| People v Seeber |
| 2012 NY Slip Op 03237 [94 AD3d 1335] |
| April 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Katherine M.Seeber, Respondent. |
—[*1] Weil, Gotshal & Manges, L.L.P., New York City (Vernon S. Broderick of counsel) andOstrer & Hoovler, P.C., Chester, for respondent. David Loftis, The Innocence Project, New York City and Foley & Lardner, L.L.P., New YorkCity (Jonathan Friedman of counsel), for The Innocence Project, amicus curiae. Janet DiFiore, President, District Attorneys Association of the State of New York, New YorkCity (Morrie I. Kleinbart of counsel), for District Attorneys Association of the State of NewYork, amicus curiae.
Egan Jr., J. Appeal from an order of the County Court of Saratoga County (Scarano, J.),entered July 14, 2011, which granted defendant's motion pursuant to CPL 440.10 to vacate thejudgment convicting defendant upon her plea of guilty of the crimes of murder in the seconddegree and burglary in the third degree, after a hearing.
In February 2000, defendant and her then boyfriend, Jeffrey Hampshire, were indicted andcharged with three counts of murder in the second degree in connection with the strangulationdeath of defendant's 91-year-old stepgreat-grandmother. Prior to trial, the People furnisheddefendant with a report prepared by State Police forensic scientist Garry Veeder, wherein Veederopined that fibers found on the duct tape recovered from the victim's mouth were "identical inmacroscopic and microscopic appearance" and "consistent with having originated from the samematerial as" a pair of black suede gloves that defendant had worn on the day in question.According to defense counsel, this report directly controverted defendant's version of the eventsand undermined an otherwise viable defense to felony murder. Accordingly, counselrecommended that defendant plead guilty.
Defendant took counsel's advice and, in January 2001, pleaded guilty to murder in the seconddegree (see Penal Law[*2]§ 125.25 [3] [felonymurder]) in full satisfaction of the February 2000 indictment, as well as burglary in the thirddegree (see Penal Law § 140.20) in satisfaction of a subsequent indictmentstemming from an unrelated incident. Hampshire, however, elected to proceed to trial and wasacquitted. County Court denied defendant's subsequent motion to withdraw her plea andthereafter imposed the agreed-upon concurrent sentences. Upon appeal, this Court affirmed (People v Seeber, 4 AD3d 620[2004]), as did a divided Court of Appeals (People v Seeber, 4 NY3d 780 [2005]).
Several years later, investigations conducted by the State Police and the Office of theInspector General revealed that Veeder failed to follow laboratory protocols and engaged inconduct that "raise[d] serious questions about [his] competence as a forensic scientist and thequality and integrity of his work"—specifically with respect to various fiber evidenceanalyses he performed between 1993 and 2008.[FN1]As a result, defendant moved to vacate the judgment of conviction alleging, among other things,that the People obtained her plea through fraud or misrepresentation, that she was deprived ofdue process of law and that she was denied the effective assistance of counsel (see CPL440.10 [1] [b], [h]). Following a hearing, County Court granted defendant's motion, vacated thejudgment of conviction and ordered a trial. This appeal by the People ensued.[FN2]
Initially, to the extent that defendant sought to vacate her judgment of conviction pursuant toCPL 440.10 (1) (f) and/or (g), County Court properly denied her motion as the cited subdivisionsare, by the plain language of the statute, limited to instances where the underlying judgment ofconviction was obtained following a trial. Defendant's attempt to seek relief under CPL 440.10(1) (h) is equally unavailing because no Brady violation occurred. A Bradyviolation requires, among other things, a showing that the People suppressed the evidence atissue (see People v Fuentes, 12NY3d 259, 263 [2009]). Here, there is no question that defendant was provided with a copyof the relevant fiber analysis report, and the People certainly cannot be said to have "suppressed"Veeder's procedural shortcomings and professional misconduct when such information did notcome to anyone's attention until nearly a decade after defendant's plea was obtained (see People v Ortega, 40 AD3d394, 395 [2007], lv denied 9 NY3d 992 [2007]). Nor are we persuaded thatdefendant was denied the effective assistance of counsel in this regard. We do, however, believethat defendant stated a viable claim for relief under CPL 440.10 (1) (b) and, further, that CountyCourt did not abuse its sound discretion (see generally People v Blackman, 90 AD3d 1304, 1311 [2011]; People v Barber, 13 AD3d 898,902 [2004], lv denied 4 NY3d 796 [2005]) in granting her motion to vacate the judgmentof conviction upon this ground. Accordingly, we affirm County Court's order.
Pursuant to CPL 440.10 (1) (b), a judgment of conviction may be vacated upon the groundthat it "was procured by duress, misrepresentation or fraud on the part of the court or a prosecutoror a person acting for or in behalf of a court or a prosecutor" (emphasis added). To besure, there is absolutely nothing in the record to suggest that either the Saratoga County DistrictAttorney's Office or the State Police were aware—prior to the time that defendant enteredher guilty plea—that Veeder cut certain procedural corners in various fiber analyses that heperformed during the relevant time period, nor are we suggesting that either the prosecutor or the[*3]State Police—save Veeder—did anythingimproper here. It is equally clear, however, that Veeder routinely failed to follow appropriateprocedural protocols in conducting fiber analyses and, in this case, effectively overstated theresults thereof.[FN3]In our view, that overstatement—born of insufficient training and an admitted failure toadhere to established procedural protocols—constitutes a misrepresentation by anindividual acting on behalf of the People within the meaning of CPL 440.10 (1) (b). Further,regardless of his motivation for failing to follow established procedures, Veeder's misconductdirectly relates to the fiber analysis reports generated here and, as such, cannot be characterizedas unrelated or collateral bad acts (compare People v Longtin, 245 AD2d 807, 809-810[1997], affd 92 NY2d 640 [1998], cert denied 526 US 1114 [1999]; People vJohnson, 226 AD2d 828, 829 [1996], lv denied 88 NY2d 987 [1996]).
While the People's knowledge of the misconduct or misrepresentation at issue indeed is arelevant consideration in determining whether a Brady violation has occurred (see e.g.People v Ortega, 40 AD3d at 395; People v Roberson, 276 AD2d 446, 446 [2000],lv denied 96 NY2d 805 [2001]; People v Muniz, 215 AD2d 881, 883-884[1995]), such knowledge (or here, the lack thereof) is not dispositive of whether amisrepresentation has occurred within the meaning of CPL 440.10 (1) (b). Veeder—as anemployee of the State Police—qualifies as a person acting on behalf of the prosecution(see People v Santorelli, 95 NY2d 412, 421 [2000]), and it is clear that the fiber analysishe performed here was, at the very least, misleading. That, in our view, is sufficient to afforddefendant a basis for relief under CPL 440.10 (1) (b)—notwithstanding the fact that thePeople admittedly were unaware of Veeder's underlying misconduct.[FN4]
Indeed, [*4]requiring a defendant to demonstrate that thePeople were aware of the subject misrepresentation in order to prevail under CPL 440.10 (1) (b)potentially sets the stage for a situation where a truly innocent person, whose conviction wasobtained solely upon the basis of admittedly falsified, manufactured or otherwise unreliableevidence, might remain in prison simply because the People were unaware—at the time thedefendant's plea was obtained—of misfeasance on the part of a law enforcementrepresentative. Such a result surely is not what the Legislature intended when it enacted CPL440.10 (1) (b).[FN5]
As the proper interpretation and application of CPL 440.10 (1) (b) has implications farbeyond the matter now before us, the construction to be afforded the statute necessarily is ourprimary concern. That said, the facts and history of this particular case also give us pause.Although defendant's conviction ultimately was affirmed by both this Court and a divided Courtof Appeals (People v Seeber, 4AD3d 620 [2004], affd 4 NY3d780 [2005]), we cannot overlook the fact that the two dissenting Judges expressed seriousconcerns regarding the factual sufficiency of defendant's plea (People v Seeber, 4 NY3d780, 785 [2005, Robert Smith, J., dissenting])—long before Veeder's misconduct wasdiscovered—noting that, in light of the charges then pending against her, defendant maywell have elected "to plead guilty to a crime she did not commit" (id.).[FN6]Indeed, defendant asserts, and her original defense counsel confirms, that she was persuaded toplead guilty after being confronted with the contents of Veeder's report—a report that wenow know, at the very least, overstated its ultimate conclusion. Under these circumstances,County Court properly exercised its discretion by vacating the judgment of conviction andpermitting the matter to proceed to trial.
Rose, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed.
Footnote 1: Shortly after being approachedby the State Police in connection with the investigation, Veeder committed suicide.
Footnote 2: Defendant's trial has been stayedby order of this Court pending the outcome of this appeal.
Footnote 3: As noted previously, Veeder hadopined in one of his written reports that fibers found on the duct tape recovered from the victim'smouth were "identical in macroscopic and microscopic appearance" and "consistent with havingoriginated from the same material as" a pair of black suede gloves that defendant had worn on theday in question. However, as set forth in the report generated by the Office of the InspectorGeneral, 28% of the fiber evidence cases handled by Veeder were found to be substantivelydeficient, "rais[ing] serious questions [as to his] competenc[y]." Notably, Veeder admitted "thathe had violated laboratory protocols and that [certain] values he had reported on worksheets inhis fiber evidence cases had not been determined by proper procedure or by any test at all."Moreover, Peter DeForest, a Ph.D. and former professor of forensic science who testified onbehalf of defendant at the CPL article 440 hearing, stated that Veeder's use of the term "identical"in the cited report was inappropriate and, further, that "any kind of comparison . . .beyond just . . . a similarity would be . . . extremely difficult" and"misleading."
Footnote 4: Our decisions in People v Thomas (53 AD3d 864[2008], lv denied 11 NY3d 858 [2008]) and People v Drossos (291 AD2d 723[2002]) are not to the contrary, as neither case holds that the People must be aware of theunderlying fraud or misrepresentation in order for a violation of CPL 440.10 (1) (b) to occur.
Footnote 5: Notably, the Legislatureexplicitly requires knowledge on the part of the prosecutor (or the court) when a defendant seeksto vacate his or her judgment of conviction pursuant to CPL 440.10 (1) (c). No similar languageis found in CPL 440.10 (1) (b) and, had the Legislature intended to impose such a requirement inthe context of this particular subdivision, it surely could have included language to that effect.
Footnote 6: Although this latter observationadmittedly was made in another context, it nonetheless underscores the troubling nature of thiscase.