| People v Whitley |
| 2009 NY Slip Op 02652 [61 AD3d 423] |
| April 7, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Darryl Whitley, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), forrespondent.
Order, Supreme Court, New York County (William A. Wetzel, J.), entered on or about April16, 2007, which denied defendant's CPL 440.10 motion to vacate a judgment of the same court(Laura E. Drager, J.), rendered April 18, 2002, convicting him, after a jury trial, of murder in thesecond degree and sentencing him to a term of 22 years to life, unanimously affirmed.
The court properly denied, on the merits, defendant's CPL 440.10 motion assertingineffective assistance of counsel. We conclude that defendant received effective assistance underboth the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714[1998]; Strickland v Washington, 466 US 668 [1984]).
Defendant's principal claim is that when the testimony a prosecution witness gave atdefendant's first trial was admitted on retrial due to the witness's assertion of his FifthAmendment privilege, defendant's counsel should have sought to introduce evidence that thewitness had recanted his prior testimony between the two trials. "Had trial counsel attempted toget the statements before the jury, he would undoubtedly have been rebuffed, and we cannotfault him for not trying" (People vStultz, 2 NY3d 277, 287 [2004]). Counsel's failure to seek admission of the recantationstatements was objectively reasonable.
As we stated in an alternative holding on defendant's direct appeal (14 AD3d 403, 405[2005], lv denied 4 NY3d 892 [2005]), the recantation evidence was inadmissible(Mattox v United States, 156 US 237, 244-250 [1895]). Mattox remains part ofthis State's evidentiary law and it is applicable to the present fact pattern (see Prince,Richardson on Evidence § 8-111 [Farrell 11th ed]). Since the witness had becomeunavailable, defendant was unable to lay a foundation for the admission of the recantations byasking the witness about them. The fact that the recantations were made in open court on therecord did not satisfy the foundational requirement; in this case, as discussed below, the need toexplore with the witness the precise nature of the purported recantation was particularly acutesince the recantation statements were unclear and inconsistent.
Furthermore, the recantations were not admissible because of defendant's right to confrontwitnesses or his right to present a defense, and counsel's failure to present such theories was alsonot objectively unreasonable. Mattox does not support defendant's Confrontation Clauseargument. Moreover, the recantations not only lacked "sufficient indicia of reliability"(People v Stultz, 2 NY3d at 286), but "there is overwhelming reason to question thestatements' genuineness" (Bagby v Kuhlman, 932 F2d 131, 136 [2d Cir 1991], certdenied 502 US 926 [1991]). In addition to the principle that "[t]here is no form of proof sounreliable as recanting testimony" (People v Shilitano, 218 NY 161, 170 [1916]), wenote that the witness's first attempt at recantation was cast in terms of a lack of recollection, andthe witness contradicted himself about whether he lacked recollection of making astatement to a detective, of the contents of that statement, or of the factsunderlying the statement. Then, in a second attempt at recantation made through hisattorney, he no longer claimed a lack of recollection, but instead claimed he had been uncertainall along about the matters to which he had testified at the first trial.
We also find that, regardless of whether defendant's counsel should have sought to introducethe recantation evidence, or whether it should have been admitted, its absence did not deprivedefendant of a fair trial or cause him any prejudice. As we stated in an alternative holding on thedirect appeal, "there is no reasonable possibility that its introduction would have affected theverdict" (14 AD3d at 405). The recantations lacked probative value, and, as we observed indiscussing the weight of the evidence supporting the conviction, even though the witnesses'credibility was challenged, "defendant admitted his guilt to four persons on separate occasions.The accounts of the four men generally harmonized with each other, as well as with otherevidence, and there was no evidence of collusion" (id. at 404).
Defendant's other ineffective assistance claims are without merit. The record establishes thata third-party culpability defense would have been unavailing because of documentary evidencethat the alternate suspect was hospitalized at the time of the crime, and that further investigationof such a defense was not warranted. The motion court properly relied, among other things, oncounsel's assertions regarding his general practice (see Carrion v Smith, 549 F3d 583,585, 590 [2d Cir 2008]) in correctly determining that defense counsel provided appropriateadvice to his client regarding the possibility of pleading guilty (see Purdy v UnitedStates, 208 F3d 41 [2d Cir 2000]). Concur—Andrias, J.P., Friedman, McGuire andMoskowitz, JJ.