| People v Jones |
| 2013 NY Slip Op 05547 [109 AD3d 402] |
| August 6, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Clifford Jones, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), forrespondent. Weil Gotshal & Manges LLP, New York (Howard B. Comet of counsel), for amicuscuriae.
Order, Supreme Court, New York County (James A. Yates, J.), entered on or aboutOctober 19, 2010, which denied defendant's CPL 440.10 motion to vacate a judgment ofconviction of the same court (Alfred Kleiman, J.), rendered July 6, 1981, affirmed.
Defendant has not established that the newly discovered DNA evidence "is of suchcharacter as to create a probability that had such evidence been received at the trial theverdict would have been more favorable to [him]" (CPL 440.10 [1] [g]). Defendant wasconvicted of the murder of one person and the rape of another person during a 1980incident. Thirty years later, mitochondrial DNA testing of 3 of 18 hairs retrieved from ahat left at the scene by the perpetrator, and of fingernail scrapings from the murdervictim, indicated that neither the tested hairs nor the fingernail scrapings weredefendant's. We find, however, that a new trial would not be warranted even if suchevidence were accepted as proof that the hairs and scrapings originated from a person orpersons other than defendant.
The sole identifying witness was the rape victim. Although defendant points out afew weaknesses in the People's case (such as the victim's drug use), her lineup andin-court identifications of defendant were unusually strong and reliable. She observeddefendant and conversed with him for about 15 minutes under good lighting conditions,at a time when defendant had not yet displayed a weapon and the situation had not yetbecome stressful. She provided a detailed description that included the condition ofdefendant's teeth (one tooth, she testified, was "chipped and he had a gap between histeeth"). At the close of the People's case, defendant was directed, over objection, todisplay his teeth to the jury. Tellingly, defense counsel made no mention of the teethduring his summation, but the prosecutor, in his closing argument, [*2]highlighted this point, without objection from thedefense.[FN1]A police report in the record, dated June 2, 1980 (the date of the crime), states that thevictim described the perpetrator as having "spaces between teeth [and] one tooth chippedin front."
Given the strength of the evidence, the two portions of the DNA evidence, evenwhen viewed collectively, would not have created the probability of a more favorableverdict. There are multiple explanations for the presence of hairs other than defendant'son the hat found at the scene. Most obviously, the hairs could have belonged to a personother than the perpetrator who wore the hat before the incident. In fact, given that thelaboratory that tested the hairs on defendant's behalf noted in its report that the hairs werenot all of the same color, and that only 8 of the 18 hairs were curled, there is good reasonto believe that the hairs did not all come from the same individual.[FN2]Moreover, as the People point out, it is not clear from the 1981 laboratory report'sambiguous description of certain hairs (including those tested by defendant) as beingfrom "under [the] hat band" that the hairs came from inside the hat (and, thus, from aperson who wore it); indeed, the same report described other hairs (not tested bydefendant) as being from "inside" the hat. In this regard, the hat was given to the policeafter the crimes by a civilian who had handled it. As for the fingernail scrapings, the trialevidence did not establish that the murder victim scratched his assailant, and there werepotential alternative sources for the DNA material under his fingernails.
Defendant urges that a hearing was required to resolve the parties' factual disputesconcerning the reliability of the mitochondrial DNA evidence. In deciding a CPL 440.10motion, a hearing to develop additional facts is not "invariably necessary"; rather, CPL440.30 contemplates that a court will make an initial determination on the writtensubmissions whether the motion can be decided without a hearing (People vSatterfield, 66 NY2d 796, 799 [1985]). Here, we find that even if the reliability ofthe evidence is assumed, defendant still did not establish a legal basis for ordering a newtrial. Accordingly, the factual disputes in this case were not material, and defendant wasnot prejudiced by the absence of a hearing.
In taking the position that the motion should not have been denied without a hearing,the dissent relies on the People's failure to submit in admissible form their expert analysisimpeaching the integrity of the testing procedures performed on the hairs by thecommercial laboratory defendant engaged and the conclusiveness of the results of thattesting.[FN3]In so doing, [*3]the dissent simply assumes that theresults of the testing of the hairs from the hat proffered by defendant, taken at face value,would have "create[d] a probability that . . . the verdict would have beenmore favorable to the defendant" had those results been placed in evidence at trial (CPL440.10 [1] [g]). As previously noted, however, the test results, assuming their accuracyfor present purposes, prove, at most, only that 3 of the 18 hairs retrieved from the hat thatthe perpetrator wore while committing the crimes came from an individual other thandefendant. Needless to say, even if the testing results are taken at face value (as we mustdo at this juncture), this is far from conclusively exculpatory evidence.
Contrary to the dissent's deprecation of the rape victim's identification of defendant,this was a very strong eyewitness identification case. The victim interacted with theperpetrator for 15 minutes in a transaction that was initially nonviolent and consensual,and she observed the perpetrator's face at close quarters in broad daylight. Anydiscrepancies in the victim's descriptions of the perpetrator (for example, concerning hishairstyle or skin tone) were of the kind that ordinarily arise in criminal trials; the defenseargued these points to the jury, which found them unpersuasive. Moreover, far fromlacking corroboration, the victim's identification of defendant was corroborated by theappearance of his teeth when displayed at trial. Viewing the evidence in the light mostfavorable to the People, we must infer from the jury's verdict that the appearance ofdefendant's teeth was consistent with the descriptions the victim gave to the police and inher testimony.[FN4]
Given the strength of the evidence against defendant, there is no reason to believethat the results of testing 3 strands of hair (out of 18 retrieved from the hat worn by theperpetrator) would have resulted in a verdict more favorable to defendant had thoseresults been received into evidence at trial.[FN5]Again, since the source of the hairs could have been anyone who wore or handled the hatbefore the crimes were committed, or a person who handled the hat thereafter (includingthe civilian who turned it over to the police), the perpetrator was not necessarily thesource of the hairs that were tested (see Steward v Grace, 362 F Supp 2d 608,622 [ED Pa 2005] [defendant was not entitled to DNA testing of a hair sample from ajacket worn by the perpetrator during the commission of the crime because "the haircould have ended up on the jacket in numerous ways either before or after the murder"];People v Smith, 245 AD2d 79 [1st Dept 1997] [even if DNA testing would showthat semen from a rape kit was not defendant's, that result would not have affected theverdict because the victim testified that she had engaged in intercourse with herboyfriend shortly before the rape and that she did not know whether defendant ejaculatedduring the rape], lv denied 92 NY2d 861 [1998]). Moreover, to reiterate, 15[*4]of the hairs from the hat were not tested—notdue to any objection by the People, which provided all 18 hairs to defendant, butpresumably by choice of his counsel—and there is no reason to assume thatdefendant was not the source of some or all of the untested hairs (see Brown vMississippi, 2011 WL 4386453, *5, 2011 US Dist LEXIS 106907, *15 [ND Miss2011] [DNA testing did not exculpate petitioner where testing of several hairs "producedinconclusive results, and many others were not tested at all" (emphasisdeleted)]).[FN6]
Finally, the dissent overlooks the fact that CPL 440.10 (1), by providing that the trialcourt "may" grant a motion to vacate a conviction based on newly discovered evidence,entrusts the determination of such a motion to the court's discretion (see People v Samandarov, 13NY3d 433, 436 [2009] [Court of Appeals reviews decisions to deny hearings onCPL article 440 motion "for abuse of discretion"]). On this record, we find that the trialcourt providently exercised its discretion in summarily denying defendant's motion.Concur—Gonzalez, P.J., Friedman and DeGrasse, JJ.
Moskowitz and Freedman, JJ., dissent in a memorandum by Freedman, J., as follows:I respectfully dissent, because I believe the motion court should have granted defendantfurther DNA testing and held an evidentiary hearing before determining his motion underCPL 440.10. In 1981, defendant was convicted in connection with a heinous criminalevent. He served three decades in prison before being paroled. He has consistentlymaintained his innocence and desire to clear his name. In 2010, new DNA tests indicatedthat defendant was not the source of hair samples that were obtained from theperpetrator's hat. This evidence, coupled with the fact that the People's case againstdefendant relied solely on a single eyewitness identification some four months after theincident, was, I believe, sufficient for the motion court to grant the application for furtherDNA testing and an evidentiary hearing.[FN7]
Defendant was convicted of raping a woman, R, and stabbing to death a man in anapartment building on the afternoon of June 2, 1980. R, a heroin addict who had takenthe drug earlier that day and was supporting herself as a prostitute, had entered thebuilding with the assailant to find a place to engage in sexual activity. When policeofficers arrived at the crime scene after the assailant fled, R described him to the officersas a brown-complexioned male wearing a baseball cap, with an Afro hairstyle, a chippedtooth, and a gap between his teeth. The blood-covered cap that the assailant wore wasrecovered from the ground floor of the building.
R was treated at a hospital, where a rape kit consisting of fluids and other physicalevidence was prepared. When police officers questioned R at the hospital, she at onepoint repeated that her assailant had an Afro hairstyle but at another point said he worebraids.[*5]
On September 24, 1980, R identified defendantfrom a photo array. On October 25, 1980, defendant voluntarily appeared at a precincthouse and participated in a lineup. On that day, defendant wore neither an Afro hairstylenor braids. R identified him at the lineup. At a pretrial suppression hearing, Racknowledged that she was under the influence of heroin when she made bothidentifications.
The trial commenced in April 1981. The People were not able to introduce anyphysical evidence connecting defendant with the rape or murder. In fact, none of theitems introduced into evidence, which included the perpetrator's baseball cap, the bloodyknife, blood scrapings, and the rape kit, connected defendant with the crimes. The Peoplerelied solely on R's courtroom identification of defendant as the assailant. At the People'srequest, as part of its case, and over defense counsel's objection, defendant showed histeeth to the jury. The trial record does not include any description of defendant's teeth.
On April 15, 1981, the jury found defendant guilty of first-degree rape,second-degree murder, and first-degree attempted robbery, and in July 1981, he wassentenced to an indeterminate prison term of 18 years to life on the murder count andconcurrent lesser sentences on the remaining counts. This Court affirmed, and the Courtof Appeals denied leave to appeal (91 AD2d 874 [1st Dept 1982], lv denied 58NY2d 1119 [1983]). He served nearly 30 years before being paroled.
In 2008, defendant moved under CPL 440.30 (1-a) (a) (1) for postconviction forensicDNA testing of any existing physical evidence. In response, the People searched theirrecords and reported that the majority of the physical evidence, including the rape kit andthe knife, had been destroyed. However, the People located and produced two pieces ofphysical evidence, namely, 18 fragments of human hair from the assailant's baseball capand scrapings from under the murder victim's fingernails. Thereafter, the Peoplepermitted defendant to engage a private laboratory at his own expense to test three hairfragments using mitochondrial DNA (mtDNA) analysis, a sophisticated identificationtechnique that had been developed after defendant's trial and conviction. This processanalyzes the genetic material found in the mitochondria within a subject's cells, whichmaterial is inherited directly from the subject's mother. Under ideal conditions, mtDNAtesting can restrict the possible source of genetic material to one individual and his or hermaternal ancestors.
The laboratory compared the three hair fragments from the baseball cap with asample of defendant's hair. In a February 2010 report, the laboratory concluded thatwhile all three fragments probably came from the same person, the hair could not havebeen defendant's.
In April 2010, defendant moved under CPL 440.10 for an order vacating hisjudgment of conviction and directing a new trial on the ground that the mtDNA testresults constituted newly discovered exculpatory evidence that could with reasonableprobability have changed the verdict. Defendant argued further that R's identification attrial was unreliable and outweighed by the mtDNA evidence.
Defendant also relied on the Office of the Chief Medical Examiner's new DNA testof the fingernail clippings from the murder victim. The test revealed that one clippingcontained DNA from the victim and at least one unidentified person, but none ofdefendant's DNA. Three other fingernail clippings indicated DNA that was consistentwith the victim's, but the examiner could not draw any conclusion about the source ofany other DNA.
In opposition, the People argued that the laboratory's mtDNA analysis was flawedand its results were inconclusive. The People stated in their papers that two experts hadreviewed the [*6]laboratory's findings at the prosecutor'srequest and found that the laboratory's testing methodology deviated from acceptedscientific protocols and the laboratory manipulated the data to reach a favorableconclusion for defendant. No affidavits by the experts were submitted.
In its October 2010 order, the motion court summarily denied the CPL 440.10motion without conducting an evidentiary hearing, on the ground that defendant's newevidence probably would not have produced a different trial result (see People vSalemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]).Accepting the People's criticisms of the mtDNA tests, the court rejected the significanceof the results, finding they had "limited evidentiary value" and failed to exoneratedefendant. The court added that even if the results showed that the three tested hairs werenot defendant's, the hairs "[did] not constitute a common pool of evidence" because 15other hairs from the hat were not tested. As to defendant's argument that the DNAevidence undermined R's credibility, the court noted that R had identified defendant morethan once and given a description that, despite some discrepancies, "capture[d] hisfeatures in a general way."
Defendant's conviction was based solely on an identification by a single witnessnearly four months after the event. That witness provided various inconsistentdescriptions of the perpetrator immediately after the incident. Defense counsel exploredsome of the weaknesses of the identification at trial. However, the physical evidence didnot connect defendant to the crimes, and another witness to the crime was unable toidentify defendant as the perpetrator.
New York courts have recognized the unreliability or fallibility of eyewitnessidentification and the danger of allowing it to be the sole basis for a criminal conviction(see e.g. People v LeGrand,8 NY3d 449 [2007]; Peoplev Abney, 13 NY3d 251 [2009]; People v Russell, 99 AD3d 211, 215 [1st Dept 2012];State v Henderson, 208 NJ 208, 27 A3d 872 [2011]).
CPL 440.10 (1) (g) provides for vacatur of a conviction based on newly discoveredevidence "of such character as to create a probability that had such evidence beenreceived at the trial the verdict would have been more favorable to the defendant." If thedefendant produces post-conviction evidence favorable to him or her, CPL 440.30 (5)requires the court to "conduct a hearing and make findings of fact essential to thedetermination [of the motion]." Only in limited circumstances where the defendant hasfailed to make a prima facie showing can the motion be summarily denied.
Here, defendant met his initial burden by offering sworn evidence of mtDNAanalysis showing that the hairs from the perpetrator's hat were not his. The rebuttaloffered by the People, in the form of an attorney's affirmation containing hearsaystatements questioning the reliability of the mtDNA test results, is insufficient todiscredit defendant's evidence. The question whether, as the People claim, thelaboratory's procedures were flawed or its results were inconclusive is an issue of fact,and should not have been summarily determined. Rather, the parties should have beenprovided the opportunity to present expert testimony to explain or challenge mtDNAtesting and the laboratory's specific test procedures and results. Accepting defendant'sproposal to have the remaining hairs tested would have produced extremely usefulinformation for the court.
Footnote 1: The prosecutor arguedto the jury: "She described him down to his teeth. It's in the record; spaces between histeeth and a chipped tooth.
"Well, the defendant stood up before you this morning and he opened his mouth andyou saw, I submit, the spaces between his teeth. This is part of the record; it's evidencelike any other evidence."
Footnote 2: In addition, onenonhuman (probably feline) hair was found on the hat.
Footnote 3: While the People'sobjections to the testing results proffered by defendant (to which defendant offered noexpert rebuttal) would have sufficed to support summary denial of the motion had theybeen presented by way of an expert affidavit, the dissent is correct to the extent it arguesthat the People's expert analysis cannot provide the basis for denying the motion until itis presented in admissible form.
Footnote 4: Notably, defendant wasdirected to display his teeth to the jury only after the court itself first viewed defendant'steeth.
Footnote 5: We note that the dissentdoes not rely on the results of the testing of the material retrieved from the fingernails ofthe murder victim.
Footnote 6: It is not clear why thedissent believes that Supreme Court should have ordered "further DNA testing." ThePeople voluntarily provided defendant with all 18 hair samples from the hat.
Footnote 7: The Innocence Project,which provides legal and related services to indigent prisoners who may be exoneratedby post-conviction DNA evidence, has filed a brief as amicus curiae on behalf ofdefendant.