| People v Nelson |
| 2019 NY Slip Op 02587 [171 AD3d 1251] |
| April 4, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James T. Nelson, Appellant. |
Robert DiDio & Associates, Kew Gardens (Robert DiDio of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Clark, J. Appeal, by permission, from an order of the Supreme Court (McDonough, J.),entered April 13, 2017 in Albany County, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crimes of assault in the first degree, assaultin the second degree, criminal possession of a weapon in the third degree and promoting prisoncontraband in the first degree, after a hearing.
In 2001, defendant was charged with assault in the first degree, assault in the second degree,criminal possession of a weapon in the third degree and promoting prison contraband in the firstdegree for allegedly cutting the arm of the victim—Howard Smith—with a razorblade during an inmate altercation in the library at the Albany County Correctional Facility andfor thereafter being found with a razor blade in his rectum. Following a jury trial, which includedtestimony from both Smith and defendant, defendant was found guilty as charged. He wasthereafter sentenced to a prison term of 20 years for the crime of assault in the first degree,followed by five years of postrelease supervision, and to lesser concurrent terms on the remainingconvictions. Upon defendant's direct appeal, in which he raised a claim of ineffective assistanceof counsel, this Court affirmed the judgment of conviction (1 AD3d 796, 798 [2003], lvdenied 1 NY3d 631 [2004]).
Nearly 15 years after his conviction, defendant moved, pursuant to CPL 440.10 (1) (g) and(h), for an order vacating the judgment of conviction on the grounds of ineffective assistance ofcounsel, actual innocence and newly discovered evidence. Supreme Court denied that aspect ofdefendant's motion seeking to vacate his conviction on the basis of ineffective assistance ofcounsel without conducting a hearing. As for defendant's claim of actual innocence and thealleged newly discovered evidence, Supreme Court determined that an evidentiary hearing wasnecessary, but, after that hearing, concluded that it was improbable that the newly discoveredevidence would produce a more favorable verdict for defendant at a new trial. By permission ofthis Court, defendant now appeals.
Defendant first challenges Supreme Court's denial of his motion to vacate his judgment ofconviction based upon actual innocence and newly discovered evidence. To warrant a new trialbased upon newly discovered evidence, the defendant bears the burden of establishing, by apreponderance of the evidence (see CPL 440.30 [6]), that, among other things, the newlydiscovered evidence is of such a character that it would probably, not merely possibly, change theresult upon retrial (see CPL 440.10 [1] [g]; People v Backus, 129 AD3d 1621, 1623 [2015], lv denied27 NY3d 991 [2016]; People v Penoyer, 135 AD2d 42, 44 [1988], affd 72 NY2d936 [1988]). The newly discovered evidence offered by defendant here included Smith'srecantation of his trial testimony identifying defendant as his assailant, as well as the confessionof Keshon Everett, an inmate who, although allegedly present during the altercation, did nottestify at trial and who came forward many years later to claim that he was actually the personwho cut Smith's arm.
With respect to recantation evidence, the defendant bears the burden of rebutting thepresumption of regularity that attached to the prior judicial proceeding by producing substantialevidence that the recanting witness's prior testimony was false (see People v Avery, 80 AD3d 982,985 [2011], lv denied 17 NY3d 791 [2011]; People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9NY3d 882 [2007]). Recantation testimony has long been considered "an extremely unreliableform of evidence" (People v Tucker, 40 AD3d at 1214; see e.g. People vShilitano, 218 NY 161, 170 [1916]; People v Lane, 100 AD3d 1540, 1541 [2012], lv denied 20NY3d 1063 [2013]). Thus, in assessing the credibility of recantation testimony, courts consider avariety of factors, including "(1) the inherent believability of the substance of the recantingtestimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) theexistence of evidence corroborating the trial testimony; (4) the reasons offered for both the trialtestimony and the recantation; (5) the importance of facts established at trial as reaffirmed in therecantation; and (6) the relationship between the witness and defendant as related to a motive tolie" (People v Wong, 11 AD3d724, 725-726 [2004]; see People v Shilitano, 218 NY at 170-172; People v Simmons, 20 AD3d 813,815 [2005], lv denied 6 NY3d 758 [2005]). "The credibility determination[s] of thehearing court, with its particular advantages of having seen and heard the witnesses, [are] entitledto great deference on appeal and will not be disturbed unless clearly erroneous" (People v Britton, 49 AD3d 893,894 [2008] [citations omitted], lv denied 10 NY3d 956 [2008]; accord People v Davidson, 150 AD3d1142, 1143-1144 [2017], lv denied 30 NY3d 1018 [2017]).
Our review and comparison of testimony received at the 2001 trial and the 2016 hearing, aswell as affidavits written by Smith and Everett prior to the hearing, confirm Supreme Court'sconclusion that Smith's recantation and Everett's confession were riddled with inconsistenciesthat undermined the overall reliability of their accounts. Initially, since his attack, Smith hasoffered several different sworn versions of events. At the hearing, some 15 years after the attack,Smith stated for the first time that Everett[FN1] was his assailant and that he had seen Everettremove a razor blade from the pages of a book. Such testimony stood in stark contrast to Smith'searlier trial testimony, during which he unequivocally identified defendant as the person who cuthim and testified that defendant had removed the razor blade from his mouth prior to the assault.Smith's hearing testimony also differed from statements that he had made in his 2013 and 2015affidavits.
Additionally, with the exception of Everett's identity as the assailant, the testimony given bySmith and Everett at the hearing differed in nearly all other material respects. For example, inconflict with Smith's testimony that Everett had retrieved the razor blade from a book, Everetttestified that he took the blade out of his mouth. Significantly, both Everett's and Smith's hearingtestimony was contradicted by defendant's trial testimony that Smith had actually been the one towield a razor blade and that Smith had cut himself (see People v Avery, 80 AD3d at 985).Further, aside from a library sign-in sheet[FN2] allegedly indicating Everett's presence in thelibrary during the altercation, not one trial witness named Everett as being present and involvedin the fight. Moreover, Everett's testimony that he stashed the razor blade in a book after cuttingSmith was called into doubt by trial evidence establishing that the library, including every book,had been searched by 30 correction officers in the wake of the attack and that a razor blade hadnot been found.
The hearing evidence also provided a basis for concluding that Everett and Smith each had amotive to lie and an opportunity to coordinate their false accounts. The evidence established thatEverett is currently serving a sentence of life in prison, without the possibility of parole, formurdering a police officer. Everett testified to having a 20-year friendship with defendant, andSmith testified that, at the time of the attack, he knew defendant and Everett to be members ofthe Bloods gang. As Supreme Court observed, Everett's life sentence and long friendship withdefendant, which included being codefendants in a federal cocaine distribution prosecution,presented a situation in which Everett had "nothing to lose" for falsely confessing to the crime tohelp his friend (People v Feliciano, 240 AD2d 256, 257 [1997], lv denied 90NY2d 1011 [1997]).
Further, with respect to Smith's potential motive to lie, Smith acknowledged at the hearingthat Everett sent him a sworn confession to the crime, dated February 26, 2013. Two monthslater, Smith signed his first affidavit stating that defendant had not been his attacker. Smithoffered differing explanations in his hearing testimony and in his affidavits as to why he lied inhis 2001 testimony. Given the curious timing of Smith's and Everett's respective affidavits andSmith's inability to cogently explain why he lied, it would not be unreasonable to conclude thatsome reason other than an altruistic change of heart led to Smith's recantation of his trialtestimony. As Supreme Court further recognized, neither Everett nor Smith offered persuasiveexplanations for their extensive delays in coming forward with evidence that could exoneratedefendant. Finally, the evidence established that there was a brief period of time in 2012 whenEverett and defendant were incarcerated in the same state correctional facility. In light of all ofthe foregoing circumstances and considering that Supreme Court had the opportunity to hear andobserve the testimony of Smith and Everett at the hearing (see People v Penoyer, 135AD2d at 44), we find no basis upon which to disturb Supreme Court's determination that Smith'srecantation and Everett's confession were not credible and, thus, "highly unlikely" to result in amore favorable verdict for defendant if he were granted a retrial (see People v Simmons,20 AD3d at 815; People v Greene, 150 AD2d 604, 605 [1989], lv denied 74NY2d 847 [1989]; compare People v Wong, 11 AD3d at 726-727).
Defendant also argues that Supreme Court erred in summarily denying that aspect of his CPL440.10 motion based on ineffective assistance of counsel. Defendant faults his trial counsel forstipulating that the victim sustained a serious physical injury, an element of assault in the firstdegree (see Penal Law § 120.10 [1]), and for failing to preserve variousissues and adequately cross-examine a particular witness. These alleged errors, however, wereapparent from the record and, thus, could have been raised as part of the ineffective assistance ofcounsel claim that defendant already made on his direct appeal (see CPL 440.10 [2] [c];People v Leader, 116 AD3d1239, 1239-1240 [2014], lv denied 24 NY3d 1045 [2014]; People v Jones, 101 AD3d 1482,1483 [2012], lv denied 21 NY3d 1017 [2013]). Defendant further criticizes his trialcounsel for failing to secure Everett as a trial witness. To the extent that this claimed error can becharacterized as involving matters appearing both on the record and outside the record, defendantdid not offer sworn allegations of fact concerning counsel's alleged deficiencies that wouldjustify a hearing on the issue (see CPL 440.30 [4] [d]; People v Leader, 116AD3d at 1240; People v Jones, 101 AD3d at 1483). Accordingly, Supreme Courtproperly denied that aspect of defendant's motion based upon ineffective assistance of counselwithout first conducting a hearing.
Egan Jr., J.P., Mulvey, Devine and Aarons, JJ., concur. Ordered that the order isaffirmed.
Footnote 1:Significantly, Smith testifiedthroughout the hearing that an individual named "Jayblack" was his assailant. It was not untilpressed by the prosecution on cross-examination that Smith hesitantly acknowledged that"Jayblack" was his own nickname for Everett, who was otherwise known as "Keeblack."
Footnote 2:The sign-in sheet, which wasadmitted into evidence at the hearing, includes Everett's name at the bottom of the list, but thereis no time associated with his entry into the library, unlike every other inmate's name.