| People v Hicks |
| 2014 NY Slip Op 01376 [114 AD3d 599] |
| February 27, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Appellant, v Tyrone Hicks, Respondent. |
—[*1] New York Law School Legal Services Inc., New York (Adele Bernhard of counsel),for respondent. Willkie Farr & Gallagher LLP, New York (James C. Dugan of counsel), and foramicus curiae.
Order, Supreme Court, Bronx County (Darcel D. Clark, J.), entered October 26,2012, which granted defendant's motion to vacate a judgment of conviction and directeda new trial on the ground of newly discovered evidence, unanimously affirmed.
On June 15, 2000, a judgment was entered in the Supreme Court, Bronx County,convicting defendant after a jury trial of attempted rape in the first degree and attemptedsodomy in the first degree. The conviction was based upon the brutal and violent sexualattack of a female victim that occurred in the early hours of February 23, 1998, in a darkalleyway. The victim testified that she struggled, resisted the attack as much as she couldand continually fought her attacker. She further testified that the attacker had his hand onher throat during the assault. The assault was brought to an end only when someone froman apartment above the alley yelled, causing the attacker to flee.
The victim immediately sought help and shortly thereafter the police arrived at thescene. She was taken to Jacobi Hospital for examination and treatment. A sexual assaultevidence kit was collected which included material from the victim's fingernails. Thevictim provided descriptions of her assailant to police officers and a composite sketchwas prepared. Approximately three weeks later, on March 18, 1998, the victim identifieddefendant in a police lineup. Thereafter, defendant was arrested.
At trial, the victim's eyewitness identification provided the sole evidence linkingdefendant to the crime. The People presented no physical evidence linking defendant tothe crime, including no evidence that defendant's DNA was present at the crime scene.The defense raised issues about the reliability of the victim's identification and pointedthe jury to discrepancies in the several descriptions she gave of her attacker during theinvestigation. The defense also produced an alibi witness, defendant's son-in-law, whotestified that defendant was [*2]at home with the witnesswhen the attack occurred. The jury returned a guilty verdict. In affirming the conviction(People v Hicks, 11 AD3d261 [1st Dept 2004]), this Court found no reason to disturb the jury's determinationon issues of credibility and identification. The Court of Appeals affirmed our order (People v Hicks, 6 NY3d737 [2005]).
In 2009, the Office of the Medical Examiner, with the consent of the Bronx DistrictAttorney, tested and compared the DNA material from the victim's fingernails that hadbeen collected and retained in the sexual assault evidence kit shortly after the crime, withthe defendant's DNA. On October 20, 2010, the Medical Examiner issued a reportconcluding that there was male genetic material recovered from testing the fingernailscrapings, but that the genetic material did not match defendant's DNA.
The motion court granted defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction and for a new trial based upon the DNA evidence.[FN1]The People appeal. We now affirm the order of the trial court.
Although at the time he made his motion, defendant was required to show under CPL440.10 (1) (g) that "[n]ew evidence has been discovered . . . which couldnot have been produced by [him] at the trial even with due diligence on his part and. . . that had such evidence been received at the trial the verdict would havebeen more favorable to the defendant," the law has since been amended. Pursuant to CPL440.10 (1) (g-1), which became effective October 1, 2012, the court may grant adefendant's motion to set aside the judgment when forensic DNA testing is performedafter the entry of judgment upon a conviction and "the court has determined that thereexists a reasonable probability that the verdict would have been more favorable to thedefendant." Unlike a motion under CPL 440.10 (1) (g), a defendant relying on the resultsof DNA testing no longer has to show that the results of such testing is newly discoveredevidence in order to seek vacatur of a judgment of conviction. The defendant only has toshow that there is a reasonable probability that he would have obtained a more favorableverdict. The newly amended statute, permitting relief at any time after the entry ofjudgment, applies to this case.[FN2]Thus, the People's arguments regarding the sufficiency of defendant's claim that theDNA evidence was newly discovered are moot.
The People argue that, even though the DNA material from the victim's fingernailswas from some male other than defendant, because there is no evidence that the victimever scratched or came into contact with her attacker's skin, the DNA evidence is notexculpatory and provides no reasonable probability that defendant would have obtained amore favorable result at trial. They argue that, at the very least, the facts of this caserequired the court to hold a testimonial hearing to determine whether the DNA materialwas from the victim's attacker or some other source.
The standard for reviewing decisions on motions decided under CPL 440.10 (1)(g-1) is abuse of discretion (People v Jones, 109 AD3d 402, 405 [1st Dept 2013]). Thisstandard is the [*3]same for all CPL 440.10 motiondecisions, except in non-capital cases before the Court of Appeals (People v Samandarov, 13NY3d 433, 436 [2009]; People v Crimmins, 38 NY2d 407, 409 [1975]). Wefind that the court providently exercised its discretion in vacating the judgment ofconviction and ordering a new trial in this case.
We reject the People's contention that, before deciding the motion, the court wasrequired to hold a hearing to resolve factual disputes regarding the source of the DNAunder the victim's fingernails. A hearing to develop additional facts is not invariablynecessary to decide a CPL 440.10 motion. Rather, CPL 440.30 contemplates that a courtwill make an initial determination on the written submissions regarding whether themotion can be decided without a hearing (Jones, 109 AD3d at 403). In this casethe People did not request a hearing. Even if they had, the court was well within itsdiscretion in resolving the motion without a hearing based upon the facts that had beenpresented at the underlying trial. The court concluded that the victim's trial testimonyabout her strenuous physical struggle with her attacker supported defendant's contentionthat the DNA material from the victim's fingernails likely came from her attacker. DNAfrom a victim's fingernails is a recognized forensic tool in identifying attackers,eliminating suspects and investigating crimes (see People v Bush, 90 AD3d 945 [2d Dept 2011]; People v Donahue, 81 AD3d1348, 1350 [4th Dept 2011], lv denied 16 NY3d 894 [2011]).
Although there was no testimony that the victim's fingernails came directly intocontact with her attacker's skin, it is still reasonable under the facts of this case toconclude that when the victim vigorously fought her attacker she collected his DNAunder her fingernails. Other explanations posited by the People regarding why DNA maynot have been that of the attacker did not require a testimonial hearing conclusivelyruling them out. While a defendant needs to show more than a mere possibility that theverdict would have been more favorable to him (see People v Rodriguez, 193AD2d 363, 365 [1st Dept 1993], lv denied 81 NY2d 1079 [1993]), he does nothave to establish a virtual certainty that there would have been no conviction without theDNA evidence (see People vTankleff, 49 AD3d 160 [2d Dept 2007]).
Here the DNA evidence is material and exculpatory because it supports identifyingsomeone other than defendant as the attacker. In concluding that there was a reasonableprobability that the jury would have rendered a more favorable verdict for the defendant,the court not only considered the DNA evidence but also that the underlying convictionwas based solely on the resolution of a close and vigorously contested factual questionregarding the attacker's identity. The court considered that the conviction was based onan arguably conflicted and uncorroborated eyewitness identification by the victim. Onbalance the court correctly exercised its discretion in finding that a new trial waswarranted. Our recent decision in People v Jones (109 AD3d 402 [1st Dept 2013]), wheredespite new DNA evidence, we upheld the denial of a CPL 440.10 motion based on thestrength of the eyewitness identification, is distinguishable. Unlike the eyewitnessidentification in People v Jones, the victim's identification in this case was notunusually strong or reliable. She had no opportunity to observe her attacker in anon-stressful [*4]situation before the attack. Her variousdescriptions of her attacker in the course of the investigation contained discrepancies andthere was an alibi witness placing defendant someplace else at the time of the attack.Concur—Tom, J.P., Saxe, Moskowitz and Gische, JJ.
Footnote 1: Defendant also movedto set aside the verdict based upon the People's failure to exchange Bradymaterials consisting of a letter. The trial court never ruled on the issue, finding theDNA evidence was in itself sufficient to warrant vacating the conviction and holding anew trial.
Footnote 2: The People concededthis point at oral argument.