| People v Jenkins |
| 2011 NY Slip Op 04703 [84 AD3d 1403] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EricJenkins, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Ushir Pandit of counsel), for respondent.
Appeals by the defendant, by permission, (1) from an order of the Supreme Court, QueensCounty (Wong, J.), dated August 10, 2009, which denied, without a hearing, his motion pursuantto CPL 440.10 to vacate a judgment of the same court (Katz, J.), rendered December 1, 2003,convicting him of murder in the second degree and criminal possession of a weapon in thesecond degree, upon a jury verdict, based upon alleged violations of his rights pursuant toBrady v Maryland (373 US 83 [1963]), (2), as limited by his brief, from so much of anorder of the same court (Wong, J.) dated September 18, 2009, as denied, without a hearing, thosebranches of his separate motion which were pursuant to CPL 440.10 to vacate the judgmentbased upon the alleged recantation of testimony of Garvey Napoleon and ineffective assistance ofcounsel, and (3) from an order of the same court dated September 29, 2009 (Wong, J.), whichdenied, after a hearing, that branch of the separate motion which was pursuant to CPL 440.10 tovacate the judgment based upon the alleged recantation of testimony of Angelo Sean Gibson.
Ordered that the order dated August 10, 2009, is affirmed; and it is further,
Ordered that the order dated September 18, 2009, is reversed insofar as appealed from, on thelaw, and the matter is remitted to the Supreme Court, Queens County, before a different Justice,for a hearing and a new determination thereafter on those branches of the defendant's motionpursuant to CPL 440.10 which were to vacate the judgment based upon the alleged recantation oftestimony of Garvey Napoleon and ineffective assistance of counsel; and it is further,
Ordered that the order dated September 29, 2009, is affirmed.
At approximately 8:45 p.m. on April 11, 1992, Michael Reese was shot and killed while hestood at a bus-stop shelter on Guy R. Brewer Boulevard in Queens. On May 12, 1992, the policearrested the defendant. The defendant's first trial commenced in May 1993. The first trial endedafter the trial court declared a mistrial, based upon the prosecutor's failure to disclose acooperation agreement with one of the People's witnesses. The second trial commenced inSeptember 1993. At the first and second trials, Garvey Napoleon, the sole eyewitness, testifiedthat he knew the defendant previously from the [*2]neighborhoodwhere the shooting occurred. He further testified that, at the time of the shooting, he was on theopposite side of Guy R. Brewer Boulevard, and that he saw the defendant, along with two others,approach Reese and shoot him. At the conclusion of the second trial, the defendant wasconvicted of murder in the second degree and criminal possession of a weapon in the seconddegree. On direct appeal, this Court affirmed his convictions (see People v Jenkins, 230AD2d 806 [1996]). In May 2001 the United States District Court for the Eastern District of NewYork (hereinafter the District Court) granted the defendant's petition for a writ of habeas corpus.In April 2002 the United States Court of Appeals for the Second Circuit affirmed the DistrictCourt's determination (see Jenkins v Artuz, 294 F3d 284 [2002]).
In 2002, prior to the commencement of the third trial, Napoleon informed the prosecutor thata police detective had shown him a single photo of the defendant and had pressured him intofalsely testifying, both before the grand jury and at the first two trials, that he had known thedefendant prior to the shooting. Upon learning this information, defense counsel moved tosuppress Napoleon's identification of the defendant. After conducting an independent sourcehearing, the Supreme Court found that Napoleon had an independent source for his identificationof the defendant as the shooter. At his third trial, which commenced in January 2003, Napoleonagain testified, identifying the defendant as the shooter. Angelo Sean Gibson testified for the firsttime, and testified for the prosecution. Gibson testified that the defendant had admitted toshooting Reese. The defendant's third trial ended with a hung jury.
The defendant's fourth trial, at which Napoleon and Gibson testified, resulted in thedefendant's conviction of murder in the second degree and criminal possession of a weapon in thesecond degree. On direct appeal, this Court modified the judgment of conviction by reducing thesentences imposed, but otherwise affirmed (see People v Jenkins, 38 AD3d 566 [2007]).After the Court of Appeals denied the defendant's motion for leave to appeal from the decisionand order of this Court (see People v Jenkins, 8 NY3d 986 [2007]), the defendant filed asecond federal habeas corpus petition. The federal habeas proceeding was subsequently stayed.Thereafter, the defendant moved pursuant to CPL 440.10 to vacate the judgment of convictionbased upon, inter alia, (1) Gibson's recantation of his trial testimony, (2) ineffective assistance ofcounsel due to trial counsel's failure to contact two witnesses who could have provided alibi andother exculpatory evidence, and (3) Napoleon's recantation of his trial testimony. In May 2009the defendant filed a second motion pursuant to CPL 440.10 to vacate the judgment ofconviction, based upon the prosecutor's failure to disclose Brady material (see Bradyv Maryland, 373 US 83 [1963]) regarding Gibson and to correct Gibson's false testimonyregarding his cooperation agreement. In orders dated August 10, 2009, and September 18, 2009,respectively, the Supreme Court denied, without a hearing, the defendant's motions in theirentirety, except with respect to Gibson's recantation. After conducting a hearing, the SupremeCourt, in an order dated September 29, 2009, denied his motion to vacate the judgment basedupon Gibson's recantation.
The Supreme Court properly denied that branch of the defendant's motion which waspursuant to CPL 440.10 to vacate the judgment of conviction based upon Gibson's allegedrecantation of his trial testimony. In support of that branch of his CPL 440.10 motion, thedefendant presented Gibson's sworn written recantation, which was obtained by the defendant'sinvestigators. In his recantation, Gibson stated, contrary to his trial testimony, that the defendantnever made any admissions to him about shooting Reese. At the CPL 440.10 hearing, however,Gibson denied making those statements recanting his trial testimony. Additionally, at the hearing,he confirmed the truthfulness of his trial testimony regarding his conversations with thedefendant, in which the defendant allegedly admitted to shooting Reese. Therefore, as Gibson didnot recant his trial testimony regarding the defendant's admissions at the hearing, the SupremeCourt properly denied that branch of his CPL 440.10 motion which was based upon Gibson'srecantation (see People v Blake, 219 AD2d 730, 731 [1995]). Although Gibsonconfirmed the truthfulness of certain portions of the recantation, this evidence, even if true,would have, at most, merely impeached or been contradictory to his trial testimony.Consequently, it would not constitute newly discovered evidence warranting a new trial (seePeople v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956];People v Richards, 266 AD2d 714, 715 [1999]; People v Milea, 184 AD2d 791,792 [1992]).
Contrary to the defendant's contentions, the Supreme Court also properly denied his separatemotion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of Bradyviolations (see Brady v Maryland, 373 US 83 [1963]). The People have theobligation to disclose exculpatory evidence in their possession which is favorable to thedefendant and material to guilt or innocence (id.; see [*3]People v Scott, 88 NY2d 888, 890 [1996]; People vSteadman, 82 NY2d 1, 7 [1993]). Moreover, the duty of disclosing exculpatory materialextends to disclosure of evidence impeaching the credibility of a prosecution witness whosetestimony may be determinative of guilt or innocence (see Giglio v United States, 405 US150, 154-155 [1972]; People v Baxley, 84 NY2d 208, 213 [1994]). It is also clear that the"existence of an agreement between the prosecution and a witness, made to induce the testimonyof the witness, is evidence which must be disclosed under Brady principles" (People vNovoa, 70 NY2d 490, 496 [1987], quoting People v Cwikla, 46 NY2d 434, 441[1979]). Furthermore, the prosecutor has a duty to correct misstatements of a witness regardingthe consideration given for that witness's testimony (see People v Steadman, 82 NY2d at7; People v Savvides, 1 NY2d 554, 557 [1956]; People v Schwartz, 240 AD2d600 [1997]). Here, however, it is undisputed that Gibson's cooperation agreement was disclosedto the defendant. Moreover, there is no merit to the defendant's contention that undisclosedinformation regarding Gibson's prior dealings and negotiations with the District Attorney's officeat or during the first and second trials constitute Brady material, since this informationcould not be considered either exculpatory or material (see People v Fuentes, 12 NY3d259, 263 [2009]; People v Carnett, 19 AD3d 703 [2005]; People v Rushin, 172AD2d 571, 572 [1991]). Based on our review of the record, the defendant's contention that theprosecutor failed to correct Gibson's alleged misstatements regarding the consideration given forhis testimony is also without merit.
However, the Supreme Court erred in denying, without a hearing, that branch of thedefendant's motion which was pursuant to CPL 440.10 to vacate the judgment of convictionbased upon Napoleon's recantation of his trial testimony. In his recantation, Napoleon, who wasthe sole eyewitness to the shooting, stated that he could not identify the shooter and that hisidentification of the defendant as the shooter was the product of improper police pressure.Although the Supreme Court found Napoleon's recantation to be entirely incredible, the totalityof the circumstances presented here demonstrate that, in the absence of a hearing, such adetermination was unwarranted.
Recantation evidence is considered to be the most unreliable form of evidence (seePeople v Shilitano, 218 NY 161, 170 [1916]). "Consideration of recantation evidenceinvolves the following factors: (1) the inherent believability of the substance of the recantingtestimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) theexistence of evidence corroborating the trial testimony; (4) the reasons offered for both the trialtestimony and the recantation; (5) the importance of facts established at trial as reaffirmed in therecantation; and (6) the relationship between the witness and defendant as related to a motive tolie" (People v Wong, 11 AD3d 724, 725-726 [2004], citing People v Shilitano,218 NY at 170-172 [2004]).
Napoleon's recantation is not incredible on its face. In this regard, the credibility of hisstatement that he could not recognize the shooter, a person who was a stranger to him, issupported by portions of his trial testimony. At trial, he stated that, at the time of the shooting, hewas on Guy R. Brewer Boulevard selling drugs and that he was "focusing" all around at"everything out there" because there was a police station nearby. Additionally, he testified that hewas talking on a pay phone to a friend when he saw the first shot. He also stated that he saw thefirst and third shots, and the defendant standing over Reese as he fired the third shot. However, ina prior proceeding, Napolean testified that he only heard the last two shots, which is also what hestated in his recantation. Although he also testified that he "got a good look at [the defendant] ashe was walking towards [Reese]," the prosecutor stipulated that, at the second trial in 1993,Napoleon was asked "were you able to see the faces of these three people?" and he answered:"Not at the time when they were walking but when they reached the bus stop, yes." Therefore, histrial testimony indicates that his ability to identify the shooter may have been compromised sincehe was looking out for the police while selling drugs and talking on the pay phone to his friend.Moreover, Napoleon's difficulty in identifying the shooter was further increased since thedistance between the southwest corner of 134th Avenue, where he was standing, and the bus stopon the east side of Guy R. Brewer Boulevard, where Reese was shot, was approximately 128 feet.
The undisputed evidence of police misconduct also indicates that Napoleon had a motive tolie at trial. In this regard, it has been established that a police detective pressured him intotestifying falsely, before the grand jury and at the first two trials, that he knew the defendant priorto the shooting. It was not until 2002, almost 10 years after the defendant's initial conviction, thatNapoleon admitted that this portion of his testimony had been false. In contrast, the record doesnot indicate that Napoleon had a motive to lie in his recantation or that he had any relationshipwith the defendant which would cause him [*4]to change histestimony. Moreover, Napoleon was the People's sole eyewitness, and his testimony identifyingthe defendant as the shooter was central to the People's case. Under these circumstances, theSupreme Court's denial, without a hearing, of that branch of the defendant's CPL 440.10 motionwhich was based upon Napoleon's recantation was an improvident exercise of discretion.Therefore, the matter must be remitted to the Supreme Court, Queens County, for a hearing onNapoleon's recantation (see People v Shilitano, 218 NY at 170-171; People vRodriguez, 88 AD2d 890, 891 [1982]), and a new determination thereafter on that branch ofthe defendant's motion which was pursuant to CPL 440.10 to vacate the judgment based on thatrecantation. Since the Hearing Justice evinced a predisposition to reject or discredit thedefendant's evidence with respect to the issue of witness recantation, the hearing shall be heldbefore a different Justice.
Additionally, the Supreme Court erred in denying, without a hearing, that branch of thedefendant's motion pursuant to CPL 440.10 which was to vacate the judgment of conviction onthe ground that he was denied the effective assistance of counsel due to his trial counsel's failureto investigate two additional alibi witnesses. A defendant's right to effective assistance of counselincludes defense counsel's reasonable investigation and preparation of defense witnesses (seePeople v Bennett, 29 NY2d 462, 466 [1972]). Consequently, the failure to investigatewitnesses may amount to ineffective assistance of counsel (see People v Nau, 21 AD3d568, 569 [2005]; People v Bussey, 6 AD3d 621, 623 [2004]; People v Fogle, 307AD2d 299, 301 [2003]). In support of this branch of his motion, the defendant submitted theaffidavits of the two potential witnesses, in which they stated that his trial counsel failed tocontact or interview them. Significantly, in their affidavits, each witness recounted theirrecollection of the events surrounding the shooting, and stated that the defendant was inside oftheir family's apartment at the time of the shooting.
Since that branch of the defendant's motion which was based on ineffective assistance of trialcounsel was supported by affidavits of witnesses who could have testified in support of an alibidefense, and it cannot be determined whether defendant's trial counsel had strategic or tacticalreasons for failing to investigate them or failing to call them to testify, the Supreme Court erredin denying the motion without first conducting an evidentiary hearing (see People v Nau,21 AD3d at 569; People v Fogle, 307 AD2d at 301; People v Castricone, 224AD2d 1019, 1020 [1996]). Accordingly, the matter must also be remitted to the Supreme Court,Queens County, for that purpose and for a new determination thereafter on that branch of thedefendant's motion.
The defendant's remaining contention, raising a claim of actual innocence, is not properlybefore this Court since he did not raise it before the Supreme Court. Therefore, we decline todecide the issue of whether a free-standing claim of actual innocence is cognizable under CPL440.10 (1) (h) (see People v Tankleff, 49 AD3d 160, 182 [2007]). Skelos, J.P.,Dickerson, Hall and Sgroi, JJ., concur.