Opinion
1762/96.
Decided November 16, 2004.
Defendant was charged with Robbery in the First and Second Degrees, Burglary in the First Degree and other related charges. At a trial by jury, Venedia Heredia testified that on December 3, 1995, defendant, acting in concert with three others, displayed a gun and pointed it at her head, forcibly entered her apartment and stole thousands of dollars in jewelry and cash. Heredia's five-year-old daughter was also present during the robbery. Heredia positively identified defendant in a lineup on February 8, 1996, as the man who held a gun to her and robbed her. Defendant did not present any witnesses on his behalf.
On November 17, 1997, the jury convicted defendant of Robbery in the First and Second Degrees, Burglary in the First Degree and two counts of Unlawful Imprisonment in the Second Degree. On December 12, 1997, defendant was sentenced, as a second violent felony offender, to three concurrent terms of imprisonment of fifteen years on the robbery and burglary counts to be served concurrently with two concurrent terms of imprisonment of one year on the unlawful imprisonment counts.
By papers dated June 3, 2003, defendant moved to set aside the judgment of conviction pursuant to C.P.L. § 440.10(1)(g), claiming that the existence of newly discovered evidence warrants a new trial. Specifically, defendant claims that after trial, he discovered the identities of two women who would be able to provide him with an alibi for his whereabouts at the time of the crime. Upon the consent of the parties, a hearing was ordered for the resolution of this issue.
Prior to the instant motion, defendant had filed an earlier C.P.L. § 440.10 motion, alleging ineffective assistance of trial counsel. This Court, in a decision, dated April 1, 2002, denied the motion, after conducting a hearing.
In their reply papers, the People asserted that they "are in a strong position of making an argument pursuant to C.P.L. § 440.10(3)(c), that this Court summarily deny the instant motion because it should have been put forth in the first C.P.L. § 440 motion that was filed." However, the People waived this claim, and instead, consented to have the matter referred to this Court for a hearing to determine whether there exists newly discovered evidence which warrants vacating defendant's conviction.
On May 21, 2004, a hearing was commenced before this Court, and was completed on June 15, 2004. Rosa Justo, Mariluz Millan and Ingrid Morel testified for the defense. The People did not present any witnesses. The parties stipulated that the testimony of Ingrid Morel, defendant and attorney Christopher Booth at a prior C.P.L. § 440.10 hearing, as well as the affidavits submitted in support of that previous motion, were to be considered as part of the record for this Court's consideration in deciding defendant's current motion.
HEARING EVIDENCE
Defendant's Case
Rosa Justo testified on behalf of defendant. Thirty-seven-year-old Justo is married and has one child. Her husband, Rafael, is employed as a supermarket manager. Justo has been employed in the marketing department at J.P. Morgan Chase since 1997. Her job duties entail making travel arrangements for the company's Latin American clients visiting the United States. Aside from a conviction for theft of services while in college, Justo has no other criminal convictions.
Justo testified that on the evening of December 3, 1995, she went to dinner at the Pizzeria Uno restaurant in Yonkers with her best friend of twenty years, Mariluz Millan. The women were celebrating Justo's birthday, which they did every year. Although Justo's birthday was actually December 6th, she recalled going out with Millan on Sunday, December 3, 1995. She explained that since her birthday fell on a Wednesday that year, she had gone out with Millan on the preceding weekend because she did not like to go out on week nights. She also believed it was bad luck to celebrate her birthday after it had passed. Justo further stated that they had definitely gone out on a Sunday because she always spent Saturdays with her family. When asked how she specifically recalled this particular birthday in 1995, she replied that it was a special birthday to her. She explained that it was her twenty-ninth birthday, which was significant because it was her father's age at the time of his death.
Aside from attending church, Justo could not recall anything else she did on December 3, 1995.
Justo testified that, while at the restaurant on December 3, 1995, she ran into Ingrid Morel, a business acquaintance of her husband, Rafael. According to Justo, she specifically recalled seeing Morel that evening because she had beautiful, long, blond hair. Before that evening, Justo had met Morel at social events in connection with her husband's business. Specifically, Justo recalled meeting Morel on two occasions at the National Supermarket Association ("N.S.A.") annual dinner which she attended with Rafael. Justo claimed that she was not personally acquainted with Morel, and never called her or went out with her socially.
Justo believed she had probably seen Morel at the 1995 and, possibly, the 1994 dinners. She also stated that the dinners were usually held in May or June of each year.
Justo testified that she first saw Morel when she arrived at the restaurant at about 8 p.m. Morel was seated at a table with a man and two children. Justo and Morel waved to one another. After she finished eating dinner, Justo stopped by Morel's table to say goodbye. Morel introduced Justo to her daughters and the father of her children. Justo identified defendant in court as the man Morel introduced to her, and claimed that she had no doubt that she saw defendant that evening. Justo testified that aside from meeting defendant that night, she had no recollection of ever seeing defendant on any other occasion.
Justo stated that defendant's hair was lighter in 1995 than it is now. She recalled that defendant had blond streaks in his hair in 1995.
Justo testified that after December 3, 1995, she did not see Morel again until about six months to a year later when she ran into her at the Bravo Supermarket in the Bronx. Justo had gone to the store to visit Rafael, Bravo's manager. When she first entered the store, she saw Morel speaking with Rafael. After greeting Morel, Justo commented that she had not seen her since her birthday in December 1995. Morel asked her if she knew the exact date of that encounter. She told Justo that she needed to speak to her because she had a "problem with the father [of her] children regarding that date." Although Justo claimed that Morel "didn't mention anything specific" and never told her the nature of the problem, she acknowledged that Morel had told her that defendant had been arrested. Based on her belief that that date was important to Morel, Justo gave her telephone number to Morel.
On cross-examination, Justo was shown her affidavit prepared in connection with this case in March of 2001, which reflected a somewhat different version of events regarding her second encounter with Morel. Upon review of her affidavit, Justo acknowledged that Morel had entered the grocery store after she was already inside. She also testified that after greeting Morel and asking about her family, Morel informed her that her husband had been arrested. Although she initially testified that Morel had not provided her any "details," she testified on cross-examination that Morel had given her "a few of the details" about defendant's arrest, as well as the reasons why she believed he was innocent. Upon speaking with Morel, Justo reminded her that December 3, 1995, was the same date and time that she had seen Morel and her family at Pizzeria Uno. Justo stated that Morel had only told her that defendant had been arrested — not that he had been convicted.
The parties stipulated that Justo's affidavit, which was submitted as an exhibit in defendant's prior 440 motion, was part of the court record with respect to the instant motion before this Court.
Although she repeatedly used the word "arrest" during her testimony, as well as in her affidavit, Justo later testified that she could not recall the exact word Morel used to describe defendant's legal situation.
Justo testified that she never discussed defendant or December 3, 1995, again until a few years later when she was contacted by an investigator employed by defendant's attorney. According to Justo, she was never contacted directly by Morel. Justo maintained that she had not seen, spoken to, e-mailed or communicated with Morel in any way since that second meeting at Bravo Supermarket somewhere between June and December of 1996. Aside from speaking to Morel, Justo claimed that she discussed her recollections only with defendant's investigators, his attorneys Dan Noble and Osvaldo Gonzalez, as well as Assistant District Attorney Haydee Correa. Justo denied ever speaking to anyone else about this incident, including her husband. In fact, she claimed that she had not even told her husband that she had to testify in connection with this case because she did not want to worry him. She also testified that she never spoke to Mariluz Millan about the events of December 3, 1995, despite the fact that she speaks with Millan twice daily, gave Millan's contact information to defendant's attorneys and actually went to Mr. Gonzalez's office with her. Thirty-seven-year-old Mariluz Millan also testified for the defense. Millan is single and has no children. She is employed at Pfizer Brokerage on Wall Street as an administrative assistant. Before her current employment, she worked at Fiduciary International and Citibank.
Justo testified that she was not sure of the exact time frame but believed she was first contacted by an investigator six months to a year after meeting Morel in the Bravo supermarket.
Millan has known Rosa Justo for about eighteen years, and described her as being like a sister to her. Millan speaks with Justo several times a day, and usually sees her every other day. Millan testified that she traditionally takes Justo out for her birthday every year. She testified that although Justo's birthday is on December 6th, she recalled going out with her on Sunday, December 3rd in 1995. She explained that since Justo's actual birthday fell on a weeknight that year, they went out on a Sunday because Justo did not like to go out after work.
Millan testified that on December 3, 1995, she and Justo went to Pizzeria Uno in Yonkers, which was about fifteen minutes from her home. They arrived at the restaurant at about 8 p.m. During dinner, Justo told Millan that a "friend of hers from work" was also at the restaurant. Millan recalled seeing a woman seated at a table with a man. She could not recall anyone else present with them. Justo introduced Millan to the woman, whose name was Ingrid. She claimed that she remembered Ingrid because she had "beautiful, red, long hair." Millan identified defendant in court as the man she saw dining with Ingrid that evening. Millan claimed that she specifically recalled defendant and was able to identify him because he was a "short guy" and recalled making a comment to that effect to Justo. She also claimed that she was good at remembering faces, and that his appearance had not changed since that evening. Millan testified that she did not know either Ingrid or defendant, and had never seen either of them before or after December 3, 1995.
Millan testified that she was certain about meeting defendant on December 3, 1995, because that was the date she had celebrated Justo's twenty-eighth birthday, which was an important occasion. She claimed that she was certain that Justo had turned twenty-eight that year because they were the same age.
Initially, Millan testified that she did not remember how she became involved in this case because, as she stressed repeatedly, she was "never" contacted by anyone about it. However, after several questions from the prosecutor, Millan admitted that she had spoken to both Justo and defense counsel several times about this case. First, she admitted that Justo alerted her that an attorney would be contacting her about defendant's case. Specifically, Justo told her that she was a witness in the case because she had seen defendant and Ingrid at Pizzeria Uno on December 3, 1995. She had also talked to Justo about when they were scheduled to testify. She claimed that aside from those remarks, she and Justo never discussed the topic any further, and have never talked about December 3, 1995.
Millan also testified that she had spoken with defense counsel, Dan Noble, on several occasions about this case. She was first contacted by Noble about three or four years earlier by phone, and had subsequently met him in person. More recently, he had called her about one or two weeks before her testimony to inform her that her appearance in court was necessary. According to Millan, she had spoken with Noble about the fact that she was a witness in the case because she had been introduced to Ingrid.
Ingrid Morel also testified on behalf of the defense. Morel is defendant's former common-law wife and the mother of his two daughters. In 1982, Morel and defendant met while in high school. Two years later, they began living together. About ten years later, Morel separated from him after she developed breast cancer in 1994. Shortly after their separation, Morel learned that defendant had married another woman in the Dominican Republic in January 1995.
Although she was first diagnosed with cancer in 1994, Morel stated that she had not lost her hair until 1997. According to Morel, she had long hair throughout 1995. A photograph introduced into evidence as Defendant's Exhibit A shows Morel with long, dark hair with reddish highlights. Morel testified that this photograph showed the way her hair appeared in December 1995.
During her relationship with defendant, Morel was employed as a manager at Pioneer Supermarket — a grocery store owned and operated by defendant's family in Bronx County. Morel left Pioneer shortly after separating from defendant. Thereafter, Morel worked for D.B. Brown as a meat seller. Despite being quite ill in 1995, she continued to work. After several years with Brown, Morel worked as a sales supervisor for Food Nation. She is currently employed at Summit Corporation as a sales administrator.
Although she initially testified that she left Pioneer in 1994, she later stated that she stopped working there sometime after finding out about defendant's marriage in early 1995.
In the early 1990s, while she was employed at Pioneer Supermarket, Morel met Rafael Justo. Rafael Justo managed the Bravo Supermarket, which was associated with Met and Pioneer supermarkets. Morel testified that they attended weekly meetings for owners and managers of supermarkets affiliated with Met and Pioneer to discuss sales and pricing. Although defendant was also a manager at Pioneer, Morel claimed that he never attended any of these meetings, and did not know Rafael Justo.
Morel testified that she attended these meetings until she left Pioneer in early 1995.
After she left Pioneer to work as a meat wholesaler for D.B. Brown, Morel dealt with Rafael Justo frequently because Bravo Supermarket was one of her accounts. Morel testified that in the course of her duties at Brown between late 1994 until about 1999, she called Rafael about twice a day at the store to discuss Bravo's meat purchases. On many occasions, Rafael's wife, Rosa Justo, would answer the phone, and the two women would talk about their families. Morel claimed that since she worked in a male-dominated business, she would often try to be friendly with the wives of her business acquaintances to avoid any problems. Morel testified that she would speak to Rosa Justo two or three times a month over the telephone. She claimed that she never called her at home.
Morel testified that she had also seen both Rafael and Rosa Justo at industry-related social functions. Specifically, Morel had met Rosa Justo in person once or twice at N.S.A's annual November dinner. She believed that she had seen the Justos at the 1995 and 1996 dinners. Morel initially stated that she did not begin attending these dinners until she was employed by D.B. Brown. However, she later stated that she also attended these dinners while working for Pioneer as a store representative. In addition to the N.S.A. dinners, she had also seen the Justos at Pioneer's yearly dinner, which she attended during and after her employment with Pioneer. According to Morel, defendant never attended any of the N.S.A. or Pioneer dinners.
Morel testified that she would occasionally visit Rafael Justo's store whenever there was a problem with his account — possibly once every few months. In 1995, during her visits to the store, she believed that she had seen Rosa Justo about two or three times in addition to seeing her at the Pioneer and N.S.A. dinners.
Morel testified that she was with defendant and their children on the evening of December 3, 1995. According to Morel, she was able to recall the events of this date because it was the first time she had seen defendant since their separation. Morel explained that during the course of 1995, she looked "horrible" and had lost a lot of weight due to her struggle with cancer, and did not want to see "anyone" including defendant. However, since she was feeling better by the end of the year, she agreed to have dinner with defendant and their children.
After defendant arrived at her house at about 6:40 p.m., he and Morel took their children to a movie theater on Central Avenue in Yonkers. Since the movie they intended to see had already stated, they went to dinner at a nearby restaurant, Pizzeria Uno.
Shortly after they arrived at the restaurant around 7:30 p.m., Morel saw Rosa Justo accompanied by a friend. The women initially waved to each another. Justo later came by Morel's table. After introducing Justo to defendant and her daughters, Morel told defendant that Justo was an "old friend." When Morel asked Justo if there was a special occasion for the dinner, Justo replied that they were celebrating her upcoming birthday.
Morel testified that she referred to her as an "old friend" because she did not have too many friends, and Justo had always been very nice to her over the phone.
Approximately two months later, defendant telephoned Morel and told her that he had been arrested. About a week or two later, defendant spoke with Morel, and informed her that he had been charged with committing a robbery on December 3, 1995. Morel reminded him that that was the evening that they had spent together with their children. According to Morel, they never discussed seeing anyone else at the restaurant that evening.
Morel testified that she was subsequently interviewed by defendant's attorney, Christopher Booth. She met with him on two occasions, but never told him about her encounter with Rosa Justo in the restaurant that evening. Although she was able to recall in great detail her meeting with Justo during her testimony, she claimed she had no memory of the meeting during the pendency of defendant's case. According to Morel, Booth never asked her if she had seen anyone else that evening. Nor did he ask her to locate any other witnesses for the defense. She claimed that if he had asked her such questions, it would have jogged her memory. Accordingly, Morel blamed Booth for her failure to recall Justo's presence that night.
Morel testified that she had not recalled seeing Rosa Justo the night of December 3, 1995, until she ran into Justo again sometime after defendant's trial. Morel could not recall the exact date of this second encounter but was sure that it was about two years later, sometime in 1997. Although she may have spoken to Justo over the phone, Morel stated it was the first time she saw her in person since that night at Pizzeria Uno's restaurant.
Morel believed that she saw Justo after defendant's conviction. However, defendant was not convicted until November 1997.
Morel testified that she went to the Bravo Supermarket to speak with Rafael Justo about his account one morning and saw Rosa Justo. When Rosa Justo inquired about Morel's husband and children, Morel told her that she had been separated from her husband, and that he had been incarcerated following a criminal conviction. Morel explained to Justo that defendant was innocent because she had been with him that evening. When Justo asked why she did not try to help defendant, Morel replied that neither defendant's attorney nor the District Attorney called her as a witness to testify at defendant's trial.
Morel was inconsistent as to whether it was she or Justo who first recalled their meeting on December 3, 1995. Initially, Morel testified that as she was speaking with Justo, she remembered that the last time she saw Justo was the night she was at Pizzeria Uno with defendant. Morel stated, "[a]s I got into the conversation more with her, I remember and I recall that the last time she saw me over there with [defendant]. It was at the Pizzeria Numero Uno." She later testified that it was Rosa Justo who first remembered seeing Morel with defendant on December 3, 1995. She stated Justo had recalled that specific date because she was celebrating her birthday, and it was the only time she saw Morel with defendant. However, Morel later testified to the effect that they both "mutually" recollected seeing one another during the course of their conversation.
Morel initially claimed that she never mentioned the actual date of the dinner to Justo, and that it was Justo who recalled that December 3, 1995, was the date of their meeting. She later realized, however, that she must have brought up the exact date during their conversation. She recalled telling Morel, "December 3rd, was the last time we saw each other over there at Pizzeria Numero Uno," and "that's the same day they accused [defendant] of [robbery]."
Justo told Morel that if she needed her, she would "gladly assist" her, and that she could contact her through her husband, Rafael. Justo told Morel, "I don't care where I have to go because I remember that was the time I saw you there."
After speaking with Justo, Morel contacted defendant's new retained attorney and informed him that Justo was also an alibi witness. The attorney told her he did not think the information would be "important" or "necessary," and never contacted her again. Sometime later, however, she was contacted by a new attorney, Osvaldo Gonzalez, who had been hired by defendant to represent him. Morel gave Gonzalez information to contact Rosa Justo.
Since speaking with Justo sometime after defendant's trial, Morel testified that she spoke to her again when she phoned the Bravo Supermarket on a subsequent occasion. Justo repeated her offer of assistance. Morel stated that the last time she saw Justo was about a year earlier at Justo's mother's funeral. She testified that they did not always discuss defendant's situation when they spoke because it was a very personal matter.
According to Morel, Rafael Justo also knew about defendant's situation, and that his wife had been present at the restaurant on the night in question. Rafael Justo informed Morel that his wife told him about defendant, and conveyed his sympathies to her. Morel stated that it was obvious from her conversation with Rafael that Rosa Justo had provided him with details of her conversation with Morel.
Morel testified that although she had difficulty speaking about such a painful subject, she felt close enough to Rosa Justo to confide in her about private matters. She testified that Justo had previously disclosed personal information to her such as her struggle with infertility. Although she spoke with Justo about very personal and embarrassing matters regarding defendant, she claimed that Justo was not an "important person" in her life, and was no different from the spouses of other business acquaintances.
Morel testified that she had difficulty talking about defendant because she felt personally responsible for his situation. She stated that defendant's family, including her daughters, blamed her for his incarceration because they felt she had done nothing to help him. According to Morel, she carried this burden for many years. She claimed that after defendant's trial, her relationship with his family had changed irrevocably, and she was no longer friendly with them. Morel stated that she felt "guilty" about defendant.
Defendant testified on his own behalf at the first 440 hearing conducted before this Court. At that hearing, defendant stated that he had dinner with Ingrid Morel and their children on the night of December 3, 1995. While at the restaurant, Morel introduced defendant to Rosa Justo, referring to her as an "old friend." Defendant claimed that he never met Justo before that night.
On cross-examination, defendant was asked about an affidavit he had prepared in connection with this case. In the affidavit, dated June 19, 2000, defendant stated that while at dinner, he and Ingrid "spoke to two acquaintances that we had not seen for a while." When asked to explain the inconsistency, defendant claimed that his statement in the affidavit was incorrect despite the fact that he had sworn to its truthfulness. He insisted that he had met Justo for the first time the night of December 3, 1995.
Although defendant later recalled being introduced by Morel to Justo at the restaurant, he acknowledged that he never informed his attorney, Christopher Booth about this meeting. The People's Case
The People did not present any witnesses at this hearing.
The First 440 Hearing: Ineffective Assistance of Counsel Claim Rejected
The Court found that defendant had not been denied effective assistance of trial counsel based on counsel's failure to interpose an alibi defense. The Court's findings of fact at that hearing included detailed determinations of counsel's exploration of and ultimate determination not to pursue the alibi defense. Defendant testified at the first 440 hearing that he discussed with trial counsel his activities during the evening of December 3, 1995, from the earlier-than-usual store closing, through driving a number of employees to various locations before picking up Morel and their two children for a movie and dinner in Yonkers. Defendant provided Booth with the names of the employees he had driven as well as the records from the security alarm company used by the store to verify his claim about the closing time based on the alarm activation time. Defendant informed Booth that because they arrived after the movie had begun, he and Morel decided to dine at a local restaurant. He also informed Booth that Morel would testify on his behalf about the missed movie and the dinner at Pizzeria Uno at the precise moment the robbery was committed in Bronx County.
Booth, testifying as a People's witness, confirmed each of these claims, stating that he met on several occasions with defendant, explored defendant's activities on the date of the crime, and discussed the importance of independent witnesses or corroborating records to establish his whereabouts. Notwithstanding Booth's request for any possible supporting evidence, Booth was never informed by defendant that he and Morel had bumped into an acquaintance at the restaurant. In fact, defendant acknowledged in his testimony at the hearing that he never mentioned to Booth the encounter in the restaurant.
Before defendant's trial began, Booth met with Ingrid Morel, and spoke at length with her about her recollections of the evening of December 3, 1995. Booth testified that Morel had told him that while she was at the restaurant with defendant, she had seen an acquaintance. However, she could not recall that person's identity. Booth asked Morel to speak to defendant and their daughters to try to remember the name of the person they had seen that night. Booth explained that he needed to contact that person to substantiate Morel's testimony. At the completion of their conversation, Booth found Morel to be articulate and credible. His only concern was finding additional evidence to corroborate her testimony.
While the accounts of Booth and Morel were largely consistent, they differed on the question of what efforts, if any, were undertaken to provide independent corroboration of defendant's alibi. Booth testified that in light of his belief that jurors "generally frowned" upon alibi defenses proffered solely through a defendant's spouse, he was intent on developing any possible independent evidence that might substantiate Morel's testimony. He thus learned from Morel that she had seen an acquaintance at the restaurant while with defendant but she was unable to recall who the acquaintance was. Booth urged Morel to speak to both her daughters and defendant to try to assist her in recalling the identity of the acquaintance. He emphasized to her the importance of some independent corroboration of her account. In follow-up conversations with Morel, Booth learned that Morel had not done what he had requested of her and that she continued to be unable to identify the acquaintance.
Although Booth subsequently learned that person's identity to be Rosa Justo, he testified that he first learned her name upon reading Morel's affidavit attached to defendant's first 440 motion. Since Booth was never informed of Justo's identity by either defendant or Morel before trial, he was unable to call her as a witness.
Morel, in sharp contrast to Booth, testified that while she had two lengthy conversations with Booth about her recollections of the evening of December 3, 1995, Booth never asked her to attempt to locate any witnesses for the defense. She also claimed that she never even mentioned bumping into an acquaintance at Pizzeria Uno because she did not remember the encounter until after the trial.
In holding that Booth provided defendant with meaningful representation at trial, the Court found that he had thoroughly investigated and rejected an unsubstantiated alibi defense which might distract jurors from a relatively weak single identification witness case.
ANALYSIS
Under C.P.L. § 440.10(1)(g), a court may vacate a judgment where "new evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant." The power to vacate a judgment upon the ground of newly discovered evidence rests within the sound discretion of the trial court ( People v. Crimmins, 38 NY2d 407).
In People v. Salemi, 309 NY 208, 216 (1955), the Court of Appeals set forth six requirements which must be met in order for a defendant to be entitled to a new trial based on a claim of newly discovered evidence: the evidence must be such that it would probably change the result if a new trial were granted; it must have been discovered since the trial; the evidence could have not been discovered before the trial by the exercise of due diligence; it must be material to the issue; it must not be cumulative; and it must not be merely impeachment evidence ( see also People v. Reyes, 255 AD2d 261 [1st Dept. 1998]). As noted, the defendant must establish each of the six requirements set forth in Salemi (C.P.L. § 440.30; People v. Grotto, 241 AD2d 785 [3d Dept. 1997]).
Defendant's claim that the testimony of Justo and Millan constitutes newly discovered evidence fails to meet the criteria for a new trial under Salemi. First, defendant has failed to establish that the identities of these witnesses could not have been ascertained before trial by the exercise of due diligence ( see People v. Singleton, 1 AD3d 2010 [4th Dept. 2004]; People v. Aulla, 207 AD2d 497 [2d Dept. 1994]; People v. Penoyer, 135 AD2d 42 [3d Dept. 1988]). Furthermore, in view of the inconsistent and incredible nature of the proposed testimony of Justo, Millan and Morel, this evidence would probably not change the verdict if a new trial were granted.
Testimony of Justo and Millan as "Newly Discovered Evidence"
The evidence offered by defendant can not be characterized as "newly discovered" since defendant had actual knowledge of this evidence before trial. Defendant, who neither testified nor offered a sworn statement in support of the instant claim, implicitly or explicitly concedes certain facts which are essential to this conclusion. First, and most important, defendant was present during the events which were the subject of Justo and Millan's testimony. Further, defendant admitted that he never mentioned to Booth that Morel and he met anyone in the restaurant, notwithstanding defendant's extensive efforts to provide Booth with information and documents that might assist in his defense.
Testimony at the instant hearing from Morel, Justo and Millan confirms defendant's presence at the Pizzeria Uno restaurant on December 3, 1995, and that he was actually introduced to Justo and Millan during his dinner with Morel. This is the crux of the purported alibi. Thus, defendant was certainly aware of the existence of two individuals who could confirm his whereabouts at the time the crime was committed. Indeed, during his testimony at the first 440 hearing, defendant acknowledged meeting Justo that evening, and recalled that Morel referred to her as an "old friend." Accordingly, the proposed testimony of Millan and Justo may not be considered "newly discovered" since defendant was present for the event in question and had direct, personal knowledge of their presence at the restaurant that evening.
There is some evidence in the record to suggest that defendant may have even met both women before December 3, 1995. Although defendant testified that he had never met Justo and Millan before that evening, he referred to the women in his affidavit as "two acquaintances that we had not seen for a while." Defendant denied the accuracy of this statement despite the fact that he had sworn to its truth.
Despite this actual knowledge, defendant never notified his attorney, Christopher Booth, about these two independent witnesses. Defendant made quite significant efforts to provide Booth with other alibi evidence for the evening of the crime: he provided a list of the employees he drove home earlier that evening, as well as their time cards and work records; information about his evening with Morel at the time he was alleged to have committed the crime; and even the store's alarm records to establish that he closed the store earlier than usual that evening in order to spend the evening with Morel and their children. Yet, he never mentioned two unbiased witnesses who would independently corroborate Morel's testimony and provide him with an alibi for the exact time of the incident.
Indeed, defendant's failure to testify on his own behalf or even to submit an affidavit in support of his current motion leaves the Court with no basis for determining whether the failure to inform counsel was inadvertent due to a total memory loss about the encounter or an oversight (i.e., he remembered the encounter but failed to understand the importance which Booth might attach to such information).
In any event, had defendant alleged that he had no recollection of the encounter with Justo and Millan until after his conviction, such a claim would be rejected as incredible. It strains credulity to believe that seven years later in 2002 defendant was able to recall meeting Justo and Millan, with such textured details as Morel's reference to Justo as an "old friend," but that at the time of his arrest — only two months after the night in question — he would have no recollection at all of meeting anyone while out with Morel.
Even if this Court were to find that defendant's failure to alert his attorney about the existence of these two alibi witnesses was, in fact, attributable to a total memory loss about the encounter, such an excuse is hardly sufficient. The mere fact that defendant did not discover the names of the alibi witnesses sooner does not warrant the conclusion that he could not have discovered their identities before trial by exercising due diligence ( see People v. Garcia, 166 AD2d 199 [1st Dept. 1990]). In fact, defendant was eventually able to recall a number of details of the meeting with Justo. Therefore, there is no reason why this acquaintance could not have been identified by the time of trial had defendant exercised due diligence.
The record is devoid of any evidence that defendant exercised due diligence to attempt to uncover these additional alibi witnesses. In fact, defendant has failed to establish that he conducted even a cursory investigation ( People v. Rodriguez, 193 AD2d 363 [1st Dept. 1993] [defendant failed to establish requisite due diligence since he made no effort to hire investigators or take other steps to find identity of eyewitness]; Garcia, 166 AD2d at 200 [defendant failed to satisfy due diligence requirement where no evidence presented as to what attempts were made to locate witnesses before trial]; People v. Penoyer, 135 AD2d 42 [3d Dept. 1988] [defendant failed to prove that witness could not have been discovered by due diligence where no proof of any investigation for potential witnesses]). Since defendant was not incarcerated before trial, it certainly would not have been an undue hardship.
For instance, defendant has failed to offer any evidence that he had ever attempted to speak to Morel in any detail about their dinner on December 3, 1995, to try to discover any other alibi witnesses. Had defendant spoken to Morel more thoroughly about the night in question, it would have likely led to the discovery of the identities of Justo and Millan as additional alibi witnesses. If defendant had simply informed Booth about Morel's meeting an acquaintance, Booth would then have received this information from two separate sources: Morel and defendant. Rather than simply urge Morel to check with her children and defendant in an effort to jog her memory, Booth would have been much more likely to meet with Morel and defendant together and by a process of discussion and elimination attempt to ascertain the identity of the acquaintance. In this event, Booth would quickly have learned that Morel had known defendant since high school, that they lived and worked together for the past ten years, that Morel had few friends and that defendant almost certainly knew most, if not all, of them. Once Booth narrowed the range of individuals acquainted with Morel who had never met defendant, Booth almost certainly would have focused on Morel's new job at D.B. Brown and possible business relationships begun after her separation from defendant. Justo's identity as the acquaintance at Pizzeria Uno would thus likely have been established.
In view of the fact that Morel had reminded defendant that she was his alibi on the night of the crime, as well as her eagerness to testify on his behalf, Morel would have likely been cooperative with defendant despite the fact that they were no longer together. Morel testified at length that she made every effort to assist defendant's defense.
Although Morel claimed that she never told Booth that she had seen an acquaintance while at dinner with defendant, Booth's testimony to the contrary appears to be more credible. Booth has no reason to falsify his testimony on this subject.
But defendant never mentioned this to Booth. Thus, since the basic information was known by defendant, there is no question that the potential testimony of Millan and Justo would have been readily discoverable by the exercise of due diligence before trial ( see People v. Aulla, 207 AD2d 497 [2d Dept. 1994]; People v. Copeland, 185 AD2d 280 [2d Dept. 1992]; Penoyer, 135 AD2d at 45).
People v. Seneci, 133 AD2d 432 (2d Dept. 1987), involves facts strikingly similar to the facts presented in this case. In Seneci, the defendant was convicted of numerous counts of Grand Larceny in the Second Degree, with respect to the theft of several video game machines at a Coney Island arcade. At trial, the defendant's wife and two employees testified that defendant was at his Valley Stream office during the time of the alleged theft ( id. at 432). Following the verdict of guilt, the defendant moved to set aside the verdict on the basis of newly discovered evidence — namely an affidavit of a man who stated that at the time of the crime he was with defendant in his Valley Stream office negotiating a sale. He also offered various bank statements and purchase documents in support of his motion ( id.). Additionally, the defendant submitted an affidavit stating that he did not produce this evidence until after trial because he had forgotten about the sale until he inadvertently discovered the aforementioned documents. The Appellate Division affirmed the trial court's denial of the 440 motion, finding that "the defendant's excuses for failing to present this evidence until after the conclusion of trial failed to satisfy the requirement that the `newly discovered evidence' be such as could not have been discovered prior to trial by the exercise of due diligence" ( id. at 433).
Defendant has failed to meet his burden of showing that the newly discovered evidence could not have been discovered before trial with due diligence ( see People v. Wong, 256 AD2d 724 [3d Dept. 1998] [defendant's motion for new trial denied due to absence of any convincing proof that witnesses could not have been discovered prior to trial through due diligence]; People v. Rodriguez, 193 AD2d 363 [1st Dept. 1993]; People v. Fielder, 154 AD2d 388 [2d Dept. 1989]). Accordingly, since defendant has not met one of the necessary elements under Salemi, he is not entitled to a new trial.
Probability of a Different Verdict
In any event, upon review of the hearing record, it is unlikely that, even if defendant were to receive a new trial, he would receive a favorable verdict. To warrant a new trial, newly discovered evidence "must be such as to probably, not merely possibly, change the result if a retrial is had" ( see Penoyer, 135 AD2d 42 [3d Dept. 1988]). In view of the inconsistent and incredible nature of the accounts given by Morel, Justo and Millan, it is improbable that defendant would be acquitted if he received a new trial.
The inconsistencies and incredible aspects of the hearing testimony would be admissible to attack the veracity of the alibi witnesses.
Indeed, numerous aspects of the hearing testimony strained credulity. For instance, it is incredible that Justo and Millan were able to recall the exact date that they allegedly met defendant years after the fact. Both women claimed to have remembered the date in question because they had gone out that evening to celebrate Justo's birthday. Yet, it seems implausible that they would remember the exact date given the fact that they had not gone out on Justo's actual birthday. Furthermore, since they had gone out for her birthday every year, it seems unlikely that they would recall the exact date they celebrated this particular birthday. While both women claimed that this particular birthday was of special significance to Justo, they gave conflicting explanations as to the reason why. Justo stated that it was significant because it was her twenty-ninth birthday — the age of her father at the time of his death. Millan, on the other hand, claimed it was Justo's twenty-eighth birthday, a claim she buttressed by pointing out that she had turned twenty-eight that same year.
Millan had not recalled meeting defendant until five or six years later. Although Justo claimed to have recalled the event about six months to a year later, Morel stated that this recollection occurred at least two years later.
Thus, it is likely that neither Millan nor Justo were able to recall independently that December 3, 1995, was the date they purportedly met defendant. In fact, it appears that Justo's memory of the incident was tainted by her conversation with Morel. Although Morel and Justo were inconsistent with respect to who was the first to recall that December 3, 1995, was the date they met at Pizzeria Uno, it was probably Morel who first mentioned the actual date. Indeed, Morel would be more likely to know the actual date since it was of great significance to her due to defendant's case. Thus, by mentioning that December 3, 1995, was the date of their purported meeting, Morel clearly affected Justo's subsequent recollections on the subject.
Since her recollections were tainted by Morel, Justo tainted Millan's memory of the incident. There is no reason why Millan would have any independent recollection of the night in question since it was certainly of no special significance to her. Indeed, she did not even know the reason why it was significant to Justo. Furthermore, Millan testified that she was told by Justo that she was a witness in the case because she had seen defendant with Morel at Pizzeria Uno on December 3, 1995. Thus, it is apparent from her testimony that any independent recollections she may have had about the incident were clearly tainted by what she was told by Justo.
It is also incredible that Millan and Justo were able to identify defendant in court. According to their own testimony, both women had met defendant for a few minutes on a single occasion in December 1995. It strains credulity to believe that they were able, without hesitation, to identify defendant in court nearly nine years later. Justo offered no explanation for how she was able to recall defendant's physical appearance. While Millan had a purported explanation for recalling defendant, it was rather unlikely. Millan claimed that she remembered defendant's appearance because he was short. Yet, on each occasion when she had seen defendant, both at the restaurant and years later in court, he was seated, making it rather difficult to ascertain his height. Additionally, it seems unlikely that she would remember defendant but had no recollection of the presence of his two children. It should also be noted that while both women claimed that they were specifically able to recall Morel because of her hair, they gave conflicting descriptions of its color.
Furthermore, it seems incredible that Morel had no recollection of meeting Justo and Millan until years later. Indeed, Morel was able to recall some details relating to the encounter, such as the fact that she referred to Justo as an "old friend," and that Justo mentioned that she was celebrating her birthday. Yet, she maintained that she had no recollection of these events merely a few months later during the pendency of defendant's case.
Morel's assertion that she informed new retained counsel at some point about Justo also seems most unlikely. If Morel informed new counsel about Justo, as she claims, it is simply not believable that the attorney would have told Morel that Justo would not be "necessary" or "important" as a witness at a post-conviction hearing.
Additionally, it strains credulity to believe that defendant had never met either Rosa or Rafael Justo. Morel had testified that while she was employed at Pioneer, she and Rafael Justo attended weekly meetings for the owners and managers of Pioneer store. She had also seen Rafael and Rosa Justo at the yearly dinners held by Pioneer and N.S.A. It seems unbelievable that despite the fact that defendant owned and managed a Pioneer store and was living with Morel at the time, he never attended any of these meetings or dinners.
In addition to those discussed supra, there were other major inconsistencies in the accounts of the three defense witnesses. First, both Millan and Justo were inconsistent with respect to whether they had discussed defendant's case with anyone else. Both witnesses steadfastly insisted that they never discussed defendant's case with anyone. Justo claimed, rather incredibly, that she never even told her husband about the case, and that he did not know that she was called to testify as a witness. However, her testimony is directly contradicted by Morel's testimony, in which she stated that Rafael had told her that his wife had apprised him about defendant's situation.
Justo also alleged that she never discussed the case with Millan, despite the fact that the women were best friends and talked to each other twice daily. While Millan initially made the same claim, she later contradicted herself, as well as Justo, when she conceded that she and Justo had spoken about the case on several occasions.
There was also a major inconsistency between Morel and Justo with respect to when their conversation about defendant's case actually occurred. Justo testified that the first time she had seen Morel since December 3, 1995, was about six months to a year later. If this is so, defendant's criminal case was still pending. However, Morel testified that their conversation occurred at least two years later after the completion of defendant's case.
Justo was also inconsistent with respect to the conversation itself. Justo initially testified that Morel had merely told her that defendant had been arrested and did not "mention anything specific." However, Justo later contradicted herself, and stated that Morel had given her details about defendant's case such as why she believed in his innocence.
Justo and Morel were also inconsistent with respect to the nature of their relationship and the amount of contact they have had with one another. Justo testified that she was not personally acquainted with Morel, and had recalled meeting her at social events in connection with her husband's business. Specifically, she remembered meeting Morel at two N.S.A. dinners. She claimed that she had not seen or spoken to Morel since their conversation at the Bravo Supermarket somewhere between June and December of 1996.
In contrast to Justo's testimony, Morel's testimony gave the impression that she and Justo were, indeed, personally acquainted and had seen and spoken to one another on numerous occasions. Morel testified that not only had she seen Justo at both the Pioneer and N.S.A. annual dinners, but that she had also seen her at the Bravo Supermarket two or three times a year. She also testified that she had spoken to Justo over the phone on many occasions — probably two to three times a month — in the course of her business calls to Bravo. Morel stated that, in the course of their conversations, they often discussed their families, as well as other personal matters such as defendant's incarceration and Justo's struggle with infertility. Morel further contradicted Justo's testimony when she stated that she had, in fact, seen Justo since their conversation about defendant. Morel had seen Justo during a visit to the store on a subsequent occasion at which time Justo repeated her earlier offer to assist defendant. Morel also stated that she had seen her about a year earlier at Justo's mother's funeral. This certainly contradicts Justo's claim that she has not seen Morel since some time in 1996.
In sum, in view of the inconsistent and incredible nature of the proposed evidence, there is only a possibility, not a probability, that defendant would receive a favorable verdict if a new trial were granted. Furthermore, this evidence was clearly discoverable before trial by exercise of due diligence. Accordingly, since defendant has failed to meet the necessary requirements under Salemi to be entitled to a new trial, defendant's motion to set aside the judgment of conviction is denied.
This is the decision and order of this Court.