| People v Krivak |
| 2019 NY Slip Op 00464 [168 AD3d 979] |
| January 23, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Krivak, Appellant. |
Adele Bernhard, New York, NY, for appellant.
Robert V. Tendy, District Attorney, Carmel, NY (Larry Glasser of counsel), forrespondent.
Duane Morris LLP, New York, NY (Eric R. Breslin, Melissa S. Geller, Amanda Bassen, andJovalin Dedaj of counsel), for amici curiae the Innocence Network and others.
Appeal by the defendant, by permission, from an order of the County Court, Putnam County(Victor J. Alfieri, Jr., J.), dated December 19, 2016, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the same court (William B. Braatz, J.) renderedJune 11, 1997, convicting him of murder in the second degree and rape in the first degree, upon ajury verdict, and imposing sentence (see People v Krivak, 265 AD2d 343 [1999]), and fora new trial on the ground of newly discovered evidence.
Ordered that the order is reversed, on the law and in the exercise of discretion, and the matteris remitted to the County Court, Putnam County, for a hearing in accordance herewith and,thereafter, a new determination of the defendant's motion pursuant to CPL 440.10 to vacate thejudgment rendered June 11, 1997, to be conducted with all convenient speed.
In 1995, more than one year after her family reported her missing, the remains of 12-year-oldJ.W. were discovered in a wooded area in Putnam County (see People v DiPippo, 82 AD3d 786, 787 [2011]). In 1996, thedefendant and his codefendant, Anthony DiPippo, were arrested in connection with J.W.'s death(see People v DiPippo, 27 NY3d127, 131 [2016]; People v DiPippo, 82 AD3d at 787). The defendant, while incustody, made a statement to law enforcement officials, in which he confessed that he andDiPippo had raped and murdered J.W. The defendant and DiPippo were tried separately, andboth were convicted, after jury trials, of murder in the second degree and rape in the first degree(see People v DiPippo, 82 AD3d at 787). This Court affirmed the defendant's judgmentof conviction (see People v Krivak, 265 AD2d 343 [1999]), and also affirmed DiPippo'sjudgment of conviction (see People v DiPippo, 265 AD2d 340 [1999]).
On one of DiPippo's subsequent motions pursuant to CPL 440.10, this Court vacatedDiPippo's judgment of conviction and remitted the matter for a new trial on the ground thatDiPippo had been denied the effective assistance of trial counsel because his trial attorney hadoperated under a conflict of interest (seePeople v DiPippo, 82 AD3d 786 [2011]; see also People v DiPippo, 27 NY3d 127 [2016]). Specifically,DiPippo's trial attorney had previously represented Howard Gombert, a possible suspect in thevictim's rape and murder, on an earlier rape charge (see People v DiPippo, 82 AD3d at787-788; see also People v DiPippo, 27 NY3d at 131). This Court concluded that thefailure of DiPippo's trial attorney to disclose his prior representation of Gombert, and theattorney's failure to investigate Gombert as a possible perpetrator of the subject crimes,demonstrated that DiPippo's defense was in fact affected by the operation of the conflict ofinterest, or that the conflict operated on the representation (see People v DiPippo, 82AD3d at 791; see also People v DiPippo, 27 NY3d at 131).
On his retrial, DiPippo sought to admit evidence suggesting that Gombert was the perpetratorof the crimes (see People v DiPippo, 27 NY3d at 131). DiPippo made an offer of proof tothe court detailing the evidence that he claimed supported his third-party culpability defense(see id.). That evidence included the affidavit of Joseph Santoro, who had beenincarcerated with Gombert in Connecticut and claimed that, in April 2011, Gombert madeincriminating statements with respect to Gombert's involvement in the victim's death. DiPippoalso tendered other evidence connecting Gombert to the victim, as well as allegations thatGombert raped and sexually assaulted other girls and women in a manner uniquely similar to thatwhich was alleged with regard to the victim (see id. at 131-133). The trial court precludedDiPippo from presenting to the jury evidence of third-party culpability (see id. at130-131, 133-134). The jury found DiPippo guilty of murder in the second degree and rape in thefirst degree, and this Court affirmed DiPippo's second judgment of conviction (see People v DiPippo, 117 AD3d1076 [2014], revd 27 NY3d127 [2016]).
The Court of Appeals reversed DiPippo's second judgment of conviction and ordered a newtrial (see People v DiPippo, 27 NY3d 127 [2016]). The Court held that, under thecircumstances of that case, DiPippo should have been permitted to present to the jury evidence ofthird-party culpability (see id. at 131). The Court stated, "[v]iewed in its totality, ifproved through appropriate witness testimony at trial, [DiPippo's] proffer demonstrated that:Gombert knew and had access to the victim; he was familiar with the road near which thevictim's remains were found; he had a history of allegedly assaulting other young girls withwhom he was familiar in a manner uniquely similar to the prosecution's theory of how the victimwas killed; and that Gombert allegedly made statements indicating that he had sexually abusedthe victim around the time of her disappearance and that [DiPippo] and [the defendant] wereprosecuted for crimes that [Gombert] had committed" (id. at 139-140). The Courtconcluded that "[a]lthough the evidence presented by the People was arguably overwhelming, wecannot say, on these facts, that the error in curtailing [DiPippo's] ability to present a completedefense through the introduction of third-party culpability evidence was harmless" (id. at141).
Following a third trial, at which the defense presented the testimony of Santoro, otherevidence connecting Gombert to the victim, and witness testimony about acts of sexual abuseGombert allegedly committed, the jury acquitted DiPippo.
Before DiPippo's third trial, the defendant made a motion pursuant to CPL 440.10 to vacatehis judgment of conviction and for a new trial. After DiPippo was acquitted, the defendant'sattorney submitted a supplemental affirmation in support of the motion in which he describedcertain evidence that had been presented at DiPippo's third trial. The defendant argued, amongother things, that his judgment of conviction should be vacated and a new trial ordered based onnewly discovered evidence, in particular, third-party culpability evidence relating to Gombert. Inan order dated December 19, 2016, the County Court denied the defendant's motion without ahearing. The defendant appeals, by permission, and we reverse and remit the matter to theCounty Court, Putnam County, for a hearing in accordance herewith and, thereafter, a newdetermination of the defendant's motion.
The court which entered a judgment of conviction may, on motion of the defendant, vacatethe judgment on the ground that "[n]ew evidence has been discovered since the entry of ajudgment based upon a verdict of guilty after trial, which could not have been produced by thedefendant at the trial even with due diligence on his part and which is of such character as tocreate a probability that had such evidence been received at the trial the verdict would have beenmore favorable to the defendant; provided that a motion based upon such ground must be madewith due diligence after the discovery of such alleged new evidence" (CPL 440.10 [1] [g]).
"Once the parties have filed papers and all documentary evidence or information has beensubmitted, the court is obligated to consider the submitted material 'for the purpose ofascertaining whether the motion is determinable without a hearing to resolve questions offact' " (People v Jones, 24NY3d 623, 634 [2014], quoting CPL 440.30 [1] [a]). "[W]hether a defendant is entitled to ahearing on a CPL 440.10 motion is a discretionary determination" (People v Jones, 24NY3d at 635).
Under the circumstances of this case, the County Court improvidently exercised its discretionin denying, without conducting an evidentiary hearing, the defendant's motion pursuant to CPL440.10 to vacate his judgment of conviction. In view of the parties' submissions, particularly thethird-party culpability evidence relating to Gombert, a hearing is necessary to promote justice (see People v Page, 115 AD3d1067, 1069 [2014]). Following a full evidentiary hearing, the court will be in a position to"make its final decision based upon the likely cumulative effect of the new evidence had it beenpresented at trial" (People vBellamy, 84 AD3d 1260, 1261 [2011]; see People v Tankleff, 49 AD3d 160, 178-181 [2007]). Leventhal,J.P., Chambers, Austin and Cohen, JJ., concur.