| People v Mosley |
| 2017 NY Slip Op 07648 [155 AD3d 1124] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelMosley, Appellant. |
Mitch Kessler, Cohoes, for appellant, and appellant pro se.
Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.
Lynch, J. Appeal, by permission, from an order of the County Court of Rensselaer County(Ceresia, J.), entered April 19, 2016, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment convicting him of the crimes of murder in the first degree and burglary in thefirst degree, after a hearing.
Following a three-week jury trial held in May 2011, defendant was convicted of murder inthe first degree and burglary in the first degree in connection with the January 2002 deaths ofArica Schneider and Sam Holley. The victims were stabbed multiple times while in theirapartment in the City of Troy, Rensselaer County. Two other individuals, Terrence Battiste andBryan Berry, were initially charged with the murders, but their indictments were dismissedwithout prejudice when defendant's DNA was matched to blood found at the crime scene. Attrial, defendant did not dispute that his DNA—derived from a blood stain found on thevictims' bed sheet—and palm print were discovered at the crime scene. After hearingevidence from, among others, the medical examiner, an expert serologist, crime scene analystand meteorologist, the jury rejected defendant's explanation that he discovered the victims' bodiesthe morning after they had been murdered, that he was bleeding from a hand injury he sufferedwhile snowboarding the evening before at a gorge located in Troy, and that his blood transferredonto the victims' bedsheet as he attempted to move the mattress to retrieve a hidden cellphone.
Following the verdict, defendant moved, pursuant to CPL 440.10 (1) (g) and (h), for an ordervacating his conviction on the grounds of ineffective assistance of counsel and actual innocence.County Court (Young, J.) denied the motion without a hearing. Upon his direct appeal from thejudgment of conviction and, by permission, from the order denying his CPL 440.10 motion, weaffirmed the judgment (121 AD3d 1169 [2014], lv denied 24 NY3d 1086 [2014]), butreversed the order that summarily denied the motion, finding that defendant raised sufficientevidence to warrant a hearing and remitted the matter accordingly (id. at 1173-1174).After an eight-day hearing, County Court (Ceresia, J.) denied defendant's CPL 440.10 motion,and, with this Court's permission, defendant now appeals.
In People v Hamilton (115AD3d 12 [2014]), the Second Department determined that a claim of actual innocence mustbe established with clear and convincing evidence of "factual innocence, not mere legalinsufficiency of evidence of guilt and must be based upon reliable evidence which was notpresented at the trial" (id. at 23 [citation omitted]; accord People v Maxwell, 152 AD3d 622, 622-623 [2017]; see People v Thibodeau, 151 AD3d1548, 1556 [2017]; compare Peoplev Beckingham, 116 AD3d 1298, 1299 [2014]). While we recognize that in People v Caldavado (26 NY3d1034 [2015]) the Court of Appeals opted not to determine whether a freestanding claim ofactual innocence is viable (id. at 1037), we concur with the analysis set forth inHamilton and find that such a claim may be raised pursuant CPL 440.10 (1) (h) (seePeople v Hamilton, 115 AD3d at 26).
At the hearing, defendant repeated his explanation with regard to the presence of his DNAand palm print at the crime scene. Further, defendant's wife (then girlfriend), who did not testifyat the trial, confirmed that she observed and treated defendant's injured hand when he returnedhome from snowboarding the evening before the murders. Defendant also offered testimony byTerry Labor, a forensic scientist, and Stephen Wistar, a forensic meteorologist. Labor testifiedthat the blood stain on the bed sheet was transferred to the sheet through contact with an existingwound, a finding consistent with defendant's explanation and contrary to the People's blood droptheory that defendant was cut during the murders. Labor also opined that the palm print wouldnot have been a discernibly different color if it had been made when the victims were murderedor when defendant ostensibly entered the apartment the following morning—a pointcontrary to the People's argument that the color of the palm print showed that it was made at thetime of the murders. Wistar testified that based on his review of the weather data and thetopography and location of the area where defendant claimed to be snowboarding, there wassome snow present at the gorge during the time that defendant claimed he was injured. Defendantalso presented testimony by a witness who claimed that he had been incarcerated with Battiste in2005 and that Battiste spoke to him about details of the victims' murders and admitted that hewas the driver the night they were murdered.
In our view, the evidence submitted at the hearing failed to establish by clear and convincingevidence that defendant did not murder the victims. Much of the evidence presented at thehearing was also presented to the jury, which considered and rejected defendant's explanation,and the jury's verdict was upheld on appeal (see People v Beckingham, 116 AD3d at1299). At best, the additional evidence submitted in support of the motion to vacate arguablyraised "[m]ere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as tothe defendant's guilt," neither of which is sufficient to support a motion to vacate a judgmentbased on actual innocence (People v Hamilton, 115 AD3d at 27; see People vMaxwell, 152 AD3d at 623). Accordingly, we find that County Court properly declined tovacate defendant's conviction pursuant to CPL 440.10 (1) (h) based on actual innocence.
Defendant also argues that County Court should have vacated the judgment of convictionbased on ineffective assistance of counsel. Specifically, defendant claims that trial counsel failedto obtain and present expert forensic testimony, such as Labor's, that would have countered thePeople's theory that defendant was injured during the course of murdering the victims andsupported defendant's explanation with regard to how his DNA and palm print were found at thescene. Defendant also faults counsel for failing to produce a weather expert, such as Wistar, tocounter the opinion of the People's expert that there was not enough snow to snowboard in thegorge the evening prior to the murders. Defendant further contends that trial counsel should haveallowed his wife to testify and should have objected when the People used defendant's prearreststatements to the police, questioned him about his tattoo and compared an old photograph ofdefendant to a photograph of another person purportedly seen outside of the victims' apartmentthe evening of the murders. Finally, defendant claims that trial counsel failed to put forth a viabledefense based on the culpability of Battiste and Berry.
A criminal defendant's right to the effective assistance of counsel is guaranteed by both theFederal and State Constitutions (see US Const, 6th Amend; NY Const, art I,§ 6). To determine whether a defendant received effective assistance, we considerwhether "the evidence, the law, and the circumstances of a particular case, viewed in totality andas of the time of the representation, reveal that the attorney provided meaningful representation"(People v Baldi, 54 NY2d 137, 147 [1981]; accord People v Speaks, 28 NY3d 990, 992 [2016]; People v Cassala, 130 AD3d 1252,1253 [2015], lv denied 27 NY3d 994 [2016]). The test is "reasonable competence, notperfect representation" (People vOathout, 21 NY3d 127, 128 [2013] [internal quotation marks and citation omitted]; see People v Malloy, 152 AD3d968, 971 [2017]). Accordingly, we "must avoid confusing true ineffectiveness with merelosing tactics and according undue significance to retrospective analysis" (People vCassala, 130 AD3d at 1253-1254 [internal quotation marks and citation omitted]).
During his testimony at the hearing, defendant's trial counsel highlighted, in general, hisextensive criminal defense experience, and, in particular, his experience with the use of DNAevidence and ability to interpret weather data. He testified that he, his partner and associatesdevoted more than 600 hours to representing defendant and, although he confirmed that hebelieved that the "most logical" theory of the defense was third-party culpability, he deniedtelling defendant that this was a strong defense. He explained that he did not subpoena thewitnesses who provided testimony before the grand jury that indicted Battiste and Berry to testifyat the trial because they were "inherently unreliable," for example, a known "jailhouse snitch"and a purported drug addict who had changed her story multiple times. Trial counsel did not calldefendant's wife to testify because he believed that her testimony could have been overshadowedby evidence of a domestic violence incident perpetrated by defendant. As for the experttestimony, trial counsel claimed that there was inadequate time to find an expert after the Peoplesubmitted a meteorologist's testimony on rebuttal and explained that he determined not to call ablood splatter expert because it was not possible to determine when defendant's DNA was left atthe scene, that is, during the murders or the next morning when defendant admittedly went to thevictims' apartment.
While trial counsel's personal assessment of the defense is informative, it is certainly notdispositive because our obligation is to determine whether, "[v]iewed objectively, the transcriptand the submissions reveal the existence of a trial strategy that might well have been pursued bya reasonably competent attorney" (People v Satterfield, 66 NY2d 796, 799 [1985]).Generally, a trial counsel's determination to not call a particular witness, including an expertwitness, will not necessarily constitute ineffective assistance of counsel (see People v King, 124 AD3d1064, 1067 [2015], lv denied 25 NY3d 1073 [2015]; People v Muller, 57 AD3d 1113,1114 [2008], lv denied 12 NY3d 761 [2009]). Upon our review of the record, we findthat trial counsel's determinations were based on a trial strategy that was reasonably developed toconfront and reconcile the evidence in the case. Indisputably, defendant's blood DNA and palmprint were discovered at the scene and there was no physical evidence indicating that eitherBattiste or Berry were in the apartment. Opting not to present potentially incredible witnesstestimony that would reflect poorly on defendant, trial counsel elicited testimony from theinvestigating officers that certain witnesses testified under oath that Battiste and Berry admittedthat they were involved in the murders and that Battiste was seen outside of the victims'apartment the night of the murders. Trial counsel also elicited testimony with regard to thevictims' lifestyle and exposure to disputes with, among others, gang members locally, in NewYork City and in Pennsylvania. In contrast, trial counsel highlighted that defendant and Holleywere friends and defendant had no motive to murder the victims.
Similarly, we find that, under the circumstances, trial counsel's failure to retain certainexperts did not constitute ineffective assistance of counsel. Trial counsel's cross-examinations ofthe People's experts were organized and effective and confirmed his knowledge of weather dataand crime scene analysis. For example, trial counsel led the People's meteorologist to concedethat it was not raining, and there was likely some ambient light when defendant claimed that hewas snowboarding. Further, after acknowledging that he had never actually been to the gorge, themeteorologist conceded that snow could be present on sheltered surfaces and that, based on thetopography and the nature of drifting and blowing snow, he could not definitively state howmuch snow was on the ground in the gorge the evening before the victims were murdered. Whiledefendant takes issue with defense counsel's failure to call a bloodstain expert to address whetherthe blood on the bed sheet was a transfer pattern, i.e., consistent with defendant's explanation, ora drop pattern, i.e., which would not be, the People's crime scene expert, Laura Pettler, hadalready testified that it was a transfer stain. Moreover, during his cross- examination, trialcounsel elicited Pettler's opinion that the procedures that the police used when they processed thecrime scene were not ideal, compromising her ability to develop her theory that the victims weremurdered during the course of an argument and not during a planned robbery or gang-relatedmurder. Consequently, she conceded that this theory was speculative. As for determining whenthe palm print was made based on the color of the blood, the medical examiner, Michael Sikirica,testified that "blood oxidizes and changes to a darker color—a process that can occurwithin a few minutes . . . but it may take hours to finally develop." Given variablessuch as temperature and humidity, Sikirica was unable to address how long it would take bloodto dry. Notably, he did not opine as to the timing of the palm print and his explanation leaves thatquestion unresolved.
Turning to defendant's remaining arguments, generally, the failure to make a motion that hasquestionable merit will not support a claim of ineffective assistance (see People v Brandon, 133 AD3d901, 903 [2015], lv denied 27 NY3d 992 [2016]). It is not disputed that defendantvoluntarily spoke with the police and never invoked his right to counsel, and we have determinedthat it was not error for County Court to allow testimony with regard to defendant's statements tothe police "that revealed inconsistencies and omissions regarding important details" (121 AD3dat 1173; see People v Chery, 28NY3d 139, 145 [2016]). Further, under the circumstances, we do not find that trial counsel'sfailure to object to the prosecutor's single question about defendant's tattoo constituted ineffectiveassistance (see People v Henry, 129AD3d 1334, 1337 [2015], lv denied 26 NY3d 930 [2015]). Similarly, our review ofthe trial transcript indicates that trial counsel was reasonably concerned about the jury'sperception of his frequent objections—which he claimed County Court overruled "95%"of the time. Further, the jury was aware that the photograph of defendant displayed during thePeople's summation did not reflect defendant's appearance in 2002, and County Court instructedthe jury that commentary during opening and closing statements was not evidence. To the extentthat trial counsel's testimony conflicted with defendant's, we defer to County Court's credibilityassessments (see People v Beckingham, 134 AD3d 1255, 1256 [2015], lv denied 27 NY3d 992 [2016];People v VanDeusen, 129 AD3d1325, 1327 [2015], lv denied 26 NY3d 972 [2015]). In sum, when we consider the"entirety of the representation defendant received at trial" (People v Speaks, 28 NY3d at992), we find that County Court properly exercised its discretion in finding that defendantreceived the effective assistance of counsel (see People v VanDeusen, 129 AD3d at 1327;People v Avery, 80 AD3d 982,987-988 [2011], lv denied 17 NY3d 791 [2011]).
Egan Jr., J.P., Rose and Mulvey, JJ., concur. Ordered that the order is affirmed.