| People v Deacon |
| 2012 NY Slip Op 05016 [96 AD3d 965] |
| June 20, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Derrick Deacon, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman ofcounsel), for respondent. Glenn A. Garber and Rebecca E. Freedman, New York, N.Y., for amicus curiae ExonerationInitiative (one brief filed).
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Tomei, J.), dated November 9, 2009, which, after a hearing, denied his motion pursuant to CPL440.10 to vacate a judgment of the same court rendered January 12, 1990, convicting him ofmurder in the second degree (two counts), robbery in the first degree, and criminal possession ofa weapon in the second degree, upon a jury verdict, and imposing sentence, and for a new trial,on the ground of newly discovered evidence or, in the alternative, to vacate the judgment anddismiss the indictment on the ground of actual innocence.
Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion,by deleting the provision thereof denying that branch of the defendant's motion which waspursuant to CPL 440.10 (1) (g) to vacate the judgment of conviction on the ground of newlydiscovered evidence and for a new trial, and substituting therefor a provision granting that branchof the motion; as so modified, the order is affirmed, the judgment is vacated, and a new trial isordered.
On April 1, 1989, Anthony Wynn was robbed and shot dead in the hallway of a Flatbushapartment building. In connection therewith, the defendant was charged with two counts ofmurder in the second degree, as well as robbery in the first degree, criminal possession of aweapon in the second degree, and criminal possession of a concealed weapon in the third degree.The defendant was tried before a jury in December 1989. At trial, Colleen Campbell, a witnesswho had seen the fleeing assailant, testified pursuant to a subpoena served by the defense. Duringthe police investigation, Campbell had described the assailant as approximately 19 years old andapproximately 5' 7" tall. The defendant is six feet tall, and, at the time of this incident, was 34years old. At trial, Campbell testified that while she knew the defendant for "[a]bout three yearsor more," she could [*2]not tell whether the defendant was theperson she saw fleeing. Campbell testified that she had "barely glimpsed the person, [and] didn'tlook" because "she was scared." The defendant was convicted of two counts of murder in thesecond degree, robbery in the first degree, and criminal possession of a weapon in the seconddegree. The defendant remains incarcerated.
In 2008, the defendant moved to vacate the judgment pursuant to CPL 440.10, seeking a newtrial pursuant to CPL 440.10 (1) (g), or to vacate the judgment based on actual innocence. Insupport of the motion, the defendant submitted affidavits from Trevor Brown and ColleenCampbell.
According to his affidavit, in 2001, Brown became a "key cooperating witness" in a federalinvestigation of the activities of the "Patio Crew," a "violent Jamaican gang that controlled" theFlatbush neighborhood where the homicide occurred, and had testified against Emile Dixon, the"leader" of the Patio Crew. Defense counsel asserted that, in the course of an investigation ofDixon and other Patio Crew members by the Federal Bureau of Investigation, "Brown [had] toldfederal authorities during a June 2001 proffer session that another member of the Patio Crew,Paul Gary Watson, a.k.a. 'Pablo,' committed the murder of Anthony Wynn for which thedefendant was wrongfully convicted." According to the defendant's counsel, Brown "state[d] thathe was present when Watson planned to rob Wynn and that Watson returned to Brown'sapartment immediately after the murder where Watson confessed to Brown that he killed Wynn. . . in the course of the planned robbery." The defendant's counsel argued that"Watson, unlike [the defendant], matches the description provided to the police on the day of themurder by Colleen Campbell . . . who saw the assailant run past her moments afterthe occurrence."
Campbell stated in her affidavit that the defendant was not the fleeing assailant whom shehad seen. Campbell also stated that she had been afraid to testify as an eyewitness at the trial, dueto her fear of the "real" perpetrator.
The Supreme Court conducted a full evidentiary hearing on the motion for a new trial basedupon the aforementioned newly discovered evidence. At the hearing, Brown testified to thealleged facts of Watson's confession, as set forth in Brown's affidavit. Campbell testified that thedefendant was not the fleeing assailant involved in this incident, but that she had been afraid toexonerate the defendant at trial due to her fear of neighborhood gang members, namely, thoseaffiliated with the Patio Crew. Campbell also testified that she had initially told the police thatthe perpetrator was not the defendant, but that she had been pressured by police or prosecutors toprovide "vague" testimony at trial. Campbell testified that the police and/or prosecutors hadthreatened to "take away" her children if she did not cooperate with them.
During the hearing, the defendant moved to amend his motion to include the affidavit ortestimony of Dexter Bailey. Bailey submitted an affidavit in which he stated that J.T. Dixon hadconfessed to having taken part in the robbery and murder of Wynn along with Watson. Bailey,another gang member who had also cooperated with the federal investigation of the Patio Crew,had not previously divulged this information to the prosecution. The Supreme Court denied thedefendant's motion to include Bailey's testimony.
Following the evidentiary hearing, the Supreme Court denied the defendant's motionpursuant to CPL 440.10. The Supreme Court found, inter alia, that Brown's testimony withrespect to Watson's alleged confession would not qualify as a statement against penal interest, asit was not established that Watson was unavailable, and there were insufficient indicia thatBrown's testimony was reliable. The Supreme Court also found the testimony of ColleenCampbell to be inconsistent and not credible. Thus, the Supreme Court concluded that theevidence adduced at the hearing did not warrant a new trial. We disagree.
A motion to vacate a judgment of conviction upon the ground of newly discovered evidencerests within the discretion of the hearing court (see People v Salemi, 309 NY 208, 215[1955], cert denied 350 US 950 [1956]; People v Tankleff, 49 AD3d 160, 178 [2007]). The "court mustmake its final decision based upon the likely cumulative effect of the new evidence had it beenpresented at trial" (People [*3]v Bellamy, 84 AD3d 1260, 1261 [2011]; see CPL440.10 [1] [g]). In order to justify such vacatur, the evidence must fulfill all the followingrequirements: " '1. It must be such as will probably change the result if a new trial is granted; 2. Itmust have been discovered since the trial; 3. It must be such as could have not been discoveredbefore the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must notbe cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting theformer evidence' " (People v Salemi, 309 NY at 216, quoting People v Priori, 164NY 459, 472 [1900]; see CPL 440.10 [1] [g]; see also People v Malik, 81 AD3d 981 [2011]).
The Supreme Court erred in concluding that the proffered testimony of Brown as to Watson'salleged confession could not be considered in support of the defendant's motion for a new trialunder CPL 440.10 (1) (g) (see People vOrtiz, 81 AD3d 513, 514 [2011]; People v Toussaint, 74 AD3d 846, 846 [2010]; People v Washington, 31 AD3d795 [2006]). "[B]efore statements of a nontestifying third party are admissible as adeclaration against penal interest, the proponent must satisfy the court that four prerequisites aremet: (1) the declarant must be unavailable to testify by reason of death, absence from thejurisdiction, or refusal to testify on constitutional grounds; (2) the declarant must be aware at thetime of its making that the statement was contrary to his penal interest; (3) the declarant musthave competent knowledge of the underlying facts; and (4) there must be sufficient competentevidence independent of the declaration to assure its trustworthiness and reliability" (People vBrensic, 70 NY2d 9, 15 [1987]). Third-party statements used against the accused may beadmitted only when competent independent evidence is presented to establish that the declarationwas spoken under circumstances which renders it highly probable that it is truthful (id. at14-15). However, declarations which exculpate a defendant, such as those presented here, aresubject to a more lenient standard, and will be found "sufficient if [they] establish[ ] a reasonablepossibility that the statement might be true" (People v Settles, 46 NY2d 154, 169-170[1978]; see People v Fonfrias, 204 AD2d 736, 738 [1994]). "Depriving a defendant of theopportunity to offer into evidence another person's admission to the crime with which he or shehas been charged, even though that admission may only be offered as a hearsay statement, maydeny a defendant his or her fundamental right to present a defense" (People v Gibian, 76 AD3d 583,585 [2010], citing Chambers v Mississippi, 410 US 284, 302 [1973]).
The statement offered by Brown satisfied the four prerequisites. The defense established thatWatson, despite the Supreme Court's finding to the contrary, was unavailable to testify becausehe had been deported to Jamaica (seePeople v Luckey, 73 AD3d 568, 569 [2010]; see also People v Coleman, 69 AD3d 430, 431 [2010]). Watson'sdeclaration was clearly and unambiguously against his penal interest. Watson admitted his ownparticipation in the attack, and there is a reasonable possibility that the declaration may be true.Watson's declaration was clearly exculpatory of the defendant. Further, we find that there weresufficient indicia that Brown's testimony was reliable. In this regard, we note that this Court "isnot bound by the hearing court's factual determinations and may make its own credibilitydeterminations" (People v Tankleff, 49 AD3d at 179).
We also find the recantation testimony of Campbell credible and compelling, and disagreewith the Supreme Court's finding that Campbell's testimony would not be likely to change theresult upon a new trial, especially when viewed in conjunction with Brown's testimony. Whilerecantation evidence is considered to be the most unreliable form of evidence (see People vShilitano, 218 NY 161, 170 [1916]), its credibility may be established if certain factors arepresent, including its inherent believability, the demeanor of the recanting witness, the existenceof corroborating evidence, the reasons offered for the recantation of the previous testimony, therelationship between the recanting witness and the defendant, and "the importance of factsestablished at trial as reaffirmed in the recantation" (People v Wong, 11 AD3d 724, 726 [2004], citing People vShilitano, 218 NY at 170-172; seePeople v Jenkins, 84 AD3d 1403, 1407 [2011]).
Here, Campbell testified at trial that she had "barely glimpsed" the fleeing perpetrator.Campbell offered an equivocal answer when asked if she could identify that person as thedefendant, stating, "if I say I saw this man, I would be telling a lie. I just barely glimpsed theperson and the same way I told the police, I cannot tell if it was Dick, Tom or Harry." At thehearing, Campbell testified that she had seen the perpetrator, and that he was not the defendant.Campbell provided a credible reason as to why she originally testified that she could notexculpate the defendant, namely, [*4]that she fearedrepercussions from the gang members whose activities permeated her neighborhood and whowere the focus of the aforementioned federal investigation. Indeed, the recantation furtheracquires "an aura of believability" because of the testimony of the other witnesses at the hearingand its consistency within the context of other matters contained in this record (People vWong, 11 AD3d at 726), including, but not limited to, the fact that Campbell's initial pretrialdescription of the perpetrator as approximately 19 years old and 5' 7" tall matches a descriptionof Watson, but not that of the defendant, who, at the time of the incident, was 34 years old andsix feet tall. Moreover, there appears to be no relationship between Campbell and the defendantof a nature that would motivate Campbell to inappropriately come to the defendant's aid.
Further, we find that the likely cumulative effect of the newly discovered evidence and therecantation testimony established a reasonable probability that the result of a new trial would be averdict more favorable to the defendant (see CPL 440.10 [1] [g]; People v Bellamy, 84 AD3d 1260[2011]). Accordingly, the Supreme Court erred in denying that branch of the defendant's motionwhich was for a new trial based on newly discovered evidence (see People v Tankleff, 49 AD3d160 [2007]; People v Wong, 11 AD3d at 726).
Nonetheless, the Supreme Court properly denied that branch of the defendant's motion whichwas pursuant to CPL 440.10 (1) (h) to vacate the judgment of conviction and dismiss theindictment on the ground of actual innocence. The defendant did not establish entitlement to thisrelief. In making our determination, we do not decide whether, as the defendant contends, NewYork recognizes a free-standing claim of actual innocence that is cognizable by, or which may beaddressed within the parameters of, CPL 440.10 (1) (h) (see People v Tankleff, 49 AD3dat 182). Angiolillo, J.P., Dickerson, Austin and Cohen, JJ., concur.