| People v Thibodeau |
| 2017 NY Slip Op 04577 [151 AD3d 1548] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v GaryThibodeau, Appellant. |
Lisa A. Peebles, Federal Public Defender, Syracuse, for defendant-appellant.
Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Oswego County Court (Daniel R. King, A.J.),dated March 2, 2016. The order denied the motion of defendant to vacate a judgment ofconviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is affirmed.
Memorandum: Defendant appeals from an order denying, after a hearing, his CPL 440.10motion seeking to vacate a judgment convicting him upon a jury verdict of kidnapping in the firstdegree (Penal Law § 135.25 [3]). Defendant's conviction arises from the April 3,1994 abduction of the victim from the convenience store where she worked in the Town of NewHaven. The victim has not been heard from since then, nor has her body been found. Defendantand his brother were jointly indicted for the kidnapping but were tried separately, and thePeople's theory of the case was that they had abducted the victim using a van owned bydefendant's brother. Defendant was tried first, beginning in May 1995, and convicted. His brotherwas subsequently acquitted. We affirmed the judgment of conviction on defendant's direct appeal(People v Thibodeau, 267 AD2d 952 [1999], lv denied 95 NY2d 805[2000]).
In February 2013, a woman named Tonya Priest gave a sworn statement to the policealleging that James Steen told her in 2006 that he, Roger Breckenridge, and Michael Bohrer hadabducted the victim using a van, brought her to Breckenridge's residence, killed her, and disposedof her body and clothes at a nearby cabin. Steen also allegedly told Priest that Breckenridge'sonetime girlfriend, Jennifer Wescott, had been present when they brought the victim to theresidence. In March 2013, Priest placed a recorded telephone call to Wescott, and Wescottseemed to confirm that Steen, Breckenridge, and Bohrer had brought the victim to the residencein a van. Wescott, however, made other seemingly contradictory statements during the call,including that she had, in essence, surmised well after the fact that the victim had been the personin the van, and that, as far as she knew, defendant had killed the victim. When interviewed a fewdays after the call, Wescott told the police that she had lied to Priest, that she and Breckenridgenever lived where Steen allegedly said the victim had been taken, and that she did not have anyrelevant information about the case. Megan Shaw, who was married to Priest's former husbandand had discussed the case with Priest, gave her own statement to the police in 2013 alleging thatSteen told her in early 2010 that he had helped dispose of the victim's body after she was killedby members of a motorcycle club.
In 2014, defendant's appellate counsel reviewed the file kept by the trial attorney fordefendant's brother and found documents concerning the victim's status as a confidentialinformant (CI) for the police. Those documents established that a deputy had lost the victim's "CIfile," which included her personal information and a photograph, in late 1991 in the parking lotof the same store from which she was abducted in 1994, that another deputy had recovered thefile about a month later, and that an investigator had located it in storage about a week beforedefendant's trial began. Defendant's trial counsel asserted in an affidavit that he had not seenthose documents or the CI file itself (collectively, CI information), and that he could have usedthe CI information at trial to establish that other people had a motive to harm the victim.
Defendant moved in July 2014 to vacate the judgment of conviction based on the People'salleged Brady violation in failing to disclose the CI information (see CPL 440.10[1] [h]), and based on newly discovered evidence (see CPL 440.10 [1] [g]). Defendantalso contended in his reply papers that he was actually innocent. County Court conducted ahearing on the motion.
With respect to the Brady claim, defendant's trial counsel testified that he had notseen any of the CI information. The trial prosecutor, by contrast, testified that the deputies'reports concerning the victim's status as a CI and the loss of her file had been made available tothe defense in December 1994, and that the investigator's report and CI file had been disclosedthe day after the investigator found the file in storage.
With respect to the newly discovered evidence claim, Priest's 2013 statement and a transcriptof her recorded call to Wescott were admitted in evidence, but defendant declined to call Priest asa witness at the hearing. Shaw testified consistent with her 2013 statement, and defendant calledseveral other witnesses to testify to admissions allegedly made by Steen, Breckenridge, andBohrer. In some of the alleged admissions, the declarant described participating in the disposal ofthe victim's body. In others, the declarant said that he had done something to the victim withoutspecifying what he had done, e.g., "I'll do you as I did [the victim]," and "I will never see a day inprison for what we did to [the victim]." In the remaining alleged admissions, the declarant saidthings to the effect that defendant did not commit the crime or that the victim would not befound, but did not directly connect himself to her disappearance.
Defendant also presented the testimony of William Pierce, who testified that he saw a manstrike a woman in the head near a van at the store on April 3, 1994, and that he believed, afterseeing a photograph of Steen in the newspaper, that Steen was the man he saw. Pierce furthertestified that the van he saw was not the van owned by defendant's brother. Pierce admitted,however, that he had not reported his observations at any time prior to July 2014, that even thenhe had initially believed that defendant was the man he saw, and that he had been shown a photoarray containing a photograph of Steen from 1988 and was unable to identify him. Pierce hadalso estimated that the man he saw was 35 to 45 years old. Defendant was 40 years old in April1994, and Steen was 23.
Steen, who was sentenced to life in prison without parole in 2011 for killing his wife and hiscousin in September 2010 (People vSteen, 107 AD3d 1608 [2013], lv denied 22 NY3d 959 [2013]), testified at thehearing, as did Breckenridge and Bohrer. They each denied abducting the victim or making theadmissions attributed to them, and Steen and Breckenridge further testified that they did notknow Bohrer in 1994. Wescott testified that she did not know anything about the crime, and thatshe was 17 years old in April 1994 and did not meet Breckenridge until later that year. There wastestimony at the hearing that Priest "always wanted to be the center of attention," and that thepolice did not think she was credible in light of "discrepancies in her story" and attempts on herpart to link the death of her second husband in 2010 to the abduction of the victim; thatBreckenridge was likewise known as "a talker" and "an attention getter" who was not to be takenseriously; that Bohrer was mentally unstable and obsessed with the case; and that the motorcycleclub referenced in Shaw's testimony did not exist until 2000.
The court denied defendant's motion, concluding, inter alia, that the CI information had beendisclosed to his attorney, that the alleged third-party admissions were inadmissible hearsay ratherthan declarations against penal interest, and that Pierce's testimony was not credible. The courtdid not specifically address defendant's actual innocence claim.
We reject defendant's contention that the court erred in denying that part of his motionalleging a Brady violation. The record supports the court's determination that defendantfailed to establish that the CI information was suppressed by the People (see People v Carrasquillo-Fuentes, 142AD3d 1335, 1339 [2016], lv denied 28 NY3d 1143 [2017]; People v Ulrich,265 AD2d 884, 884-885 [1999], lv denied 94 NY2d 799 [1999]; see generallyCPL 440.30 [6]; People v Fuentes,12 NY3d 259, 263 [2009], rearg denied 13 NY3d 766 [2009]). The conflictingtestimony of defendant's trial counsel and the trial prosecutor with respect to whether the CIinformation was disclosed, as well as the competing inferences to be drawn from documentaryand other evidence bearing on the issue, presented an issue of credibility that the court wasentitled to resolve in favor of the People (see People v Cox, 297 AD2d 589, 589 [2002],lv denied 99 NY2d 557 [2002]; see generally People v Campbell, 106 AD3d 1507, 1508 [2013],lv denied 21 NY3d 1002 [2013]). In view of our determination, we do not address thecourt's alternative grounds for rejecting defendant's Brady claim.
We also reject defendant's contention that the court erred in denying that part of his motionalleging newly discovered evidence. The decision whether to vacate a judgment of convictionbased on newly discovered evidence is addressed to the sound discretion of the motion court (see People v Backus, 129 AD3d1621, 1623-1624 [2015], lv denied 27 NY3d 991 [2016]; People v Deacon, 96 AD3d 965,967 [2012], appeal dismissed 20 NY3d 1046 [2013]), and "[i]mplicit in [this] ground for[vacatur] is that the newly discovered evidence be admissible" (People v Tankleff, 49 AD3d 160,182 [2007] [internal quotation marks omitted]; see Backus, 129 AD3d at 1624).
First, we conclude that the court was entitled to determine, in view of the circumstances ofPierce's identification of Steen, that his testimony was simply not credible (see People v Jimenez, 142 AD3d149, 157 [2016]; People vBritton, 49 AD3d 893, 894 [2008], lv denied 10 NY3d 956 [2008]; People vWatson, 152 AD2d 954, 955 [1989], lv denied 74 NY2d 900 [1989]). A hearingcourt's credibility determinations are "entitled to great weight" in light of its opportunity to seethe witnesses, hear the testimony, and observe demeanor (People v Smith, 16 AD3d 1081, 1082 [2005], lv denied 4NY3d 891 [2005]; see People vHincapie, 142 AD3d 886, 886 [2016]; see generally People v Bleakley, 69 NY2d490, 495 [1987]), and we do not agree with the dissent that Pierce's testimony presents anappropriate situation for us to substitute our own credibility determination for that of the hearingcourt (cf. Tankleff, 49 AD3d at 178-179).
Next, we conclude that the court properly determined that all of the alleged third-partyadmissions were hearsay not within any of the exceptions to the hearsay rule and were thereforeinadmissible (see generally People v Brensic, 70 NY2d 9, 14 [1987], remittituramended 70 NY2d 722 [1987]; People v Meadow, 140 AD3d 1596, 1598 [2016], lv denied28 NY3d 933 [2016], denied reconsideration 28 NY3d 972 [2016]). The hearsayexception for declarations against penal interest applies where (1) the declarant is unavailable totestify; (2) the declarant was aware when making the declaration that it was contrary to his or herpenal interest; (3) the declarant had competent knowledge of the relevant facts; and (4) there is"sufficient competent evidence independent of the declaration to assure its trustworthiness andreliability" (Brensic, 70 NY2d at 15; see People v Shortridge, 65 NY2d 309, 312[1985]; People v Settles, 46 NY2d 154, 167 [1978]). "The fourth factor is the 'mostimportant' aspect of the exception" (People v Shabazz, 22 NY3d 896, 898 [2013]). Where a declarationis offered to exculpate the defendant, the standard of admissibility is "more lenient," and" '[s]upportive evidence is sufficient if it establishes a reasonable possibility that thestatement might be true' " (People v Soto, 26 NY3d 455, 462 [2015]; see People v Pierre, 129 AD3d1490, 1492 [2015]; Deacon, 96 AD3d at 968).
Even assuming, arguendo, that the willingness of Steen, Breckenridge, Bohrer, and Wescottto testify at the motion hearing does not preclude the applicability of the exception fordeclarations against penal interest (seePeople v Oxley, 64 AD3d 1078, 1083-1084 [2009], lv denied 13 NY3d 941[2010]; cf. People v Sanchez, 95AD3d 241, 247-248 [2012], affd 21 NY3d 216 [2013]), we conclude that theexception is inapplicable. Several of the alleged admissions did not contain enough incriminatingdetail to show that the declarant was knowingly speaking against his or her penal interest (see generally People v Castor, 99AD3d 1177, 1180-1181 [2012], lv denied 20 NY3d 1010 [2013]), or that he or shehad competent knowledge of the underlying facts. More significantly, defendant failed toestablish that the alleged admissions were reliable (see People v Velazquez, 143 AD3d 126, 135 [2016], lv denied28 NY3d 1189 [2017]; People v Bedi, 299 AD2d 556, 556 [2002], lv denied99 NY2d 612 [2003]; People v Wallace, 270 AD2d 823, 824 [2000], lv denied95 NY2d 806 [2000]).
Wescott's statements in the recorded call, in particular, made little sense on their face, andshe recanted them shortly thereafter (seePeople v Buari, 50 AD3d 483, 484 [2008], lv denied 11 NY3d 735 [2008];People v Pugh, 236 AD2d 810, 811 [1997], lv denied 89 NY2d 1099 [1997]; cf. People v Bellamy, 84 AD3d1260, 1261-1262 [2011], lv denied 17 NY3d 813 [2011]). Even assuming, arguendo,that the court could have reasonably concluded that Wescott truthfully implicated Steen,Breckenridge, and Bohrer in her statements to Priest and then testified falsely at the hearing in anattempt to avoid the consequences of those statements, we conclude that the court was entitled toinstead resolve the issue of Wescott's credibility in favor of the People, thereby concluding thather hearing testimony was credible and her initial statements to Priest were not (see generallySmith, 16 AD3d at 1082). Unlike our dissenting colleague, we do not believe that Wescott'sstatements to Priest "bore persuasive assurances of trustworthiness" that would render themadmissible despite their hearsay nature (Chambers v Mississippi, 410 US 284, 302[1973]).
Apart from Pierce's testimony, which we have concluded that the court properly discredited,there was no evidence independent of the alleged admissions that tended to link Steen,Breckenridge, or Bohrer to the crime (cf.People v DiPippo, 27 NY3d 127, 137-140 [2016]; Oxley, 64 AD3d at 1082).Moreover, most of defendant's witnesses came forward only after the case attracted renewedmedia attention in 2014 (cf. Tankleff, 49 AD3d at 181-182); most of the allegedadmissions were made long after the crime and defendant's conviction (see generallyShortridge, 65 NY2d at 313); many of them were inconsistent with each other (seePeople v Feliciano, 240 AD2d 256, 257 [1997], lv denied 90 NY2d 1011 [1997];People v Nicholson, 108 AD2d 929, 930 [1985]; cf. DiPippo, 27 NY3d at 138);and, as described above, the hearing testimony cast significant doubt on the credibility of at leastPriest, Breckenridge, and Bohrer (see People v Penoyer, 135 AD2d 42, 44-45 [1988],affd 72 NY2d 936 [1988]; People v Thompson, 148 AD2d 763, 764 [1989], lvdenied 74 NY2d 748 [1989]; see generally Shortridge, 65 NY2d at 313). "[T]here isno rule requiring the automatic admission of any hearsay statement" (People v Hayes, 17 NY3d 46, 53[2011], cert denied 565 US 1095 [2011]), and " '[c]orroboration of a hearsaydeclaration is not furnished by merely producing additional hearsay testimony' " with noindicia of reliability (Matter of Comstock v Goetz Oil Corp., 11 AD2d 847, 847 [1960];cf. Chambers, 410 US 284 at 300-301). Although defendant presented evidence thattrained dogs detected the possible presence of human remains near a "collapsed structure" in thegeneral area where Steen allegedly told Priest the victim's body was buried, no remains wereactually found there, and we conclude that the evidence regarding the dogs is too equivocal on itsown to show a reasonable possibility that Steen's alleged admission to Priest might be true.
In our view, the alleged weaknesses in the People's trial proof identified by the dissent do nottend to establish that the alleged admissions were reliable. In any event, we conclude that therewas compelling circumstantial evidence at trial placing defendant at the store on the morning ofthe crime. It is undisputed that defendant's brother was there, and, whereas defendant testified attrial that he was not in his brother's company that morning or the previous night, the Peoplepresented testimony that defendant and his brother were together at a bar the night before thecrime and the van owned by defendant's brother was at defendant's home shortly after the crimewas committed. As the hearing court noted, there is no comparable evidence concerning Steen,Breckenridge, or Bohrer.
In view of the inadmissibility of the alleged third-party admissions, we conclude that thecourt properly determined that the newly discovered evidence was not "of such character as tocreate a probability that" the verdict would have been more favorable to defendant if it had beenreceived at trial (CPL 440.10 [1] [g]; see Backus, 129 AD3d at 1624-1625; Bedi,299 AD2d at 556; People v Jones [appeal No. 1], 256 AD2d 1172, 1172 [1998], lvdenied 93 NY2d 972 [1999]; cf.People v Wong, 11 AD3d 724, 725-727 [2004]).
The remaining evidentiary rulings challenged by defendant did not violate his right to presenta defense. Evidence of other crimes committed by Bohrer was not admissible as "reverseMolineux" evidence on the issue of identity (DiPippo, 27 NY3d at 138), becausethose crimes were not similar enough to the abduction of the victim to establish a distinctivemodus operandi (see People vLittlejohn, 112 AD3d 67, 76-77 [2013], lv denied 22 NY3d 1140 [2014]; cf.DiPippo, 27 NY3d at 139-141). Furthermore, even assuming, arguendo, that "a more relaxedstandard" of admissibility governs when a defendant seeks to introduce evidence of other crimescommitted by a third party (DiPippo, 27 NY3d at 139; see e.g. State v Garfole, 76NJ 445, 452-453, 388 A2d 587, 591 [1978]), we conclude that the other crimes allegedlycommitted by Bohrer were too remote from and dissimilar to the instant crime to be relevant todefendant's guilt or innocence (seePeople v Schulz, 4 NY3d 521, 528-529 [2005]; People v Willock, 125 AD3d 901, 902-903 [2015], lv denied26 NY3d 1012 [2015]; People vClarkson, 78 AD3d 1573, 1573-1574 [2010], lv denied 16 NY3d 829 [2011];see generally Garfole, 76 NJ at 452-453, 388 A2d at 591). The rest of the evidence inquestion was properly excluded as speculative (see People v Gamble, 18 NY3d 386, 398-399 [2012], reargdenied 19 NY3d 833 [2012]; Peoplev Johnson, 109 AD3d 1187, 1187-1188 [2013], lv denied 22 NY3d 1041[2013]), or of no more than marginal relevance to the issues at the hearing (see People v Black, 90 AD3d1066, 1067 [2011], lv denied 18 NY3d 992 [2012]; see also People v Williams, 94 AD3d1555, 1556-1557 [2012]).
Finally, we reject defendant's contention that the court erred in "failing to address and granthis actual innocence claim." Given the respective standards of proof for a newly discoveredevidence claim and an actual innocence claim (compare People v Hamilton, 115 AD3d 12, 24-27 [2014],with CPL 440.10 [1] [g]; 440.30 [6]), new evidence that is insufficient to create aprobability of a more favorable verdict warranting a new trial logically cannot establish ameritorious claim of actual innocence. We thus conclude that the court's rejection of defendant'snewly discovered evidence claim, which is supported by the record, constituted an implicitrejection of his actual innocence claim as well (cf. People v Chattley, 89 AD3d 1557, 1558 [2011]), and we affirmthe order.
All concur except Centra, J., who dissents and votes to reverse in the followingmemorandum.
Centra, J. (dissenting). I respectfully dissent. I agree with the majority that County Courtproperly rejected that part of defendant's motion alleging a Brady violation inasmuch asdefendant did not meet his burden of establishing that the alleged Brady material wassuppressed by the People. I further agree with the majority that the court properly precludeddefendant from introducing certain evidence that did not involve third-party admissions. I alsoagree with the majority that defendant failed to establish his entitlement to relief through anactual innocence claim (see People vDeacon, 96 AD3d 965, 970 [2012], appeal dismissed 20 NY3d 1046 [2013]). Iagree with defendant, however, that he established his entitlement to a new trial based on newlydiscovered evidence. I would therefore reverse the order, grant the motion, vacate the judgmentof conviction, and grant a new trial.
Eighteen-year-old Heidi Allen was working alone at a gas station convenience store onEaster morning, April 3, 1994, when she went missing. Heidi was never found and is presumeddead. In August 1994, defendant and his brother, Richard Thibodeau (Richard), were chargedwith her kidnapping. After separate jury trials, defendant was convicted of kidnapping in the firstdegree (Penal Law § 135.25 [3]) and sentenced to an indeterminate term of 25 yearsto life, and he remains incarcerated. Richard was acquitted.
At the trial, the owner of the store, which was at the corner of Route 104 and 104B in theTown of New Haven, testified that the last transaction at the store as reflected on the cashregister receipt was the purchase of two packs of cigarettes at 7:42 a.m., and no money wasmissing from the register. Richard was the customer who made that purchase. There was apurchase at 7:41 a.m. of a pack of cigarettes and two newspapers, which was confirmed by thetestimony of that customer. He testified that he arrived at the store after passing a slow-movingvan that he identified as a van that belonged to Richard. Richard's GMC van was distinctive inappearance; it was a large white van with black doors on the sides and back, a black stripe downthe side, and rust in spots. The customer made his purchase, testifying that there was no one elseinside the store besides the clerk.
As the customer was exiting the store, he saw a man who was about five feet six inches orseven inches tall, weighed about 145 pounds, and had a mustache and wore a baseball cap. Aninvestigator testified that Richard was five feet seven inches tall, weighed approximately 155pounds, and had grey hair and a mustache, so the description given by the customer matched thatof Richard, and in fact the customer testified that it looked like Richard. The man was standingoutside next to the driver's side of that same van the customer had passed, which was parked"about parallel" in front of the store and was running. They walked past each other as the manproceeded to the store and the customer walked toward his vehicle. After the customer enteredhis vehicle and pulled forward, he saw the van move forward as well, three or four feet towardthe front double doors, with the passenger side of the van closest to the doors. Both vehiclesstopped, and the customer then drove around the van and saw it move forward again. The Peoplecontend that this showed that someone else was in the van while Richard was in the store.However, the cash register receipt showed that Richard made his purchase just one minute afterthis customer, and the customer testified that he entered his vehicle and opened a pack ofcigarettes before moving his vehicle. It therefore could have been simply Richard who enteredthe van and started moving it.
Another customer testified that he pulled into the convenience store parking lot atapproximately 7:41 a.m. and did not see anyone in the lot. He went inside the store to buy anewspaper but no one was there. After waiting a few minutes and looking around the store, hewent outside and flagged down a passing sheriff's deputy who was stopped at the intersection.The deputy testified that he was flagged down at approximately 7:45 a.m. He spoke with thecustomer and then notified dispatch of suspicious activity at 7:55 a.m. Based on the timesstamped on the cash register receipt, the clock on the cash register having been verified by thepolice, and the time recorded on the police dispatch, there was a very short window of timebetween 7:42 a.m. and 7:55 a.m. when Heidi was abducted. The time period was even shorterconsidering that the customer who flagged down the deputy spent a few minutes waiting insidethe store, and a couple more minutes passed while the deputy spoke with the customer beforenotifying dispatch. The deputy found no signs of a struggle inside the store. The front door wasunlocked, but the other doors were secured.
Five days after Heidi's disappearance, Christopher Bivens, who does vehicle autobody repair,contacted the police about observations he had made on April 3, 1994, i.e., he saw two men and awoman arguing outside the store. He could not describe them or any vehicles that were present.He thought that there was a van there but he was not sure. The police interviewed Bivens onApril 18th, and he said that the van was light blue with dark trim but could not say whether it hadpinstripes. He admitted that the police drove him past Richard's van on April 20th, and he toldthem that the van was the right style but the wrong color. The following day, the police showedhim a photograph of Richard's van showing the passenger side and back doors, and the witnessdid not think that was the van, either. He was shown a second photograph of Richard's vanshowing the black side doors, and he was now 80% certain that was the van. When shownanother photograph of Richard's van the next day, the witness now said that he was positive itwas Richard's van that he saw the morning of Heidi's disappearance because he recognized therust spot over the rear wheel and the trailer hitch.
At trial, Bivens testified that, as he approached the store at approximately 30 miles per hour,he saw two white males and a white female outside the store, and the man closest to the store washolding the "struggling" female in a bear hug. Bivens described this man as "strong" and "husky."The other man was older and was walking toward a van that the witness identified as Richard'svan. He said that the stripe on the van caught his attention because it was not ordinary to have itthere and must have been painted on. He also noted the rust on the van, which, as an autobodyrepairman, he spotted all the time. Bivens told the police that both men appeared to be five feeteleven inches tall, husky, and between 30 and 40 years old. A police investigator describeddefendant as being five feet ten inches tall and weighing 180 to 190 pounds, with dark brownhair and a mustache. Defendant testified at trial and described himself as being five feet eightinches or nine inches tall and weighing 150 to 160 pounds. Bivens testified that the man holdingthe woman was a few inches taller than her. Heidi's boyfriend described her as five feet teninches tall with dirty blonde hair.
Nancy Fabian testified that she left her house on Easter morning and arrived in the Village ofMexico at around 7:45 a.m. When she turned on Route 104, a van came up very fast behind herand was only two or three feet away. The van, which she identified as belonging to Richard, wasswerving back and forth. A white male with dark hair and a "scruffy face," like with a beard andmustache, was driving and was using his right arm to try to "control something in the back of thevan or push something down." Fabian reported what she observed to the police in early June andsaid that the van was light blue, which Richard's van is not. She also knew that there wassomething on the middle of the van, but was not sure if it was a stripe. The police then showedher Richard's van, and she made a positive identification.
Defendant testified that he and his girlfriend went to a friend's house the night before Easterand stayed past midnight, then went straight home and remained there until they were awakenedby Richard's phone call shortly after 10:00 a.m. He denied seeing Richard on April 3, 1994.Some witnesses at trial corroborated his testimony, while others contradicted it. A bartendertestified that defendant and Richard were at a bar drinking together the night before Heididisappeared, and they left the bar between 12:00 and 12:30 a.m.
One of defendant's neighbors testified that he drove past defendant's house on Eastermorning around 7:30 a.m. and saw tire tracks coming out of the driveway from the inch of wetsnow they had, and there were no vehicles in the driveway. When he was pulling into a gasstation, he saw Richard's van as he approached an intersection with Route 104. The neighborthen returned home and saw Richard's van and two other vehicles in defendant's driveway. Whenthe neighbor contacted the police two months after the incident, he did not tell them that he sawRichard's van at an intersection; he did not remember seeing that until almost a year after theincident. The neighbor's son testified that he heard yelling and screaming between a man and awoman from defendant's house around 10:45 a.m. on Easter that lasted about a half hour. His14-year-old brother also heard the yelling.
Another neighbor, who was 13 years old at the time of her testimony, testified that she sawRichard's van in defendant's driveway on Easter morning at around 7:50 a.m. She did not tellanyone about the van until 13 months after Heidi disappeared. Another neighbor and his wifetestified that, around 9:00 a.m. on Easter morning, they saw a van resembling Richard's vanparked on the road at the end of defendant's driveway. They saw defendant standing outside thevan talking to a man with grey hair on the passenger side of the van. They did not report this tothe police until seven months after Heidi disappeared, even though they gave other statements tothe police on earlier occasions.
On the other hand, two other neighbors testified that they never observed a van at defendant'sresidence on Easter morning, and never heard any loud voices. Richard's girlfriend testified thatRichard left their residence around 7:30 a.m. and returned around 7:50 a.m. with two packs ofcigarettes. They left their house around 8:30 a.m. to go to her grandparents' house. Thegirlfriend's relatives testified that Richard arrived at the grandparents' residence around 8:45 a.m.or 9:00 a.m. that morning. Two of Richard's neighbors testified that they saw his van parked inhis own driveway between 8:15 a.m. and 8:45 a.m. Three other witnesses confirmed that theysaw Richard's van headed toward the grandparents' residence around 8:45 a.m. Defendant'sgirlfriend corroborated his testimony about being inside his residence on Easter and not seeingRichard that day.
Richard and his girlfriend testified that, after they saw something on the television while theywere at the grandparents' house, Richard called the police shortly after 10:00 a.m. to let themknow he was at the store that morning, and also called defendant. The police went to thegrandparents' residence, saw Richard's van in the driveway, and took a statement from Richard,who was cooperative and showed the packs of cigarettes that he had purchased. On April 9th,Richard consented to a search of his van. Prints were lifted from the van, but none was a matchwith Heidi. In addition, the van, which the police described as cluttered, was vacuumed and thematerial was sent to the FBI for processing; nothing matched Heidi. A forensic scientist testifiedthat, if there was a struggle involved, it was more likely that there would be some sort of transfer.An investigator took impressions from tire marks left in the front of the store, which he believedlooked like an acceleration mark, like "if somebody was leaving the store in a hurry." Theimpressions from Richard's van did not match.
The other evidence admitted at trial included the testimony of Heidi's boyfriend, whotestified that he met defendant about five months before Heidi disappeared, and the boyfriendand Heidi saw defendant about four or five times at a bar or bowling alley during that five-monthperiod. Defendant knew Heidi by name and commented to the boyfriend that he "had anattractive girlfriend." Defendant admitted that he met Heidi on a couple of occasions.
Finally, the evidence at the trial included the testimony of two inmates. Defendant wasincarcerated in Massachusetts in June 1994, where he was held in the same block as RobertBaldasaro and James McDonald, both of whom testified at trial that defendant implicated himselfin Heidi's kidnapping. Defendant testified that he would speak with Richard and his girlfriendover the phone while in jail, and they would give him updates on the investigation, whichdefendant would then discuss with the two inmates. Baldasaro testified that defendant, while notadmitting his involvement in Heidi's disappearance, told him that he knew she was dead and noone would find her. He also said that there was no struggle at the store so she must have knownthe person with whom she left. Baldasaro further testified that defendant said that he and Richardwent to speak with Heidi regarding a disagreement over a drug deal, they drove her by the woodsnear defendant's house to talk to her, and then Richard drove Heidi back to the store. WhenRichard returned to the store to get cigarettes, no one was at the store. Baldasaro asked defendanthow she died, and defendant responded that her head had been bashed in with a shovel.McDonald testified that he was in the cell with Baldasaro and heard defendant say that he went tothe store in Richard's van, that Heidi was killed with his shovel, and that they would never findher.
Defendant was convicted as charged, and we affirmed the judgment of conviction on appeal(People v Thibodeau, 267 AD2d 952 [1999], lv denied 95 NY2d 805[2000]).
On July 30, 2014, defendant moved to vacate the judgment pursuant to CPL 440.10 (1) (b)and (h) on the ground that the People withheld Brady material and thus engaged inmisrepresentation or fraud, and pursuant to CPL 440.10 (1) (g) on the ground of newlydiscovered evidence. The Brady material involved the fact that Heidi was a confidentialinformant for the police, a fact of which defendant was allegedly not aware until after the trial.As stated at the outset, I agree with the majority that there was no Brady violation. Thenewly discovered evidence was based upon a police interview in early 2013 with Tonya Priest inwhich she disclosed that, in 2006, James Steen told her that he, Roger Breckenridge, and MichaelBohrer had abducted Heidi. After that, the police recorded a conversation between Priest andJennifer Wescott, who was 17 years old at the time Heidi disappeared and had beenBreckenridge's girlfriend for years thereafter. Wescott made various statements regarding Heidi'sabduction but never implicated herself in the kidnapping. The police thereafter interviewedWescott on two occasions. In addition, the defense proferred the statements of numerouswitnesses implicating Steen, Breckenridge, and/or Bohrer in Heidi's disappearance.
The court held a hearing on the motion. William Pierce testified that he was stopped at anintersection in front of the store on Easter morning in 1994 and saw a man between 35 and 45years old, husky, and with a beard strike a woman in the back of the head near a white van with alot of rust on the side. The woman's hair appeared dark; not black, but not real light, either.Someone inside the van opened the side door and the man outside the van grabbed the womanand started toward the door. Pierce kept driving. He had believed that this man was defendantafter drawing a beard on a picture of defendant, thought it looked "close enough," and figuredthat the police knew more than he did, so he never contacted the police. In July 2014, Pierce sawrenewed news coverage of Heidi's case and a statement by the sheriff that one thing that botheredhim in his career was Heidi's case. Pierce decided to come forward and report what he saw, andhe confirmed with the police that defendant was the right person in custody. However, afterseeing a picture in the newspaper about 10 days later of Steen with a full beard and mustache,Pierce realized that it had actually been Steen who he had seen striking the woman. This photo ofSteen was taken at the time of an arrest in 2010. Pierce also testified that the van he saw was notRichard's van. The police showed Pierce a picture of Steen from 1988 in which he did not have abeard, and Pierce was not able to identify him.
The parties agreed to allow witnesses to testify regarding alleged third-party admissions bySteen, Breckenridge, and Bohrer, and the court would reserve decision on the ultimateadmissibility of those statements. The parties also consented to Priest's statement being allowedinto evidence. Priest stated that, in 2006, Steen told her that he, Breckenridge, and Bohrer droveBohrer's white van to the store, Steen grabbed Heidi from behind the counter, and Breckenridgeassisted Steen in taking Heidi out the side door of the store. Steen had Heidi in a bear hug, gother in the van, and they "flew out of there like a bat out of hell." They took Heidi toBreckenridge's garage on Rice Road, where they beat her up because she threatened to report adrug deal. Steen said that Wescott was at the residence and was upset with them for bringingHeidi there. They then took her into the woods to a cabin, cut her up, and placed her body underthe floor. The cabin was through thick woods, across railroad tracks, and through another spot ofthick brush. In the opening following the thick brush, there was a small cabin with a wood stove.Steen said that Breckenridge and Wescott moved to Florida because the authorities weresearching behind Breckenridge's house, and defendant was implicated only because he had awhite van. Priest knew that Bohrer had a big white van at the time of Heidi's disappearance.
Megan Shaw testified that, in 2010, Steen told her that he disposed of Heidi's body. Whilenot admitting his involvement in her abduction or killing, he said that he helped others dispose ofher body in a cabin in the woods. Ronald Clarke testified that, a few years after defendant's trial,Steen told him that Heidi had "gone to Canada" and that defendant and Richard were notinvolved. Steen did not say that he abducted or killed Heidi.
Amanda Braley testified that, in 2003, when she was with Breckenridge and Wescott,someone mentioned Heidi's name, and Breckenridge laughed and said "he took that bitch to thescrap yard in the van, they had it crushed, and that she was shipped to Canada." Breckenridgethen pointed to the sky and said, "See you, bye." Wescott was "irritated" and backhandedBreckenridge and said, "You shouldn't be talking about that s. . ., Rog," to whichBreckenridge responded, "What, Jen, it's done and over with, and besides, nobody's ever going tofind her." Around that same time period, something came on the television about Heidi, andBreckenridge laughed and looked at Wescott, prompting Wescott to say, "Don't look at me Rog, Ididn't have anything to do with it. I only took the van to Murtaugh's." Braley further testified that,in 2006 or 2007, Steen made a comment that he was not afraid to go to jail, then paused and said,"I can, however, tell you I will never see a day in prison for what we did to Heidi."
Christopher Combes testified that, in the early 2000's, Breckenridge mentioned Heidi andtold him that "[w]e chopped her up, we put her in a wood stove and put her in a vehicle and senther to Canada." Combes did not believe Breckenridge. Jessica Howard testified thatBreckenridge said on several occasions that Heidi was killed for being "a rat" with regard todrugs, but he never said that he killed her or knew where her body was buried, just that shewould not be found. Joe Mannino, one of Steen's fellow inmates, testified that Steen told himthat defendant and Richard had nothing to do with Heidi's kidnapping and that he hauled the vanused in Heidi's kidnapping to Canada and scrapped it. He told Mannino that Heidi was "a rat,"but he never said that he abducted or killed Heidi.
The police recorded a phone call on March 2, 2013 between Priest and Wescott. Priest toldWescott what Steen had told her, i.e., that they took Bohrer's van to the store and then "broughther to [Wescott's] house" and Wescott "flip[ped] out." Wescott responded that "in [her] ownhead" she "dropped that s. . . . . . about ten years ago . . .but it took me a while." Later, Priest asked Wescott if she even knew it was Heidi they hadbrought there, and Wescott said no, that "they didn't even bring her in the house, they made hersit in the van." However, she "put two and two together" and later knew it was Heidi. WhenPriest asked who actually killed her, Wescott said that she had no idea, that it did not happenaround her. Wescott said that it "bother[ed] her to talk about it" and, at the time it happened, shecould not say anything to anybody because she was scared of all of them. Wescott said that thepolice "swarmed Grandma Breckenridge's house," and she agreed with Priest that was why sheand Breckenridge moved to Florida. She said that she never thought about turning inBreckenridge; she "would never open a can of worms like that," she was "not doing theinvestigator's job," and they would just laugh in her face and say somebody has already beenconvicted.
Wescott testified at the hearing that she gave a statement to the police in March 2013 andagain in August 2014. Before she gave her first statement, she texted Priest and asked if she wasa cop. She also sent a text message to Richard Murtaugh, who runs a junkyard whereBreckenridge used to work. After Wescott's first statement to the police, Breckenridge, who wasincarcerated, sent a message to her to keep her mouth shut about the Heidi case. Wescott told thepolice during her first interview, before she knew that the call with Priest had been monitored bythe police, that she asked Priest "what the hell are you talking about," and told Priest that she wascrazy when Priest asked her about Heidi's disappearance, but in fact Wescott made no suchstatements during that recorded conversation. She also told the police that she did not sayanything to Priest about a van being brought to her house with a girl in it, but in fact she did.Wescott testified that she told "a lot of lies" to Priest. If she told Priest that Heidi was in the van,she did so only to "shut [Priest] up." Wescott testified that she did not meet Breckenridge untilthe summer of 1994 and met Bohrer in 2007. A witness, however, testified that he saw Wescottand Breckenridge together in 1991 or 1992. In addition, in her first statement to the police,Wescott gave an alibi for Breckenridge on the Easter morning that Heidi disappeared, i.e., he waswith her.
Wescott told the police that she did not know what happened to Heidi, that she would haveknown if Steen, Breckenridge, and Bohrer had done anything, and that she would have comeforward if she knew anything. However, she admitted texting someone that she gave a falsestatement in connection with the investigation. In her August 2014 statement to the police,Wescott said that Breckenridge told her in 1995 that all he knew was that Heidi was burned in awood stove and taken care of in a van, but he did not explain how he knew that information.
Wescott denied ever living on Rice Road. A witness testified that her father owned propertyon Rice Road and rented out a trailer on it to Wescott's family in 1993 or 1994. Another witness,however, testified that she lived on that property from 1993 until 1996. A collapsed cabin waslocated off of Rice Road beyond a heavily wooded area, but not near railroad tracks, and therewas no wood stove there. The Medical Examiner conducted a forensic examination of the site inJuly 2014 after a cadaver dog had indicated at a particular location; the examination foundnothing of significance. In October 2014, two other cadaver dogs detected a scent of humanremains at the area.
Steen, who is incarcerated for murdering his wife and his cousin in September 2010 (People v Steen, 107 AD3d 1608[2013], lv denied 22 NY3d 959 [2013]), testified that he hauled scrap for Murtaugh in1994, sometimes to Canada. Steen knew Breckenridge and Wescott in 1994. Breckenridge toldhim that Steen had hauled a van to Canada that had Heidi's remains in it, but Steen believed thatBreckenridge was full of "hot air." Steen testified that, "[k]nowingly, [he] had nothing to do withany of this Heidi Allen stuff." Steen said that he was not a snitch and, if he knew who kidnappedHeidi, he would not tell, but he did not know. Steen denied discussing Heidi's disappearance withPriest and denied telling Shaw that he had disposed of Heidi's body.
Breckenridge, who was incarcerated for stealing, testified that he worked in Murtaugh'sjunkyard in 1994 and knew Steen at that time. He denied saying anything to Steen or anyone elseabout a van that Heidi may have been abducted in or where her remains were. He denied everliving on Rice Road.
Danielle Babcock used to work for Bohrer in 2001 and 2002 and testified that he wouldmake comments that he would "do [her] like he did Heidi." Bohrer testified that he startedscrapping vehicles at Murtaugh's junkyard prior to Heidi's abduction. He denied threateningBabcock.
The court denied the motion, and we granted defendant leave to appeal.
A court may vacate a judgment upon the ground that "[n]ew evidence has been discovered. . . which is of such character as to create a probability that had such evidence beenreceived at the trial the verdict would have been more favorable to the defendant" (CPL 440.10[1] [g]). The defendant "must prove that there is newly discovered evidence: (1) which willprobably change the result if a new trial is granted; (2) which was discovered since the trial; (3)which could not have been discovered prior to trial; (4) which is material; (5) which is notcumulative; and[ ] (6) which does not merely impeach or contradict the record evidence" (People v Bryant, 117 AD3d 1586,1587 [2014] [internal quotation marks omitted]; see People v Backus, 129 AD3d 1621, 1623 [2015], lv denied27 NY3d 991 [2016]). The determination of such a motion rests within the sound discretionof the hearing court (see Backus, 129 AD3d at 1623-1624; Deacon, 96 AD3d at967; People v Tankleff, 49 AD3d160, 178 [2007]).
In my opinion, defendant met his burden of establishing all six factors by a preponderance ofthe evidence, and I therefore conclude that the court abused its discretion in denying the motion(see CPL 440.30 [6]; Tankleff, 49 AD3d at 179-180). The only dispute in thiscase is the first element, i.e., whether the newly discovered evidence would probably change theresult if a new trial was granted.
A. Pierce's Testimony
Pierce was the only person who provided eyewitness testimony at the hearing, as opposed toproviding hearsay evidence on statements made by Steen, Breckenridge, or Bohrer. The courtconcluded that Pierce's testimony was not credible and could not be the basis for a new trial. Idisagree. An appellate court, of course, may make its own credibility determinations (seeTankleff, 49 AD3d at 178-179), and I conclude that the court erred in rejecting Pierce'stestimony as not credible. Unlike some of the other witnesses at the hearing, Pierce did not comeforward after the renewed media coverage in 2014 to implicate Steen, Breckenridge, or Bohrer.Instead, he went to the police to report what he had seen on the day of Heidi's disappearance andto confirm that defendant was the person he saw and that they had the right man in custody. Itwas not until he saw a photograph of Steen in the newspaper over a week later that he realized hehad made a mistake. At the hearing, he testified that Steen was the man he saw striking thewoman.
The court found that Pierce was not credible because he was unable to identify Steen from aphotograph that the police showed him. However, Steen was 23 years old at the time of Heidi'sdisappearance in 1994, and the police showed Pierce a photograph of Steen from 1988, when hewas only 17 years old and without a beard. The court also found Pierce not credible because hetestified that there was slush on the ground, but the photographs taken at the store showed only apartially wet road. Other witnesses at the trial, however, similarly testified that there was snow orslush on the road early that morning. Indeed, one of defendant's neighbors testified that he sawtire tracks in the snow/slush that was in defendant's driveway. The court also did not creditPierce's testimony because he did not call the police to report what he saw, but the same could besaid of Bivens, who waited five days before contacting the police because he also did not want toget involved. Pierce explained that he did not come forward at the time of defendant's trialbecause he believed that the police had the right person in custody. The court also suggested thatPierce's memory of the man he saw that morning was tainted by the photographs he had seen inthe newspaper. While that may be true, the same could be said of the witnesses at trial regardingtheir identification of Richard's van, some of whom did not come forward until many monthsafter the incident.
To be sure, some aspects of Pierce's description of the events he saw that morning werequestionable, such as his testimony that the woman he saw had dark hair, when Heidi's hair wasdirty blonde, and his testimony that the man he saw was 35 to 45 years old, when Steen was infact only 23 years old at the time. However, there was no showing that his description of how theman otherwise looked, i.e., bearded and husky, was not consistent with how Steen appeared in1994. In addition, even setting aside Pierce's identification of Steen as the perpetrator, Pierce alsotestified that the white van he saw that morning was not Richard's van. This isnoteworthy considering that the identification of Richard's van by Bivens at trial was not veryconvincing. When he first contacted the police, Bivens was unable to identify the van he saw thatmorning as Richard's van, and he actually told the police that it was not Richard's van. At trial, hetestified that the stripe on the van caught his attention, yet he could not tell the police when heinitially approached them whether the van had pinstripes. After the police gave him a night tothink about it, Bivens then told the police that Richard's van was the one that he saw. He knewthat because of the rust spot over the rear wheel and the trailer hitch. Pierce, however, describedthe white van that he saw that morning as having a lot of rust on the side. It stands to reason thatthe van that Bivens actually saw was the same van that Pierce saw, which was not Richard'svan.
Fabian had identified Richard's van as the one she saw that came up very fast behind her andswerved back and forth. She told the police that the van was light blue, but Richard's van waswhite and black. In addition, the van remained behind her the entire time, and she saw only thefront part of the van.
Bivens and Pierce were the only ones to witness Heidi's abduction. In several respects, theirtestimony was similar. Both described the man abducting Heidi as strong, husky, and with abeard, and both testified that she was placed in a white van with rust on the side. Bivensidentified the van he saw as Richard's, but Pierce testified that it was not. This conflictingtestimony, along with the absence of any forensic evidence tying defendant to the abduction andthe absence of any eyewitness evidence identifying defendant as the perpetrator, leads me toconclude that Pierce's testimony would probably change the result of the trial (see People v Bailey, 144 AD3d1562, 1564 [2016]).
B. Hearsay Evidence
With respect to the remaining evidence, the court concluded that the evidence would not beadmissible at trial because it was hearsay not within any exception, and therefore defendant didnot establish his entitlement to a new trial. I agree that "[i]mplicit in th[e] ground for vacating ajudgment of conviction is that the newly discovered evidence be admissible" (Backus,129 AD3d at 1624 [internal quotation marks omitted]). Indeed, without considering Pierce'stestimony, that concept is critical to the resolution of this case. The People conceded at oralargument that, if all the evidence at the hearing was admissible evidence, it may be enough towarrant a new trial. Contrary to the conclusion of the majority, I conclude that at least some ofthe third-party admissions would be admissible at trial as declarations against penal interest.
Out-of-court statements that are introduced to prove the truth of the matters they assert arehearsay, and are admissible only if they fall within a recognized exception to the hearsay rule(see People v Brensic, 70 NY2d 9, 14 [1987], remittitur amended 70 NY2d 722[1987]). One such recognized exception is the declaration against penal interest. "This exceptionto the hearsay rule recognizes the general reliability of such statements, notwithstanding theabsence of the declarant to testify, because normally people do not make statements damaging tothemselves unless they are true" (id.). "A statement may be admitted as a declarationagainst penal interest where: the declarant is unavailable as a witness at trial; the declarant wasaware the statement was against his or her penal interest when it was made; the declarant hadcompetent knowledge of the facts underlying the statement; and 'supporting circumstancesindependent of the statement itself . . . attest to its trustworthiness andreliability' " (People vDiPippo, 27 NY3d 127, 136-137 [2016]; see People v Ennis, 11 NY3d 403, 412-413 [2008], cert denied556 US 1240 [2009]; Brensic, 70 NY2d at 15). With respect to the final requiredelement, i.e., the reliability of the statement, "there must be some evidence, independent of thedeclaration itself, which fairly tends to support the facts asserted therein" (People vSettles, 46 NY2d 154, 168 [1978]). Where, as here, the declarations exculpate the defendant,they are subject to a more lenient standard and are admissible "if the supportive evidence'establishes a reasonable possibility that the statement might be true' " (DiPippo,27 NY3d at 137; see People vMcFarland, 108 AD3d 1121, 1122 [2013], lv denied 24 NY3d 1220 [2015];Deacon, 96 AD3d at 968). "Whether a court believes the statement to be true is irrelevant"(Settles, 46 NY2d at 170). If there is a possibility of trustworthiness, "it is the function ofthe jury alone to determine whether the declaration is sufficient to create reasonable doubt ofguilt" (id.).
Defendant submitted evidence at the hearing regarding statements made by Steen,Breckenridge, and Bohrer that he contends fall within the exception. All three of those witnessestestified at the hearing, thus seemingly showing that the first element cannot be met, but Iconclude that this element is met where, as here, the witnesses testified but denied making thestatements (see People v Oxley, 64AD3d 1078, 1083-1084 [2009], lv denied 13 NY3d 941 [2010]).
In my opinion, the statements of at least Priest, Braley, and Combes would be admissible attrial. Priest stated that Steen told her in 2006 that he, Breckenridge, and Bohrer kidnapped Heidiby taking her from the store and placing her in Bohrer's white van. He further told her that theybeat her up, took her into the woods to a cabin, cut her up, and placed her body under the floor.Braley testified that Steen said in 2006 or 2007 that he would never see a day in prison for whatthey did to Heidi, and Combes testified that in the early 2000's Breckenridge mentioned Heidiand said that they chopped her up, put her in a wood stove, put her in a vehicle, and sent her toCanada. These statements were against Steen's and Breckenridge's penal interests inasmuch asthey admitted abducting and killing Heidi.
The court found that Priest was not credible because the cabin that was located on Rice Roadwas in thick brush in the woods, not near an open field, and it was not near railroad tracks anddid not have a wood stove. There was, however, a cabin found off of Rice Road in the thickwoods, and three different cadaver dogs alerted to the presence of human remains at that site,even though a forensic examination was unable to find anything of significance. The court alsofound that Braley's testimony was not trustworthy or reliable because she did not recite Steen'sstatements in the affidavit she gave to defense counsel in 2014. Braley lived with Wescott'sparents in 2002 or 2003 and knew Wescott, Breckenridge, and Steen. Braley's affidavit stated ingeneral that Steen and Breckenridge made admissions regarding a van being crushed atMurtaugh's that was then transported to Canada. Braley testified that she did tell defense counselabout Steen's specific statement, but it was not included in the affidavit. With respect to Combes,the court did not find him reliable because Combes himself did not believe Breckenridge and didnot come forward until 2014. Combes worked with Breckenridge at the time he made hisadmission, and Combes testified that he did not report the admission to the police until thesummer of 2014. He did not want to get involved, but he mentioned it to an officer who was afriend of his, who then had an investigator contact him. In determining the reliability of adeclarant's statement, "[w]hether a court believes the statement to be true is irrelevant"(Settles, 46 NY2d at 170), and I similarly conclude that it is irrelevant whether Combesbelieved the statement to be true.
In determining the admissibility of a declaration against penal interest, "[t]he crucial inquiryfocuses on the intrinsic trustworthiness of the statement as confirmed by competent evidenceindependent of the declaration itself" (id. at 169). Contrary to the court's determination, Iconclude that the supportive evidence establishes a reasonable possibility that these statementsmight be true (see generally DiPippo, 27 NY3d at 137).
Competent evidence independent of the declarations included the fact that witnesses testifiedthat Heidi was abducted by men in a white van, Bohrer had a white van, and Steen, Breckenridge,and Bohrer worked for or did business with Murtaugh, and Steen hauled scrap for Murtaugh toCanada. Inasmuch as no eyewitnesses could place defendant at the store when Heidi wasabducted, at the trial the People relied on testimony regarding the presence of Richard's van at thestore, on Route 104, and at defendant's residence that morning. The evidence at the hearing nowshowed that there may have been another van at the store that morning. Priest said that she knewthat Bohrer had a white van at the time of Heidi's disappearance. Pierce testified at the hearingthat he saw a man strike a woman outside the store and place her into a white van, but it was notRichard's van. At the trial, Bivens and Fabian identified the van that they saw the morning of theincident as Richard's van, but Richard's van was also a white van, albeit with black doors andtrim. Notably, Bivens told the police that he saw a van when he first reported the incident, but hewas unable to identify Richard's van as the van that he saw until the third time that he was showna photograph of the van. Fabian testified at trial that she saw a man pushing something down inthe back of the van, which was presumably the abductor trying to control Heidi. A forensicexaminer testified that such a struggle was likely to leave some transfer of material. However,despite extensive searching of Richard's van, the police never recovered any evidence that Heidihad been in that van. Priest stated that Steen told her that, after grabbing Heidi, they took off likea bat out of hell. The police found tire tracks at the store that looked as if someone left in a hurry,but those tire tracks did not match Richard's van. Steen told Priest that defendant was implicatedonly because his brother had a white van.
The court noted that none of the witnesses could credibly place Steen, Breckenridge, orBohrer at the store on the morning of Heidi's disappearance, but the same is true regarding theevidence against defendant at his trial. There were only two eyewitnesses to Heidi's abduction(Bivens and Pierce), and neither one identified defendant as the perpetrator. The court also notedthat no witnesses testified that they saw Steen, Breckenridge, and Bohrer together around thetime of Heidi's disappearance or that the men were more than just social acquaintances, but theevidence showed that all three worked for or did business with Murtaugh and were alsoconnected with another man. Murtaugh owned a junkyard, and Steen testified that he hauledscrap for Murtaugh in 1994, sometimes to Canada. This provides an explanation as to how a vanwith Heidi's remains could end up salvaged in Canada, as stated by Breckenridge to Combes. Inaddition, although Priest had never mentioned Murtaugh's name or scrapping the van in herrecorded conversation with Wescott, Wescott contacted Murtaugh before giving her statement tothe police in 2013. Priest also stated that Steen told her that Heidi was killed because she wasgoing to report a drug deal. This evidence showed a motive for Heidi's abduction, which wasmissing from defendant's trial, inasmuch as the evidence at the hearing showed that Heidi was aninformant for the police and Steen and Breckenridge sold or used drugs at the time of Heidi'sdisappearance (see McFarland, 108 AD3d at 1122-1123). The statements of Steen andBreckenridge also provided an explanation for what happened to Heidi's body, i.e., it was buriedunderneath a cabin and/or placed in a van that was sent to Canada to be salvaged.
With respect to Wescott's recorded statement to Priest, I agree with the majority and thePeople that this constituted hearsay and did not technically fall within the exception of adeclaration against penal interest because Wescott did not admit to being involved in Heidi'sabduction. However, the Supreme Court has cautioned that, "where constitutional rights directlyaffecting the ascertainment of guilt are implicated, the hearsay rule may not be appliedmechanistically to defeat the ends of justice" (Chambers v Mississippi, 410 US 284, 302[1973]). I conclude that Wescott's recorded statement should be admissible because it" 'bore persuasive assurances of trustworthiness' and was critical to [defendant's]defense" (Oxley, 64 AD3d at 1084, quoting Chambers, 410 US at 302). Contraryto the majority, I found Wescott's admissions on that recording to make perfect sense. Wescotttold the police that she simply lied to Priest, but she could have just told Priest that she knewnothing about Heidi's abduction when asked about it. Instead, Wescott told Priest that shedropped it from her mind 10 years ago, that it took her a while to do so, and that it bothered herto talk about it. She said that she was scared to tell anyone about it at the time it happened, andshe would never report it now and "open a can of worms." She also offered the explanation thatHeidi was never brought inside the house, that they made her sit in the van. This statement wassupported by Steen's statement to Priest that they placed Heidi in a van and brought her toBreckenridge's residence, where Wescott also lived. Wescott's admission that the police searchedbehind "Grandma Breckenridge's" house and that was why she and Breckenridge moved toFlorida was also supported by Steen's statement to Priest to that same effect.
Further indicia of reliability of Wescott's statement was the evidence that, before giving astatement to the police after this phone call, Wescott texted Murtaugh even though his name wasnever mentioned by Priest. Wescott also admitted that Breckenridge reached out to her after shegave her first statement to the police and told her to keep her mouth shut about the case. ThePeople note that, when Priest asked Wescott if she knew which one killed her, Wescottresponded, "No idea. As far as I know Tibadeau [sic]." That was near the end of the conversation,however, after Wescott mentioned that defendant had been convicted, and Priest responded,"That's sad." Wescott shut down after that when Priest tried asking more questions about it, andgave curt responses or said that she did not want to talk about it because she did not "want thatstuff back in [her] head."
As the majority notes, Wescott later recanted those admissions, but her supposed recantationschanged during the police interview and at the hearing. Before she knew that the conversationhad been recorded, Wescott told the police that she responded to Priest that she was crazy andasked what she was talking about when she brought up what Steen had told her. Before she knewthat the recording had been monitored by the police, she claimed that Priest had tampered withthe recording. Finally, she simply said that she told "a lot of lies" to Priest. Her deceptioncontinued at the hearing, where she gave absurd explanations for why she gave an alibi forBreckenridge when she supposedly did not know him, why she texted someone that she gave afalse statement to the police, and why a friend was wrong when he claimed she texted him aboutnot telling anyone that she went to Florida when Heidi went missing.
"When considering the reliability of a declaration, courts should . . . considerthe circumstances of the statement, such as, among other things, the declarant's motive in makingthe statement—i.e., whether the declarant exculpated a loved one or inculpated someoneelse, the declarant's personality and mental state, and 'the internal consistency and coherence ofthe declaration' " (DiPippo, 27 NY3d at 137). Here, Steen, Breckenridge, andWescott were not related to defendant and were not his friends, and thus had no reason toexonerate him or implicate themselves or their friends in Heidi's disappearance. Wescott'sstatement to Priest revealed that she did not like discussing what happened to Heidi, and sheshowed fear and reluctance to speak to the police about it. The third-party admissions were madeto people they knew, not strangers, and were made to provide explanations, rather than meretheories, to the listener as to what actually happened to Heidi. The majority notes that many ofthe third-party admissions were inconsistent with each other. At first blush, that seems to be thecase inasmuch as the statements were that Heidi's body was cut up and buried in a cabin, orburned in a wood stove in the cabin, or placed in a van that was sent to Canada to be salvaged. Itis certainly possible, however, that all three of those events could have occurred.
I therefore conclude that the testimony of Priest, Braley, and Combes, and the statement ofWescott, would be admissible at defendant's trial, and that evidence would probably change theresult of the trial (see Bailey, 144 AD3d at 1564).
Finally, I believe a new trial should be granted based simply on the totality of the newevidence introduced at the hearing. There were numerous third-party admissions attributed toSteen, Breckenridge, and Bohrer. This is not a case where there was just one off-hand remarkabout Heidi's abduction, and I conclude that "[t]he sheer number of independent confessionsprovided additional corroboration for each" (Chambers, 410 US at 300). Many of thethird-party admissions cross-corroborated the others. Many of the witnesses were unknown toeach other, yet they gave similar testimony regarding declarations that were made to them. Itherefore believe that a new trial should be granted. Present—Whalen, P.J., Centra,Peradotto and Scudder, JJ.