The defendant brought a motion pursuant to Criminal Procedure Law (C.P.L.) § 440.10 to vacate the judgment for Murder in the Second Degree and Assault in the First Degree, entered on November 24, 1992, after a jury trial. By decision and order, dated September 16, 2014, the defendant's motion to vacate was granted to the extent that a hearing was ordered. On September 16, 2014, the hearing was commenced. At the hearing, in this order, the testimony of Robert Crosson, Aaron Williams, William E. Hellerstein, Edward Boyar, Edward Purce, Louis Scarcella, Robert Massi, Daniel Medwed, and John Mullen were taken. The defense's posture is that the judgment should be vacated because the single identification testimony of Robert Crosson was facilitated by Detectives Louis Scarcella and Steven Chmil [FN1] and these Detectives have recently been found in other cases to have engage in "corrupt investigative processes."
The defense argues that the revelation of the corrupt practices of these Detectives is newly discovered evidence and that potentially exculpatory evidence was destroyed where there was a duty to preserve. The defendant further asserts a claim of "actual innocence" pursuant to People v. Hamilton [FN2], 115 AD3d. 12 [App. Div., 2nd Dept. 2014]) and ineffective assistance of counsel as a basis to vacate the judgment herein. The People counter that the defense has not demonstrated that there is new evidence concerning the reliability of the identification made by the one witness in this case. For the foregoing reasons, the defendant's motion to vacate the judgment of conviction is granted.
On August 13, 1991, two correction officers were shot, one killed, the other injured in the Kingsborough housing projects of Brooklyn. On August 14, 1991, the defendant was arrested without a warrant on the second floor of his family's dwelling. On August 15, 1991, he was identified in a photo array prepared by Detectives Louis Scarcella and Steven Chmil. A pretrial hearing was held in which Detective Scarcella and others testified concerning the arrest and identification of the defendant. On November 24, 1992, the defendant was convicted of Murder in the Second Degree and Assault in the First Degree, after a jury trial, in which the testimony of one eyewitness was taken. The defendant has unsuccessfully appealed his conviction (see People v. Hardgrove, 213 AD2d 492 [App. Div. 2nd Dept. 1995]; People v. Hardgrove, 87 NY2d 846 [1995]; Hardgrove v. Walter Kelly, 1998 U.S. Dist. Lexis 14577; Hardgrove v. Walter Kelly, 1998 U.S. app. Lexis 24484). This is the first motion brought pursuant to C.P.L. 440.10 (g) to vacate his conviction based on newly discovered evidence concerning corrupt police practices. A hearing was conducted on the claim of newly discovered evidence, actual innocence, ineffective assistance of counsel at trial and missing evidence.
The first witness to testify at the hearing was Robert Crosson, one of the victims. The [*2]defendant was convicted of Assault in the First Degree for the injuries sustained to Mr. Crosson's hand as a consequence of the shooting. At the time of the shooting, Mr. Crosson was a Probationary Correction Officer. Mr. Crosson testified that on August 13, 1991, at about 4:00 a.m., he was in the passenger seat of a Volvo in which his deceased friend, Correction Officer Ronald Neischer, was in the driver's seat. They were parked outside of the Kingsborough housing projects, where they both lived. Mr. Crosson testified that as they were parked, two young black men approached the vehicle on bicycles with guns. Mr. Crosson testified that the men immediately asked Ronald Neischer to give up the car and shots were then fired. Ronald Neischer was shot by the individual on the driver's side and Mr. Crosson was shot by the individual on his side of the vehicle. After the shooting, the assailants got into the vehicle and drove away. The bicycles were left at the scene with blood splatter.
Mr. Crosson could not recall on the stand the description he gave during the trial and prior of the man who shot him (9/16 Transcript p. 40). Mr. Crosson testified that he had lived in Kingsborough Houses his entire life at the time, he was twenty-nine, except for three years he had been in the military. Mr. Crosson testified that he knew the Hardgrave [FN3]family at the time of the shooting, that they were on speaking terms, and had lived in the same housing with them for over twenty years (9/16 Transcript p. 41). Mr. Crosson testified at trial that the defendant was the person who shot him in the hand.
Mr. Aaron Williams was the second witness called. Mr. Williams testified that on February 14, 2014, he was contacted by the District Attorney's Office by Detective Mulligan and another man who asked him questions about the instant case. Mr. Williams related to the men that on the night of the shooting he was outside of 1351 St. Marks Place, Brooklyn, with the defendant when he heard the shots coming from the Kingsborough Houses. There were allegedly three meetings with Mr. Williams and Detective Mulligan. In the last meeting, he said he was asked if he recognized anyone from a photo he was shown. Mr. Williams testified that he recognized an individual named Anthony Bookard. Mr. Williams could not recall or give an approximation of when the third meeting took place. He also could not recall the date or the hour of the shooting.
The third witness was Mr. William E. Hellerstein, a retired professor of law at Brooklyn Law School, who in the year 2000 established the Non-DNA Innocence Project at the law school. Mr. Hellerstein testified that he undertook an extensive in-debt examination principally of John Bunn's matter, the co-defendant, but also of the defendant's case. He was given access to the District Attorney's file in the cases and observed a letter that directed the release of evidence in the case. Mr. Hellerstein stated that he was troubled about the case. He was attempting to get the bicycles from the case, but he was told they were unavailable. Mr. Hellerstein believed the letter was unusual because it was issued during the pendency of the defendant's original appeal, around 2001.
The fourth witness to testify was Mr. Edward Boyar, the Assistant District Attorney that was assigned and prosecuted the case of co-defendant John Bunn and the defendant. Mr. Boyar stated that he recalled eliciting testimony from Detective Louis Scarcella in the pretrial hearing and that Detective Scarcella made the defendant's arrest (9/16 Transcript p. 132, 136). Mr. Boyar further testified that at the commencement of the trial he indicated to the court that he was [*3]going to start his case about 10:30 am and complete it that same day in the early afternoon (9/16 Transcript p. 107). Mr. Boyar also testified that he did not run any of the prints through the system and they did not match either of the defendants (9/16 Transcript p. 110-112).
According to Mr. Boyar, the case was prepared by another Assistant District Attorney, he stated that he only tried the case (9/16 Transcript p. 110). The prints of neither victim were found on the vehicle which was driven by the assailants (9/16 Transcript p. 110). Mr. Boyar confirmed that none of the fingerprints on the bicycles or the vehicle were connected to the defendants (9/16 Transcript p. 110-12). Also, Mr. Boyar testified that he did not know whether any blood samples were tested in the case and none was presented at trial (9/16 Transcript p. 127). Mr. Boyar also recalled that Detective Scarcella testified that he had apprehended the defendant because he had gotten an anonymous call, went to a location, and was given the name Hargrave (9/16 Transcript p. 136).
Mr. Edward Purce also testified. Mr. Purce is an Assistant District Attorney in Kings county. Mr. Purce investigated the defendant's case with the office's "Conviction Integrity Review Unit" in or around July 2013, as per his testimony. Mr. Purce confirmed that paperwork requesting tests of blood samples taken from the bicycles were submitted to the Medical Examiner's Office. He also confirmed that numerous fingerprint lifts were recovered from the crime scene taken inside and outside of the vehicle and that the ballistics and serology materials were never tested (9/24 Transcript p. 14). Mr. Purce further testified that neither defendant had injuries indicating abrasions or bullet wounds and that their fingerprints did not match any recovered at the scene.
The next person to take the stand was Mr. Louis Scarcella. He testified in the presence and with the participation of his two attorneys. Mr. Scarcella stated that he was not the assigned Detective, however he testified at the pretrial hearing about the identification procedures. He testified that the defendant's case was not his, that it was his partner's, Detective Steven Chmil (9/24 Transcript p. 46). At the time of the arrest, he was assigned to the Brooklyn North Homicide Unit as a Detective. His partner was Detective Steven Chmil. Mr. Scarcella stated that he and his partner were friends and shared a business card that described some of their hobbies or interest, which he thought were funny (9/24 Transcript p. 51-52). During the investigation of the case, Detective Scarcella and his partner's official N.Y.P.D. business card listed him and his partner as "adventures, marathoners, regular guys, and mountain climbers" (9/24 Transcript. p. 51).
Mr. Scarcella denied being the Detective assigned to the case, however, while on the stand he read the transcript of his partner Detective Chmil's statement at the pretrial hearing indicating that Mr. Scarcella was the assigned Detective (9/24 Transcript p. 55). Mr. Scarcella stated that his participation in the case was very limited and he did nothing of substance in the investigation (9/24 Transcript p. 48). After receiving an anonymous tip, Detective Scarcella went to the defendant's family's home, apprehended him in the hallway and arrested him without a warrant. Also, Mr. Scarcella along with his partner, Detective Chmil, prepared a photo array from pictures found in a drawer. He did not recall being present at the defendant's arrest. He did not recall the photo array prepared for the sole eyewitness. He also did not recall testifying at the pretrial hearing (9/24 Transcript p. 48-49). However, a Daily News Article on the homicide, admitted as exhibit "I", shows Detective Scarcella and the assigned Detective from the 77th precinct, [*4]Detective Barber [FN4], exiting the 77th precinct escorting both defendants in handcuffs.
When asked if he remembered Robert Crosson being the sole surviving witness, Mr. Scarcella stated "I don't remember that name" (9/24 Transcript p. 56). However, further in his testimony Mr. Scarcella testified that at his first appearance in this court he did hear his name and knew who Robert Crosson was (9/24 Transcript p. 56). He testified that he did not remember, but Scarcella had in fact spoken admittedly with his former partner, Detective Chmil, around a dozen times about the case prior to his appearance. Mr. Scarcella was asked if he testified in the defendant's suppression hearing, to which he responded that he had "no recollection of that whatsoever"(9/24 Transcript p. 60). He did not recall testifying under oath in the shooting involving two Correction Officers that got significant publicity and he spent about twelve calls with his partner, Detective Chmil, in preparation for the hearing (9/24 Transcript p. 61). Nonetheless, Mr. Scarcella stated that he did not get an arrest warrant to arrest the defendant, that he does not know the defendant and does not remember arresting him (9/24 Transcript p. 71-73).
Additionally, Mr. Scarcella testified that after retiring from the police department he became an investigator with the Department of Education. He admitted that while an investigator with the Office of Special Investigations a report he completed on a cheating scandal, which caused the resignation of an administrator, was subsequently reversed (9/24 Transcript p. 73).
Mr. Robert Massi, a former Public Defender with the Legal Aid Society that worked on the defendant's entire case, testified at the hearing. He recalled the testimony of Detective Chmil at the suppression hearing and that the Detective stated that he picked photos from the files of the "Precinct RIP Unit" for the photo array (9/24 Transcript p. 90). He also recalled, independently, Scarcella testifying that he went to the location, into the elevator, randomly came out on the second floor and found the defendant standing there in a multiple story building (9/24 Transcript p. 93). He said he remembered the testimony because it seamed strange to him (9/24 Transcript p. 93). He also testified that the case was done in a rushed atmosphere in two days (9/24 Transcript p. 98). Mr. Massi recalled asking Detective Barber, now deceased, whether the prints taken from the bicycles matched that of either defendant and the Detective replied that they did not (9/24 Transcript p. 101). He also confirmed, that during the trial, Assistant District Attorney Boyar indicated that none of the blood samples had been tested (9/24 Transcript p. 106-107).
Mr. Daniel Medwed was called to testify to authenticate a letter that the defense sought to admit. He testified that he worked on the defendant and his co-defendant's case primarily. He testified that he worked at Brooklyn Law School at the time with the Second Look Program clinic and that he spent a great deal of effort trying to locate the physical evidence of blood work and fingerprint lifts (10/14 Transcript p. 11). He recalled that he wrote a letter to an Officer William Flynn at One Police Plaza to confirm if the office had located any of this evidence (10/14 Transcript p. 13). Mr. Medwed identified his signature on the letter and it was admitted into evidence.
The People called one witness, Mr. John Mullen. Mr. Mullen is a Detective employed with the Kings County District Attorney's office. He testified that he was assisting A.D.A. Ed Purce in early 2014 with the defendant's case and that he went with A.D.A. Purce and Detective [*5]Investigator Roger Torres to interview Mr. Aaron Williams. He testified that he went with Mr. Aaron Williams a second time on April 18, 2014, and that A.D.A. Purce and Detective Investigator Daniel Laysack were present (10/14 Transcript p. 28).