrested in connection with these homicides and more than seven years later, on April 16, 2004,following a second jury trial, the defendant was convicted of two counts of murder in the seconddegree, Penal Law § 125.25, for the intentional homicide of both Mr. Harris and Ms.Ramcharan. He was thereafter sentenced to two consecutive terms of 25 years to lifeimprisonment.

Three years later, by order to show cause filed on August 17, 2007, the defendant moved,through counsel, for an order pursuant to Criminal Procedure Law § 440.10(1)(h), vacatingthe judgment on the ground that it was obtained in violation of the defendant's rights under theSixth and Fourteenth Amendments to the United States Constitution and Article I, § 6 ofthe New York State Constitution, to due process and the effective assistance of counsel. OnOctober 17, 2007, the People filed an affirmation in opposition to which the defendant filed areply dated January 3, 2008. On January 31, 2008, the People filed a sur-reply. Thereafter, bynotice of motion dated June 25, 2008, the defendant supplemented his initial application andmoved for an order vacating the judgment and dismissing the indictment on the ground that he isactually innocent of the crimes of which he was convicted pursuant to Criminal Procedure Law§ 440.10(1)(h), Judiciary Law § 2(b)(3), as well as the Federal and StateConstitutions. On August 22, 2008, the People submitted a memorandum of law in which theyopposed the defendant's motion and on September 23, 2008, the defendant filed a reply. Lastly,on February 25, 2009, the defendant moved for an order pursuant to Criminal Procedure Law§ 440.10(1)(g), vacating the judgment on the ground that new evidence —recentDNA test results— has been discovered since the entry of judgment which the defendantcould not have produced at the earlier trial even with due diligence on his part and is of suchcharacter as to create a probability that had such evidence been received at trial the verdictwould have been more favorable to him. The People submitted an affirmation in opposition onMarch 16, 2009, to which the defendant filed a reply on March 20, 2009.

Ultimately, this court ordered a hearing with respect to all three issues that the defendantraised: ineffective assistance of counsel; newly discovered evidence and actual innocence, whichhearing was held on June 8, 2009; June 10 - June 12, 2009; June 17- June 18, 2009; and June 24,2009. The court heard testimony form Remona McIver, Perry Sharp, Cindy Artis, Donald Evans,Kevin MacLaren, Sandra Thomas, Elaine Schwartz, Robert Adamo and Christopher Chan,following which the defendant filed a memorandum of law on July 13, 2009. The Peoplesubmitted a memorandum of law on [*2]July 22, 2009, and onAugust 4, 2009, the defendant filed a reply memorandum of law. In addition, the defendantsubmitted a letter dated August 7, 2009, attaching two recently published opinions which addressclaims of actual innocence, People vWheeler-Whichard, 25 Misc 3d 690 (Sup Ct. Kings Co 2009), and People vBermudez, Indictment Number 8759/91, Supreme Court, New York County, August 5,2009. In a letter to the court dated August 13, 2009, the People responded to the defendant'sletter. Since then, the Bermudez court issued its ruling post-hearing, see 25 Misc3d 1226(A), and two other court's have issued written opinions regarding claims of actualinnocence, People v Bryant, 25 Misc 3d 1206(A)(Sup Ct. Bronx Co. 2009), andPeople v Bozella, 25 Misc 3d 1215(A)(County Ct. Dutchess Co. 2009). On this record,the court determines the defendant's applications as follows.

Ineffective Assistance of Counsel

The crux of the defendant's claim that he was denied the effective assistance of counsel restson the purported failure of his trial attorney to fully investigate and then present to the jury analibi defense. Additionally, the defendant asserts that trial counsel's failure to reviewBrady material, see Brady v Maryland, 373 US 83 (1963), also rendered himineffective within the meaning of the Constitution.

In support of his alibi claim, the defendant proffered, inter alia, the testimony of fourwitnesses at the hearing, Remona McIver, Cindy Artis, Perry Sharp and Donald Evans. Havingheard their testimony and seen their demeanor on the witness stand, the court finds that each wascredible. All of these witnesses appeared to testify honestly and forthrightly with their demeanorand body language in accordance with their words. The defendant maintains that these witnesses,along with others, establish that he was in Goldsboro, North Carolina, at the time the doublehomicide was committed: November 19, 1996, to November 21, 1996.^[FN1]

Briefly, Remona McIver testified that she has been a magistrate in North Carolina forapproximately the past 22 years. She met the defendant's mother, Stella Days, when she cameinto McIver's office one day to inquire about taking out a warrant for a minister who had brokenher teeth. She later met the defendant in the latter part of 1996.

Magistrate McIver also encountered Stella Days when she came to McIver's office seeking awarrant for the defendant's girlfriend, Cindy Artis, who Stella alleged had threatened her.Magistrate McIver recalls that the defendant was with his mother at this time and that theyargued in her office over the request for the warrant. Not surprisingly, [*3]the defendant did not want his mother to press charges. MagistrateMcIver, who had mentioned some medical problems to which Stella Days, a nurse, suggestedthat McIver drink a lot of water, also recalled that the defendant brought her a gallon of waterand set it on her desk about 15 minutes after she issued the arrest warrant for Ms. Artis. Relyingpredominately on a Criminal Process Update, a document generated as a criminal processthrough the clerk's office, Magistrate McIver averred that the date of the alleged offense wasNovember 20, 1996, and that she issued the warrant on November 21, 1996. Accordingly, shestated unequivocally that the defendant was in her office in North Carolina on November 21,1996. However, she could not tell the court that the defendant was in her office on November 17,1996, November 18, 1996, November 19, 1996, or November 20, 1996.

Magistrate McIver related further that pursuant to Stella Days' request, she forwarded aletter, dated September 2, 2003, to the defendant's attorney, Christopher Chan, in which shestated in full "SELWYN DAYS WAS IN MY OFFICE SOMETIMES DURING THE LAST OFTHE YEAR IN 1996. HE GAVE ME A JUG OF WATER. I CAN NOT REMEMBER THEMONTH OR THE DATE." See Defense Exhibit D(capitalization in original.). BecauseNorth Carolina magistrates do not have letterhead, this correspondence was typed on a plainwhite sheet of paper. Although she initially testified that she did not review any documents priorto writing this letter, Magistrate McIver subsequently clarified her testimony to assert that shedid go to the computer system to pull up the Criminal Disposition Update and Criminal ProcessUpdate, Defense Exhibits A and B respectively, and refresh her memory, but that she did notprint the documents prior to writing the September 2, 2003 letter.

Perry Sharp, who retired in 1999 as a captain with the Goldsboro, North Carolina policedepartment, next testified regarding his pertinent interactions with the defendant in Goldsboro.Captain Sharp recalled first meeting the defendant in Goldsboro in late 1993 or early 1994.Furthermore, Capt. Sharp recalled a dispute between the defendant's girlfriend, Cindy Artis, andthe defendant's mother, Stella Days. Specifically, Capt. Sharp testified that he responded toSelwyn and Stella Days' residence and that the defendant answered the door. After about a threeminute conversation with the defendant, Capt. Sharp learned that Stella Days was at her sister'shouse and he proceeded there. Capt. Sharp then talked to Stella Days at her sister's home andalthough Stella Days appeared extremely angry and upset when he spoke with her regarding theincident with Cindy Artis, it was his impression that Stella Days was going to let the matter drop.Moreover, while Capt Sharp could not recall the specific date on which these events took place,he recalled, as he always has, that they occurred a day or two prior to Thanksgiving in Novemberof 1996, the reason being that at the time he spoke to Stella Days regarding the Artis incident,Ms Days and her sister were preparing for a yard sale. Stella Days' sister's house had dresses andother clothes out, along with figurines, costume jewelry and she and her sister were puttingnecklace beads in a jar. The yard sale was to take place on the [*4]Saturday after Thanksgiving, which the witness essentially foundfoolish. Capt. Sharp thought no one is going to be interested in a yard sale at Thanksgiving time.

Thereafter, Capt. Sharp learned, probably in 2001, when Stella Days contacted him, of thedefendant's arrest for murder. In 2003, Capt. Sharp spoke to the defendant's attorney, ChristopherChan, once for approximately one-half hour over the telephone. He does not recall speaking toanyone else about the defendant's case prior to the defendant's conviction and he cannot say withany certainty that the defendant was living in Goldsboro, North Carolina during the entire monthof November 1996.

Cindy Artis, now known as Cindy Ramona Dawson, also testified regarding her knowledgeof the defendant's whereabouts in November of 1996. Ms. Dawson too lived in Goldsboro, NorthCarolina and at the end of October of 1996, shortly after the conclusion of her own criminal trialin September of 1996, she there met the defendant. They began dating the following day andcontinued to do so for approximately one and one-half months. They spoke on the telephonedaily and Ms. Dawson is "very confident" that she "probably saw" the defendant everyday whenthey were dating.

One day when Ms. Dawson called the defendant, his mother answered the telephone andthen accused the witness of living at the Days' house and leaving some belongings there. Ms.Dawson denied that she was living there and denied that she left any belongings there. The twohad a rather heated argument over the telephone. Not too long afterward, the defendanttelephoned Ms. Dawson and advised her that his mother had obtained a warrant for her forcommunicating threats. Ms. Dawson saw the defendant again after this incident with his mother,but they were no longer dating. They mostly spoke to each other over the telephone.

In 2004, Ms. Dawson learned from Stella Days that the defendant was on trial for murder.Approximately one year ago, Stella Days again located her and asked Ms. Dawson to swear outan affidavit stating that Ms. Dawson was living at Stella Days' house. Because the witness hadnever lived at the Days' house, although she had spent a couple of nights there, Ms. Dawsonrefused. Essentially, Stella Days wanted Ms. Dawson to say she was at the Days' house whenMs. Dawson could not swear to being there. Stella Days then indicated to Ms. Dawson that if thedefendant gets released and gets a lot of money, they would make sure that she was taken careof, that she could stop working. Stella Days' comment did not help her cause and Ms. Dawsonstill did not sign an affidavit. Similarly, Ms. Dawson declined to sign an affidavit when one ofthe defendant's current attorneys contacted her prior to April of 2008.

In sum, Ms. Dawson could not recall the specific dates on which particular incidentsoccurred, but she maintains that she did see the defendant, Selwyn Days, every day in Goldsboroduring November of 1996.

The defendant also presented as a witness with information concerning his whereabouts inNovember of 1996, Donald Evans, who owned Crossroads Café in Goldsboro, NorthCarolina from 1993-2006. Mr. Evans first met Stella Days at his [*5]restaurant in approximately October of 1996. He met the defendantabout one month later, around the first of November 1996. Soon thereafter, the defendant'smother asked Mr. Evans if the defendant could run a tab for meals he would eat in CrossroadsCafé while she was out of town working in Florida. She promised to pay the tab upon herreturn and Mr. Evans agreed. He recalls the time frame because he was closing a secondrestaurant he owned in Myrtle Beach and was busy traveling the four to five hour trip betweenGoldsboro and Myrtle Beach.

A couple of days after Stella Days' returned from Florida, Mr. Evans stated that he attendeda yard sale at the Days' residence. This occurred on a Friday in November of 1996. After hecompleted the business for Crossroads Café, including the payroll, Mr. Evans went to theDays' yard sale where he saw both the defendant and his mother. Furthermore, he recalledpurchasing some lawn furniture while there. Insofar as the furniture would not fit into his car,Mr. Evans returned on Tuesday of the following week to retrieve it. When he arrived, thedefendant was present. Ultimately, the defendant accompanied Mr. Evans to his house with thelawn furniture and when they arrived the defendant saw Mr. Evans' horses. The defendant waslike a little kid around them, petting them and getting acquainted with them. Mr. Evans' thenaverred that date on which this occurred was November 19, 1996.

After learning from Stella Days that the defendant was facing a trial for murder, Mr. Evans'spoke to Christopher Chan, the defendant's attorney, at Ms. Days' urging. According to thewitness, he spoke to Chan over the telephone on two occasions and that Chan did not seemparticularly interested in what the witness had to say. Evans' also signed a letter in 2003, whichstates that he saw the defendant daily in November of 1996, that he went to the Days' house thefirst week of November where a yard sale was occurring and that he and the defendant picked upStella Days at the bus station on November 13, 1996, and while he did not author that letter, heagreed with its contents, and forwarded it to Chan. Indeed, Mr. Evans thinks he may have toldChan that the yard sale occurred on November 1, 1996, which would mean that Evans' picked upthe furniture on November 5, 1996, not November 19, 1996. However, at the time he spoke toChristopher Chan, Evans did not have his 1996 calendar to review. To be sure, it was only inabout January of 2009, that Mr. Evans came across his 1996 calendar. Upon reviewing it and thenotations it contained, Mr. Evans can now be explicit that the lawn furniture transport occurredon November 19, 1996, and thus he saw the defendant in Goldsboro, North Carolina onNovember 19, 1996. He can also now be sure that despite the contents of the 2003 letter, hecould not have picked up the defendant's mother at the bus station in Goldsboro on November13, 1996, because he was in Myrtle Beach that day. Likewise, contrary to his assertion in the2003 letter, he could not have seen the defendant around Goldsboro every day in November of1996, as he was traveling throughout the month.

Mr. Evans' calendar catalogs his schedule throughout the year 1996, including his [*6]travels. Although Evans testified to his practice concerning thecircumstances under which he would note a particular city in his calendar, a careful review of thecalendar revealed that his "practice" was, at a minimum, inconsistent. Nevertheless, Mr. Evans'calendar notations for the possible Friday-Tuesday combinations in November 1996 areNashville, Goldsboro and Lagrange on Friday, November 1, 1996, Wilson on Election Day,Tuesday, November 5, 1996, about 30 minutes away; Goldsboro, on Friday, November 8, 1996,Myrtle Beach on Tuesday, November 12, 1996, Goldsboro, on Friday, November 22, 1996,Myrtle Beach on Tuesday, November 26, 1996, Goldsboro, on Friday, November 29, 1996, andPinehurst, North Carolina on Tuesday, December 3, 1996. The calendar is blank for Friday,November 15, 1996, and Tuesday, November 19, 1996. Mr. Evans did nonetheless produce abank deposit slip indicating that he made a deposit into his personal account on November 18,1996, at either a branch in Pikesville or Freemont, which are respectively approximately eightand ten miles away from Goldsboro.

In short, Mr. Evans is confident of the dates in and the accuracy of his 1996 calendar. Theonly date on which he could have moved the lawn furniture with the defendant was November19, 1996.

Finally, the defendant's attorney, Christopher Chan, Esq., testified at the hearing. Mr. Chan,a seasoned defense attorney handling criminal cases, represented the defendant at both of histrials, the defendant's mother having retained Chan to represent her son on or about February 2,2003. Ultimately however, Chan was assigned as counsel. According to Chan, the primaryevidence against the defendant consisted of the defendant's confession and there were alsoadmissions that the defendant purportedly made to Cherilyn Mayhew. At the defendant's firsttrial, the defense argued that there was insufficient evidence to establish the defendant's guiltbeyond a reasonable doubt. While the defendant also endeavored to elicit evidence that athird-party was responsible for the murders, the trial court severely limited that effort, if notdenying it altogether. Nevertheless, the jury could not reach a verdict and in November of 2003,the trial court accordingly declared a mistrial. At the defendant's retrial, the defensepredominantly argued a murder-suicide theory: Betty Ramcharan killed Archie Harris and thenkilled herself, slitting her own throat, putting a plastic bag over her head and tying a rope aroundher neck.

Prior to both trials, Mr. Chan knew that there was absolutely no forensic evidence linkingthe defendant to the crimes. He was also aware of the DNA tests and their results. Chanspecifically recalled the Westchester County Laboratory tests, but he has no independentrecollection of any DNA tests and results of the Federal Bureau of Investigation. He cannot saywhether he was aware prior to the defendant's first trial that there was DNA present from morethan one individual on specimen Q21-3 as the FBI report indicates. Chan could also not recall ifhe ever looked at a Supplementary Complaint Report of the Eastchester Police Department,dated June 1999, Exhibit RR, [*7]which states that testing of aDNA sample taken from the knife found in the bathroom next to Betty Ramcahran reveals thepresence of more than one person. In any event, Mr. Chan never contacted a DNA expert prior toeither trial and never requested to have an independent DNA analysis performed. He indicatedfurther that the FBI report evincing the presence of another person via an extra allele, would nothave changed Chan's trial strategy of exploiting the lack of forensic evidence tying the defendantto the crime. It would simply have provided him with an extra argument

Mr. Chan was also aware in March of 2003 of a potential alibi defense. In fact, he sent aletter to the prosecutor on March 24, 2003, that addressed, among other things, a late notice ofalibi. However, he had as yet not retained an investigator nor interviewed any of the potentialalibi witnesses. Indeed, Chan had, inter alia, a financial dispute with Stella Days and ashe advised the court at the end of July 2003, the defendant's mother refused to give Chan gasmoney to enable him to travel to North Carolina to speak with the alibi witnesses. ApparentlyStella Days did not want Chan to speak directly to these witnesses as he might scare them. Chanfurther advised the court at this time that he would be incompetent if he continued to representthe defendant and asked to be relieved as counsel. The court denied that request as it would asubsequent application on essentially the same ground made two months later, September 30,2003.

With respect to the witnesses that testified at the hearing, Magistrate McIver, Capt. PerrySharp, Cindy Artis and Donald Evans, Chan does not recall if he ever spoke to Cindy Artis andDonald Evans. In addition, while he is fairly certain that he did speak to Perry Sharp, he cannotrecall any of the specifics of their conversation. As to Remona McIver, Chan does not have anindependent recollection of speaking with her. However, he listened to a tape recording thatStella Days surreptitiously made of a conversation Chan had with Investigator Grimes, aninvestigator in North Carolina whom Stella Days had hired in connection with this case, in whichthey discuss McIver. Chan cannot tell from the contents of that taped conversation whether hepersonally spoke to McIver. In any event, Chan did tell Grimes that McIver's letter was a forgeryand that he could not figure out how he could get the letter from her, a purported magistrate inNorth Carolina, not on judicial stationary, addressed "to whom it may concern," and stating thatthe defendant gave her a jug of water in later 1996, but that she did not remember the month orthe date. Even after reviewing Magistrate McIver's letter at the hearing, Chan indicated that itdefinitely looks suspicious. It was not self-authenticating. It lacked a telephone number andletterhead of any kind. In essence, it could be generated on almost any computer.

Additionally, Chan doubted some of the information that Stella Days was giving him. Hesuspected some of it was simply false. There was videotape ^[FN2] of some proposed [*8]alibi witnesses that Stella Days provided to Chan on which Chanclearly heard Stella Days speaking in a stage whisper and putting words into the witnesses'mouths. Moreover, Stella Days appeared stunned when Chan later explained that he could notjust offer this tape into evidence at trial, that the witnesses would have to testify and becross-examined.

Furthermore, Stella Days gave Mr. Chan the name of Adam Seiden as a potential witness inthis case. Although Chan did contact Seiden, who turned out to be a judge in Mount Vernon, toask about some real estate matter, Chan was embarrassed and dumbfounded and did not makeany connection as to why Ms. Days' wanted Chan to speak with Seiden. With hindsight, Chanagreed that disproving the contents of the defendant's confession would be reasonable for anattorney defending the defendant to do. In his confession, the defendant's stated that he wentback to his home in Mount Vernon after the double homicide. Yet, Judge Seiden drafted a leasebetween Stella Days and Mark Moore for her Mount Vernon residence that began on October 1,1996, and lasted through November 1996, and beyond. Mr. Chan has no recollection of everdiscussing such a lease with Judge Seiden.

On cross-examination, Mr. Chan opined that whether to present an alibi defense in this casewas a strategic decision. He did not believe that it was the best defense. Rather, a defense ofactual innocence was strongest and at both of the defendant's trials, Chan argued to the jury thatthere was absolutely no forensic evidence linking the defendant to the bloody crime scene.Moreover, Chan maintained that he did not receive any reliable information in support of an alibidefense, which in order to be effective, had to be complete. He believed, as noted above, that thevideotape of six potential alibi witnesses —none of whom included any of the witnesseswho testified at the hearing— that Stella Days provided him was fabricated and RemonaMcIver's letter was questionable as well. Additionally, Perry Sharp mentioned that Stella Dayswas selling jewelry in North Carolina. Chan knew that Ms. Days was not an affluent woman andthat raised a concern about from where she obtained the jewelry as Chan also knew that itemswere missing from the Harris home. It gave him pause. Furthermore, Chan was aware that thePeople's theory of the case had Stella Days at its heart. Ms. Days had once worked as an aide forArchie Harris and that she had accused him of sexually assaulting her. Indeed, she had filed acriminal complaint and commenced a civil lawsuit against Mr. Harris as a result. In essence,avenging his mother was the defendant's motive in the slaying and Chan was reluctant tointerject Stella Days any deeper into the trial. Finally, the defendant himself was aware of thedates on which the homicides could have occurred and he did not object to forgoing an alibidefense.

The defendant is, of course, guaranteed the right to the effective assistance of counsel underboth the Federal and New York State Constitutions. In order to prevail on [*9]a federal claim of ineffective assistance of counsel, the defendantmust "[d]emonstrate both that counsel's performance was deficient and that the deficientperformance prejudiced the defendant." People v Caban, 5 NY3d 143, 155 (2005), citing Strickland vWashington, 466 US 668 (1986). Prejudice exists when "there is a reasonable probabilitythat, but for counsel's unprofessional errors, the result of the proceeding would have beendifferent."' Caban, 5 NY3d at 155, quoting Strickland, 466 US at 694.Furthermore, in general, strategic choices made by counsel after a thorough investigation of thefacts and law are "virtually unchallengeable," though strategic choices "made after less thancomplete investigation are reasonable precisely to the extent that reasonable professionaljudgments support the limitations on investigation." Strickland, 466 US at 690-91.Counsel does have "[a] duty to make reasonable investigations or to make a reasonable decisionthat makes particular investigations unnecessary." Id. at 691.

In order to prevail on a State claim of ineffective assistance of counsel, the defendant must"[d]emonstrate that his attorney failed to provide meaningful representation," Caban, 5NY3d at 152, citing People v Benevento, 91 NY2d 708, 712 (1998); People vBaldi, 54 NY2d 137, 147 (1981), and in contrast to the federal standard, a defendant is notrequired to "[f]ully satisfy the prejudice test of Strickland."' Caban, 5 NY3d at155, quoting People v Stultz, 2NY3d 277, 284 (2004). Although a showing of prejudice is not an indispensable element inassessing meaningful representation, it is nevertheless significant, id., and focuses on the "[f]airness of the process as a whole rather than its particular impact on the outcome of thecase."' Caban, 5 NY3d at 156, quoting Benevento, 91 NY2d at 714. Furthermore,the defendant must also "[d]emonstrate the absence of any strategic or other legitimateexplanation"' for his attorney's allegedly deficient conduct. Caban, 5 NY3d at 152,quoting People v Rivera, 71 NY2d 705, 709 (1988). In this regard, it may well be truethat "the emphasis of some defenses over others is a matter of trial strategy that will not besecond guessed. . . ."' People vBussey, 6 AD3d 621, 623 (2nd Dept 2004), leave denied 4 NY3d 828 (2005),quoting People.v Rodriguez, 132 AD2d 682 (2nd Dept 1987). However, it is equally truethat "the defendant's right to representation does entitle him to have counsel conduct appropriateinvestigations, both factual and legal, to determine if matters of defense can be developed, and toallow himself time for reflection and preparation for trial'"' Bussey, 6 AD3d at 623,citing People v Bennett, 29 NY2d 462, 466 (1972), quoting Coles v Peyton, 389F2d 224 (4th Cir.), cert. denied 393 US 849 (1968)(internal quotations omitted.) Indeed,the failure to investigate is fundamental to the deprivation of the effective assistance of counsel.People v Fogle, 307 AD2d 299, 301 (2nd Dept 2003), citing Thomas v Kulman,255 F Supp 2d 99 (EDNY 2003); People v Donovan, 184 AD2d 654, 655 (2nd Dept1992).

Here, it is hardly surprising that Chan did not believe that an alibi was the best defense. Forhis, at best, cursory investigation into the existence of such defense doomed its significance fromthe outset. Early on, counsel knew virtually all of the alibi witnesses [*10]with the exception of Cindy Artis. Yet, he made little or no effortto determine whether those witnesses should be used at trial. To the extent he had a well-foundedconcern about the authenticity of the letter from Magistrate McIver, he could, as the defendantnotes, have simply placed a telephone call to court officials in Goldsboro, Wayne County, NorthCarolina. Or, counsel could have simply asked Captain Sharp, with whom he spoke, whether heknew of a Magistrate McIver. After all Capt. Sharp was a police officer in Goldsboro and theresponsibilities of magistrates there include issuing search and arrest warrants. Moreover,Magistrate McIver specifically testified that she knew Capt. Sharp.

Further, to the extent that defense counsel was justifiably concerned about the videotape ofpurported alibi witnesses that Stella Days had presented to him, it does not provide a blanketexcuse for his failure to investigate potential alibi witnesses who were not on that tape andincluded otherwise prominent citizens: a magistrate, police officer and local businessman.

In addition, counsel's assertion that he dismissed Capt. Sharp as an alibi witness becauseSharp mentioned that Stella Days was selling jewelry at the upcoming yard sale does reveal, asthe defendant asserts, how little effort counsel expended in investigating the potential alibi. Inshort, Capt Sharp indicated that the jewelry Stella Days was offering for sale was costumejewelry, not valuable jewelry possibly removed from the Harris home at the time of the murders.Consequently, there was no impediment to calling Capt. Sharp as a witness who placed thedefendant in North Carolina during the month of November 1996. Indeed, taken together, thealibi witnesses place the defendant in North Carolina at the time the homicides were committed.

Not to be ignored as well is trial counsel's failure to review the 1999 FBI report that thePeople disclosed as Brady material. Counsel admitted that he has no independentrecollection of any DNA testing results of the FBI and he cannot say whether he was aware priorto the defendant's first trial that there was DNA present from more than one individual as the FBIreport indicates. Significant as well is counsel's failure in recollection regarding the June 1999Eastchester Police Department report which states that DNA testing of a sample taken from theknife found next to Betty Ramcharan reveals the presence of more than one person. While it istrue, as the People contend, that counsel argued the lack of any forensic evidence linking thedefendant to the crimes, the jury was not told that there was DNA from a third party on themurder weapon. And, although counsel contended that he would not have altered his trialstrategy based on the FBI report, constitutionally effective counsel would have. See People v Cyrus, 48 AD3d 150(1st Dept 2007), leave denied 10 NY3d 763 (2008).

The defense argued to the jury upon retrial a murder-suicide theory. Specifically, the jurywas told that only Betty Ramcharan's DNA was found on the knife; therefore counsel assertedthat she bludgeoned and stabbed Archie Harris, killing him, and then turned the knife on herself.She slit her own throat and then strangled and suffocated [*11]herself. The implausibility of this defense is apparent on its face.When coupled with the absence of any scientific evidence in support, —the medicalexaminer flatly rejected the theory when questioned about it and the defendant did not call anexpert— it undoubtedly calls in to question the proffering of such a defense even withoutthe evidence from the FBI report. The contents of the FBI report only serves to highlightcounsel's incompetency at trial.

Finally, it can only be said that under the circumstances of this case that the defendant has"[d]emonstrate[d] both that counsel's performance was deficient and that the deficientperformance prejudiced the defendant." People v Caban, 5 NY3d 143, 155 (2005), citing Strickland vWashington, 466 US 668 (1986). Indeed, "there is a reasonable probability that, but forcounsel's unprofessional errors, the result of the proceeding would have beendifferent."'Caban, 5 NY3d at 155, quoting Strickland, 466 US at 694. Counsel'sfailure to adequately investigate an alibi defense and then present that evidence to the jury,coupled with his failure to review and rely upon the DNA testing results revealed in the 1999FBI report as well as proffering an implausible defense to the jury, virtually assured thedefendant's conviction. Had the alibi evidence and the DNA testing results been presented to thejury, the result of the trial may well have been different. Accordingly, the defendant hasestablished that he was denied the effective assistance of counsel under the Federal Constitution.Inasmuch as our State Constitution offers greater protection, that is inadequacy of counsel willwarrant reversal whenever a defendant is deprived of a fair trial even in the absence of areasonable probability of a different outcome, see Caban, 5 NY3d at 156, it follows thatthe defendant has also sustained his burden of establishing that he was denied the effectiveassistance of counsel under our State Constitution as well.

Accordingly, that branch of the defendant's motion for an order pursuant to CriminalProcedure Law § 440.10(1)(h), vacating the judgment on the ground that it was obtained inviolation of the defendant's rights under the Sixth and Fourteenth Amendments to the UnitedStates Constitution and Article I, § 6 of the New York State Constitution, to due processand the effective assistance of counsel is hereby granted and a new trial is ordered.

Newly Discovered Evidence

Earlier this year, following an agreement between the parties, the Westchester CountyDepartment of Laboratories & Research, Division of Forensic Sciences ("Lab") re-tested severalitems of evidence recovered at the crime scene. On May 28, 2009, the Lab issued its final report,detailing test results from the murder weapon, a kitchen knife found near Betty Ramcharan, anda rope found in the basement of Archie Harris' home. Those results revealed that of the four newsamples collected from the knife, all contained human DNA. Only one of those samples, thatfrom the base of the blade, was of a single source, that is, from one individual, and that person isBetty Ramcharan. Three of the [*12]samples were a mixture, thatis, they each contained DNA from more than one person. Ms. Ramcharan, at a minimum, cannotbe excluded as a source of a profile found in each of the mixtures and the defendant's profile wasnot found in any of the mixtures. Archie Harris' DNA profile was also not found in any of thethree mixture samples. However, in two of the three mixture samples, the Lab detected asingle-source male profile.

In addition, a partial DNA profile was developed from a swabbing of the rope. Althoughalleles were present at only three loci, the defendant, Betty Ramcharan and Archie Harris wereall excluded as potential contributors.

Asserting that had this new evidence been elicited at the defendant's trial, the verdict wouldprobably have been more favorable to him, the defendant now seeks to have the judgmentvacated pursuant to Procedure Law § 440.10(1)(g).

Criminal Procedure Law § 440.10(1)(g), permits a court to vacate a judgment when

new evidence has been discovered since the entry of a judgment based upon averdict of guilty after trial, which could not have been produced by the defendant at the trial evenwith due diligence on his part and which is of such character as to create a probability that hadsuch evidence been received at the trial the verdict would have been more favorable to thedefendant; provided that a motion based upon such ground must be made with due diligenceafter the discovery of such alleged new evidence;

Thus, in order to satisfy the statute, the newly discovered evidence must meet sixcriteria: (1) it must be such as would probably change the result if a new trial were held; (2) itmust have been discovered after trial; (3) it must be such as could not have been discoverableprior to trial by the defendant's exercise of due diligence; (4) it must be material to the issue; (5)it must not be merely cumulative; and (6) it must not merely impeach or contradict evidencegiven at trial. See, e.g., People vTankleff, 49 AD3d 160, 179 (2nd Dept 2007); People v Salemi, 309 NY 208,216 (1955), cert. denied 350 US 950 (1956); People v Taylor, 246 AD2d 410,411 (1st Dept), leave denied 91 NY2d 978 (1998), citing People v Suarez, 98AD2d 678 (1st Dept 1983), leave denied 61 NY2d 766 (1984).

These new test results have undoubtedly been discovered after the defendant's trial.Additionally, they are unquestionably material to the issues raised at the trial and do not merelyimpeach or contradict evidence adduced at the defendant's trial. Similarly, the parties do notcontest that this evidence is not merely cumulative. While the People do aver that, because STRDNA testing was available at the Lab by the time of the defendant's second trial in 2004, theDNA results could have been discovered prior to that trial with the exercise of due diligence,Elaine Schwartz, a senior forensic scientist and supervisor of the Forensic Biology Unit at theWestchester County Department of Laboratories & Research, Division of Forensic Sciences,informs the court to the contrary. It is true that STR testing was available at the Lab prior to2004; indeed, it was [*13]available since 1999. However, acritical component of the recent DNA testing was the Y-filer test and the Lab's validation forsuch testing was not completed until the end of 2005. And, the Lab could not have used theY-filer testing prior to the completion of the validation process. Moreover, the Peopleacknowledge the "acute sensitivity of the modern DNA testing methodology used" in this case.See The People's Post-Hearing Memorandum of Law for the Denial of the Defendant'sMotion to Vacate his Murder Conviction under CPL 440.10(1), p. 56-57. For these reasons, thecourt finds that the 2009 DNA test results could not have been discovered prior to the 2003 trialor the April 2004 re-trial even had the defendant exercised due diligence. The defendant's claimtherefore rests on whether the test results would probably change the result if a new trial weregranted. In turn, that claim rests on just how probative the newly discovered DNA test results arein this case.

No one disputes the potential power of DNA evidence to convict the guilty and exoneratethe innocent. But, that power is found wanting in this matter for a number of reasons. To begin,the DNA testing here involved "touch DNA," which according to the Lab's forensic standardsmeans STR DNA testing of trace amounts of DNA material below 100 picograms where 200picograms is considered optimal, on a "high traffic" or commonly used item, a kitchen knife.See hearing Transcript, June 12, 2009, p. 527-30. When those trace amounts of DNAwere deposited on that knife remains unknown and unknowable. Likewise, how those traceamounts of DNA were deposited on the knife remains unknown and unknowable. Veritably, theforensic scientists cannot even determine the nature, e.g., skin cells, sweat cells, of theinvisible biological matter on the knife from which the DNA was extracted. More significantly,given the trace amounts of DNA material recovered, the conclusions that can be drawn from thetest results are constrained. For the most part, the scientists were only able to develop partialDNA profiles and mixture profiles dominated. In short, the DNA profiles of as many as fourdifferent individuals were recovered from the knife. Whether any are of the "real killers" as thedefendant urges or are simply from incidental users of that kitchen knife as the People maintaincannot be scientifically determined.

In sum, the DNA test results have a limited forensic value in this case standing alone. Whencoupled with the fact that the jury was well aware not only that there was absolutely no forensicevidence linking the defendant to the crimes, but that there was forensic evidence that otherswere indeed present,—an unidentified latent fingerprint was on the doorjamb leading tothe bathroom where Betty Ramcharan's body was found; three cigarette butts in the basement ofthe Harris home disclosed unidentified full STR DNA profiles; and latex gloves in the upstairshamper disclosed an unidentified partial STR DNA profile— its diminished significanceis apparent. Moreover, when the evidence of the defendant's guilt is considered, the significanceof the new DNA test results pales even further.

The primary evidence the People proffered in support of the defendant's guilt [*14]included his confession as well as admissions the defendant madeto Cherilyn Mayhew and his motive. It is true that the defendant contested, and is still contesting,the voluntariness and truthfulness of his confession. Nevertheless, the jury undoubtedly creditedit and a review of the contents of that videotaped confession made over five years after thecrimes occurred, discloses telltale signs of its general veracity. For example, and potent for itscontents and the fact that the defendant initiated the subject, at almost the end of his interviewwith the police, see transcript of defendant's confession, p. 71-2, the defendant says,"Can I ask you a question?" to which one of the officers replies, "uh huh." The defendant thenasks "Will you be honest with me? Did you all know I had something to do with it?" Followingthe same officer's "Huh," the defendant again asks "Did you all know I had something to do withit?" When the officer ultimately says "Yeah," the defendant queries, "Then why did it take youall so long to come get me?"

In addition, the defendant's admissions to Cherilyn Mayhew also provided powerfulevidence of the defendant's guilt. In 1997, after someone inadvertently bumped into thedefendant, he remarked to Mayhew that "This guy don't know who [he] messing with. You knowI will kill him because I did it before and I got away with it." See Trial Transcript, p.1650. Then, in November of 2000, the defendant told Mayhew about how he had gotten awaywith killing the "old man" and "the lady" and stated that he had "beat the old man" and that " thelady was screaming and . . . he stabbed them." See id. at 1654. The defendant alsoindicated that there was a dog in the house at the time, see id., and of course, ArchieHarris' dog had been found dead on November 21, 1996.

Significant as well is the proof regarding the defendant's motive for the killings: to avengeArchie Harris' alleged sexual assault against the defendant's mother, which reportedly occurredjust months before the murders. Cherilyn Mayhew testified that in November of 2000, thedefendant told her that "the man raped his mother and that nobody is going to do anything to hismother." See id. That motive was also revealed to the police during the defendant'sconfession. See transcript of defendant's confession, p. 5, 6, 28, 54. It too providescompelling evidence of the defendant's guilt.

Finally, it should be further noted that, to the extent the defendant argues that the alibievidence is newly discovered within the meaning of Criminal Procedure Law §440.10(1)(g), and interweaves it into a secondary basis to set aside the judgment, the court findsotherwise. To be sure, the alibi witnesses were known to the defense prior to the defendant's firsttrial and with minimal effort on his part, all of the specifics of their testimony could have beendiscovered. Indeed, that is an essential element underlying this court's conclusion that thedefendant was deprived of his Federal and State Constitutional right to effective assistance ofcounsel. See discussion supra.

Under these circumstances, it thus cannot be said that the newly discovered DNA test results"[a]re of such character as to create a probability that had such evidence been received at trial,the verdict would have been more favorable to the defendant," see § [*15]440.10(1)(g), and the defendant's motion to vacate the judgmenton this ground must be denied.

Actual Innocence

Pursuant to Criminal Procedure Law § 440.10(1)(h), the defendant also urges this courtto vacate the judgment and dismiss the indictment on the ground that the alibi evidence and thenewly discovered DNA evidence, either alone or taken together, establishes that he is actuallyinnocent of the crimes of which he was convicted. The People counter that a free-standing claimof actual innocence is not cognizable under New York law and in any event, the defendant hasfailed to establish his actual innocence.

To date, there is no appellate authority expressly holding that a free-standing claim of actualinnocence can be raised under § 440.10(1)(h). However, virtually all of the trial courts toexplicitly address the issue have concluded that such a claim may be raised. See, e.g., People v Cole, 1 Misc 3d531 (Sup Ct. Kings Co 2003); People v Wheeler-Whichard, 25 Misc 3d 690 (Sup Ct. Kings Co2009); People v Bermudez, Indictment Number 8759/91, Supreme Court, New YorkCounty, August 5, 2009, post hearing decision, 25 Misc 3d 1226(A). A number of other courts,like this one, have assumed, without deciding, that such a claim is cognizable, but conclude thatthe defendant did not establish that he is indeed actually innocent. See People v Bozella,25 Misc 3d 1215(A)(County Ct. Dutchess Co. 2009); see also People v Bryant, 25 Misc3d 1206(A)(Sup Ct. Bronx Co. 2009); People v Bellamy, 20 Misc 3d 1131(A)(Sup Ct.Queens Co. 2008). The Tankleff court also found that the nisi prius courtproperly denied the defendant's motion to vacate the judgment on the ground of actualinnocence, but did not decide whether "[N]ew York recognizes a free-standing claim of actualinnocence that is cognizable by, or which may be addressed within the parameters of, CPL440.10(1)(h)." People v Tankleff,49 AD3d 160, 182 (2nd Dept 2007).

Nevertheless where recognized, a defendant must, in order to establish actual innocence,demonstrate by clear and convincing evidence that he is in fact actually innocent of the crimes ofwhich he was convicted. See, e.g., Cole, 1 Misc 3d at 543; Bermudez, 25 Misc3d 1226(A). In other words, no reasonable juror could convict the defendant of the crime forwhich he was found guilty. Cole, 1 Misc 3d at 543. Under this standard, the defendanthas not met his burden.

Although as noted earlier, see ineffective assistance of counsel discussionsupra., the court has found the alibi witnesses credible, such a finding does not end theinquiry. For while each witness testified in ernest, the accuracy and/or import of that testimonywas not above reproach. Capt. Sharp had the incidents placing the defendant in North Carolinaoccurring, not on or around November 19 - 21, 1996, but near Thanksgiving of the followingweek and Remona McIver can only attest to the defendant's presence in [*16]Goldsboro, North Carolina on November 21, 1996. While CindyArtis swears she saw the defendant in North Carolina daily for the month of November 1996,because she and the defendant were dating then, she cannot recall the specific dates on whichany event occurred. Moreover, she stated that she stopped dating the defendant after she and thedefendant's mother quarreled over the telephone and the defendant's mother sought lawenforcement intervention. Thus, by her own accord, she would not have seen the defendant dailyfor the entire month of November 1996. In the same vein, Donald Evans' testimony was notentirely consistent. He admittedly advised the defendant's trial counsel in 2003 that he picked upthe defendant's mother at the bus station in Goldsboro on November 13, 1996, yet he was inMyrtle Beach that day and could not have done so. His concomitant statement to counsel that hesaw the defendant around Goldsboro every day in November of 1996 was also belied by Evans'admitted travels at that time. Further, although Mr. Evans' avers that the only time he could havemoved some lawn furniture with the defendant in North Carolina was on November 19, 1996,that date was reconstructed from Evans' calendar and his practice of recording events was notalways consistent. Moreover, Mr. Evans' initially told the defendant's trial attorney that hepurchased the furniture from the defendant's mother on November 1, 1996, which would havemeant that he moved that furniture with the defendant on November 5, 1996. Mr. Evans'calendar states "Wilson," a town only 30 minutes from Goldsboro for November 5 and 6, 1996.While such evidence may provide a reasonable doubt as to the defendant's guilt and undoubtedlyshould have been presented to the finder of fact at a trial, it does not clearly and convincinglyestablish to this court the defendant's actual innocence, particularly when examined in light ofthe People's evidence of his guilt.

As to the new DNA test results, the court has noted above their limited value under the factsand circumstances of this case, see newly discovered evidence discussion, supra.For those reasons, the court finds that it too does not meet the clear and convincing standard thatis required to establish actual innocence, a finding that is not altered regardless of whether theevidence is considered alone or in conjunction with the alibi evidence.

Thus, the defendant's motion to vacate the judgment pursuant Criminal Procedure Law§ 440.10(1)(h), on the ground of actual innocence is, assuming the cognizability of such aclaim, denied in full.

Conclusion

Accordingly, for all of the above-stated reasons, the defendant's motion to vacate thejudgment is granted to the extent indicated and a new trial is hereby ordered.

The foregoing shall constitute the decision and order of the court.

Enter.

Dated: December 31, 2009

White Plains, NY[*17]

Jeffrey A. Cohen, J.

County Court Judge

Footnote 1:Archie Harris was last seen alive on November 19, 1996, and his body, along with that of BettyRamcharan was discovered on November 21, 1996, thus fixing the time of death somewherebetween those two dates. The People maintain that the evidence permits a further refinement ofthe date on which the victims were killed to November 19, 1996.

Footnote 2:The videotape was not producedat the hearing. Chan stated that he gave it to appellate counsel, but it apparently was not inappellate counsel's files.