| People v Borcyk |
| 2018 NY Slip Op 03256 [161 AD3d 1529] |
| May 4, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Borcyk, Appellant. |
Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Monroe County Court (Vincent M. Dinolfo, J.),dated January 4, 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 unanimously reversed on the law andthe matter is remitted to Monroe County Court for a hearing pursuant to CPL 440.30 (5) inaccordance with the following memorandum: Defendant appeals from an order that deniedwithout a hearing his CPL 440.10 motion to vacate the judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]). Defendant wasconvicted of the murder of Maria Ortiz in 2005, and we affirmed the judgment of conviction ondirect appeal (People v Borcyk, 60AD3d 1489 [4th Dept 2009], lv denied 12 NY3d 923 [2009]). After two priorunsuccessful CPL 440.10 motions, defendant made the motion herein to vacate the judgment onthe grounds of newly discovered evidence, ineffective assistance of counsel, and actualinnocence. We conclude that County Court erred in summarily denying the motion and thatdefendant is entitled to a hearing with respect to his claims of ineffective assistance of counseland actual innocence (see CPL 440.30 [5]).
Defendant's newly discovered evidence claim is based upon the affidavit of a witness(hereafter, witness) obtained by defendant's private investigator in 2014. The witness averred,inter alia, that her former boyfriend admitted to her in 2004 that he had murdered Ortiz. Therecord from defendant's trial establishes that the witness provided that information to the policewhen she was interviewed in 2004, and there is no dispute that the police report containing thatinformation was provided to defense counsel prior to defendant's trial. We thus reject defendant'scontention that the information concerning the murder contained in the affidavit from the witnessconstitutes newly discovered evidence. Defendant failed to meet his burden of establishing thatthe information has been "discovered since the entry of [the] judgment" convicting him of themurder (CPL 440.10 [1] [g]; see Peoplev Backus, 129 AD3d 1621, 1624-1625 [4th Dept 2015], lv denied 27 NY3d 991[2016]). Therefore, the court properly denied without a hearing that part of defendant'smotion.
On the other hand, we agree with defendant that the court erred in denying without a hearingthat part of his motion based upon ineffective assistance of counsel. Defendant's specific claim isthat defense counsel failed to secure the presence of a witness who had potentially exculpatoryinformation, and we agree with defendant that such a failure may serve as the basis for a findingof ineffective assistance of counsel (seePeople v Mosley, 56 AD3d 1140, 1140-1141 [4th Dept 2008]; People v Nau, 21 AD3d 568, 569[2d Dept 2005]). At trial, defense counsel stated on the record that the witness had beensubpoenaed to testify on defendant's behalf. The witness did not testify, however, and there isnothing in the trial record indicating why. According to defendant's moving papers, when thewitness did not appear to testify, defense counsel merely stated: "Oh, well." There is no disputethat defense counsel did not attempt to utilize the procedure for securing the trial testimony of amaterial witness (see CPL art 620), or to seek a continuance to obtain the witness'svoluntary compliance with the subpoena. Notably, the witness avers in her affidavit that she wasnever subpoenaed.
The court denied that part of the motion based on its determination that defendant could haveraised his claim on his direct appeal or in his prior CPL 440.10 motions (see CPL 440.10[3] [a], [c]). That was error. Because the witness resided in another state and went by a differentsurname, it was not until 2014—after defendant made his two prior CPL 440.10motions—that defendant was able to obtain an affidavit from her. The affidavit containsinformation not contained in the trial record and substantially supports defendant's claim ofineffective assistance. Significantly, it raises an issue of fact whether the witness was eversubpoenaed by defense counsel. That issue of fact is separate and distinct from the witness'sinformation about the murder itself, which was known to defendant through the 2004 policereport. Defendant could not have discovered and raised the issue of fact until 2014, when he wasable to identify, locate, and obtain an affidavit from the witness. We therefore conclude that thecourt erred in determining that defendant could have asserted his present claim of ineffectiveassistance of counsel on his direct appeal or in his prior CPL 440.10 motions (cf. People v Huggins, 130 AD3d1069, 1069 [2d Dept 2015], lv denied 26 NY3d 1089 [2015]; see generally People v Coleman, 10AD3d 487, 487-488 [1st Dept 2004]). Furthermore, although defense counsel's failure topursue readily available procedural means to secure the appearance of the witness may have beenthe result of a strategic decision, we agree with defendant "that his submissions 'support[ ] hiscontention that he was denied effective assistance of counsel . . . and raise[ ] afactual issue that requires a hearing' " (People v Frazier, 87 AD3d 1350, 1351 [4th Dept 2011]).
We further agree with defendant that the court erred in denying without a hearing that part ofhis motion based on his claim of actual innocence (see People v Pottinger, 156 AD3d 1379, 1380-1381 [4th Dept2017]; People v Hamilton, 115AD3d 12, 15 [2d Dept 2014]). We conclude that he made a prima facie showing of actualinnocence sufficient to warrant a hearing on the merits (see Pottinger, 156 AD3d at1380-1381). Present—Centra, J.P., Carni, DeJoseph, Troutman and Winslow, JJ.