| People v Sheppard |
| 2014 NY Slip Op 04982 [119 AD3d 986] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vTarrant J. Sheppard, Appellant. |
Donna C. Chin, Ithaca, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Daniel Johnson of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Tompkins County(Rowley, J.), rendered August 14, 2013, which resentenced defendant following hisconviction of the crime of criminal possession of a weapon in the third degree, and (2) bypermission, from an order of said court, entered October 17, 2013, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In October 2003, Enrique Chavez died after he was shot in his apartment in the Cityof Ithaca, Tompkins County. Defendant was one of several individuals who weresuspected of involvement, but no arrests were made at that time. Several years later,Ismail Abdur-Razzaaq and his brother, Umar Abdur-Razzaaq, implicated defendant inthe shooting as part of a cooperation agreement related to pending federal charges.Defendant was thereafter charged with manslaughter in the second degree, criminallynegligent homicide, criminal possession of a weapon in the third degree and tamperingwith physical evidence. Following a jury trial, he was acquitted of all charges exceptcriminal possession of a weapon in the third degree. His motion to set aside the verdictpursuant to CPL 330.30 was denied, and he was sentenced as a second felony offender tothe statutory maximum prison term of 3
Thereafter, defendant moved pursuant to CPL 440.10 to vacate the judgment ofconviction, and County Court denied the motion. He appealed from the judgment ofconviction and the denial of this motion. While that appeal was pending, defendantmoved again pursuant [*2]to CPL 440.10 to vacate thejudgment of conviction based upon newly discovered evidence. Before the secondmotion was decided, this Court affirmed the denial of the first CPL 440.10 motion,modified the judgment of conviction by vacating the sentence, and remitted the matterfor resentencing (107 AD3d 1237 [2013], lv denied 22 NY3d 1203 [2014]).County Court then resentenced defendant to the same prison term and denied his secondCPL 440.10 motion, without a hearing. Defendant now appeals from the judgment thatresentenced him and, by permission, from the order denying the second CPL 440.10motion.
Defendant contends that his sentence—the maximum permissible period ofconfinement for a second felony offender convicted of a class D felony (see PenalLaw §§ 70.06 [3] [d]; [4] [b]; 265.02)—is harsh and excessivein view of his relatively minimal criminal history and long-standing issues with substanceabuse. However, the record reveals that County Court specifically considered thesefactors and nonetheless concluded that the maximum term was appropriate, based upondefendant's failure to take responsibility for the instant offense and his history of repeatedfailures to take advantage of or comply with opportunities for substance abuse treatment.We find no abuse of the court's discretion in this regard or any extraordinarycircumstances warranting a reduction in the interest of justice (see People v Dawson, 110AD3d 1350, 1353 [2013]; People v Ashley, 45 AD3d 987, 989 [2007], lvdenied 10 NY3d 761 [2008]; People v Abbott, 275 AD2d 481, 484 [2000],lv denied 96 NY2d 731 [2001]).
Defendant next contends that County Court erred in denying his second motionpursuant to CPL 440.10 to vacate the judgment of conviction. Contrary to defendant'scontention, the bench decision in which the court set forth the reasons for denying themotion, as amplified by the court's comments during argument on the motion, wassufficient to comply with the statutory requirement to "set forth on the record [the court's]findings of fact, its conclusions of law and the reasons for its determination" (CPL440.30 [7]; see People vWatkins, 79 AD3d 1648, 1648-1649 [2010], lv denied 16 NY3d 800[2011]). Further, upon review, we agree with County Court that two of the three issuesraised in the motion had been raised in defendant's first CPL 440.10 motion. As theseissues were considered and resolved upon the prior appeal, they are not now properlybefore us (see CPL 440.10 [3] [b]; People v Glinton, 74 NY2d 779, 780[1989]; People v De Oliveira, 223 AD2d 766, 769 [1996], lv denied 88NY2d 1020 [1996]).
As for the third issue, defendant relies upon what he contends is newly discoveredevidence that creates a probability that the trial verdict would have been more favorableto him if the evidence had been received at trial (see CPL 440.10 [1] [g]).Defendant submitted affidavits from his mother and a private investigator describingstatements allegedly made to them after the trial by Jameel Melton, who shared anapartment with Chavez before the shooting. After Chavez was shot in this apartment,police found a holster and ammunition in a purse in Melton's bedroom closet; they alsolocated a user's manual for a .380 caliber handgun in a pair of jeans on the bed inMelton's room, and Melton's fingerprints were identified on this document. Police laterfound a .380 caliber handgun and loaded magazine on the bank of a nearby creek, andforensic testing revealed that the bullet that struck Chavez had been fired from thisweapon. None of this physical evidence was ever linked with defendant's fingerprints orDNA. Shortly after the shooting, Melton told police that he was not in Ithaca at the timeof the incident, having taken a bus to New York City earlier that day. He initially deniedany knowledge of a weapon, but later acknowledged that he had found a gun in his closetand had handled it before leaving for New York City. Melton did not testify at trial.Ismail Abdur-Razzaaq testified that he gave a .380 caliber gun to defendant, bothAbdur-Razzaaq brothers testified that defendant later made incriminating statements, andDiego Bush testified that he saw defendant playfully wrestling with [*3]Chavez and poking him with such a weapon just before itwent off (see 107 AD3d at 1238-1239).
In her affidavit, defendant's mother averred that Melton—then in jail awaitingdetermination of unrelated criminal charges—told her that he owned the gun thathad been used to shoot Chavez, that defendant had neither possession nor knowledge ofthis gun, and that Melton would be willing to testify to this effect if his attorneyapproved; she also said that Melton expressed concern that such an admission couldresult in additional charges against him. Defendant's private investigator stated that,during a meeting with Melton and Melton's counsel in jail, Melton told him thatdefendant "did not possess and had nothing to do with the gun" and that Melton waswilling to testify on this subject. The People responded that they had attempted toinvestigate these claims but had been told by Melton's counsel that he was unwilling tospeak with the People and no longer wanted anything to do with defendant's case. Indenying the motion, County Court expressed its belief that the hearsay affidavits of theprivate investigator and defendant's mother were an insufficient basis for defendant'smotion, in view of the fact that Melton himself had not supplied an affidavit and wasapparently unwilling to testify. We disagree.
"[A] defendant has a fundamental right to offer into evidence the admission ofanother to the crime with which he or she is charged" (People v Page, 115 AD3d1067, 1069 [2014], lv dismissed 23 NY3d 966 [2014]). "Depriving adefendant of the opportunity to offer into evidence another person's admission to thecrime with which he or she has been charged, even though that admission may only beoffered as a hearsay statement, may deny a defendant his or her fundamental right topresent a defense" (People vGibian, 76 AD3d 583, 585 [2010], lv denied 15 NY3d 920 [2010][citations omitted]; see Chambers v Mississippi, 410 US 284, 302 [1973]). ThePeople's claims regarding Melton's unwillingness to testify were themselves hearsay, andsimply created issues of fact as to whether he was available and, if not, whether hisposttrial statements were admissible as declarations against his penal interest (see People v McFarland, 108AD3d 1121, 1122-1123 [2013]). A statement is admissible under this hearsayexception if (1) the declarant is unavailable because of death, absence or a refusal totestify on constitutional grounds, (2) the declarant knew when making the declarationthat it was contrary to his or her penal interest, (3) he or she had competent knowledge ofthe facts, and (4) other independent evidence supports the reliability and trustworthinessof the declaration (see People v Brensic, 70 NY2d 9, 15 [1987]; People v Martin, 8 AD3d883, 886 [2004], lv denied 3 NY3d 677 [2004]). Where, as here, thestatement at issue tends to exculpate a criminal defendant, a more lenient standard ofreliability is applied than to inculpatory statements; an exculpatory declaration isadmissible if competent independent evidence "establishes a reasonable possibility thatthe statement might be true" (People v Settles, 46 NY2d 154, 169-170 [1978];accord People v McFarland, 108 AD3d at 1122; People v Deacon, 96 AD3d965, 968 [2012], appeal dismissed 20 NY3d 1046 [2013]).
Here, Melton was the only person linked by forensic evidence to the weapon thatdefendant was convicted of possessing. Moreover, the fact that Melton made one of thehearsay statements in the presence of his counsel is a compelling consideration inassessing whether it is reasonably possible that it was truthful. In view of thesecircumstances and the relatively minimal evidence supporting defendant's conviction, ahearing is necessary to promote justice, and the CPL 440.10 motion should not have beensummarily denied (see People v Page, 115 AD3d at 1069; People vMcFarland, 108 AD3d at 1122-1123).
Stein, J.P., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed. Ordered that the order is reversed, on the law, and matter remitted to theCounty Court of Tompkins County for further proceedings not inconsistent with thisCourt's decision.