Opinion
No. 7806–1991.
06-13-2014
The PEOPLE of the State of New York v. Shane WATSON, Defendant.
Robert Boyle, Esq., Counsel for the Defendant. Glenn Garber, Esq., Rebecca Freedman, Esq., The Exoneration Initiative, for the Defendant. Justin Braun, Pishoy Yacoub, Rebecca Johannesen, Assistant District Attorneys.
Robert Boyle, Esq., Counsel for the Defendant.
Glenn Garber, Esq., Rebecca Freedman, Esq., The Exoneration Initiative, for the Defendant.
Justin Braun, Pishoy Yacoub, Rebecca Johannesen, Assistant District Attorneys.
Opinion
RICHARD L. PRICE, J.
On November 23, 1997, judgment was entered against the defendant in Supreme Court, Bronx County (Sheindlin, J.), convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ), and sentencing him to an indeterminate term of life imprisonment with a mandatory minimum period of twenty years.
I. Background and Procedural History
On October 9, 1991, at approximately 11:30 p.m., in the area of Schieffelin Avenue in Bronx County, the defendant fired several shots at Marc Johnson from behind striking him in three places: his right thigh, his right shoulder blade, and the back of his skull. Johnson sustained two broken ribs, a torn right lung, and a pierced brain that resulted in his death. He also sustained several flat, dry, broad abrasions to the left side of his head, nose, and mouth, as well as a laceration of his lip, all of which were consistent with a fall.
At trial, Christine Holloway, a retired New York City Correction Officer, testified that while driving on Schieffelin Avenue, she passed a man (the deceased) standing adjacent to the passenger side of a BMW that was parked near a fire hydrant. After arriving at the illuminated parking area of her apartment building, Holloway stated that a second man (the defendant) walked approximately three to five feet in front of her vehicle so suddenly that she immediately applied the brakes. With her headlights on, she observed the defendant hunched over wearing dark pants, sneakers, and a dark-colored jacket with a hood pulled over his head. Holloway testified that she and the defendant looked directly at each other; she smiled but “his face was in a scowl as if he was angry.” She also described his eyebrows “like a hood over his eyes.” Ms. Holloway further stated that because it was late and he looked angry, she parked her vehicle, turned the engine and headlights off, and remained inside to watch him.
Subsequently, Ms. Holloway then heard a gunshot, and observed the defendant, who was at that time approximately thirty feet from her vehicle, chasing the deceased in a zigzag manner while firing three or four shots. Although her view became obscured by a building, she observed the defendant reappear approximately five to ten seconds later, and quickly walk along the sidewalk closest to where her vehicle was parked. In short, Ms. Holloway had an ample opportunity to view defendant's face from both the front and the side as it was exposed from within his sweatshirt's loosely-drawn hood. Moreover, in a well-lit area and with her vehicle headlights on, she made eye contact with him (T 531–41, 544–47, 566–68, 574–75, 578, 580–81, 584–90, 595–601).
For the purpose of this decision, “T” refers to the trial record.
The trial also included testimony from two sisters, Monique and Robin James (twenty and eighteen years of age at the time, respectively). Both were inside their first floor apartment located at 1961 Schieffelin Avenue at approximately 11:30 p.m. when they heard gunshots. From her bathroom window, Monique observed a black male, medium build, dressed in black, and wearing a hat underneath a hood, running in the direction of 1981–1985 Schieffelin Avenue. She further observed a person lying on the ground. At the same time, Robin observed a male chasing and shooting another male who then fell to the ground. From her bedroom window, Robin observed the shooter wearing a black, hooded sweatshirt and black pants.
Two days later, on October 11, 1991, Detective Sevelie Jones prepared a photographic array that contained frontal and profile photographs of six different men. The defendant's photograph was the only one to appear in the same position in each row. On the same day, Detective Jones presented that array to Ms. Holloway, who identified the defendant's profile photograph but not the frontal. He also presented it to Robin James, who identified the defendant's frontal photograph.
Three days later, on October 15, 1991, Detective Jones presented the same array to Monique James. Like Ms. Holloway, she identified defendant's profile photograph but was unable to identify the frontal. On the same day, Robin and Monique James separately viewed a line-up proceeding; both identified the defendant. On November 20, 1991, Ms. Holloway also identified the defendant in a line-up proceeding.
As noted, judgment was entered against the defendant after a jury trial in the Supreme Court, Bronx County (Sheindlin, J.), on November 23, 1993, convicting him of murder in the second degree and sentencing him to an indeterminate term of life imprisonment. On October 30, 1997, the Appellate Division, First Department, unanimously affirmed the judgment of conviction (see People v. Watson, 243 A.D.2d 426 [1st Dept 1997] ). On June 29, 1998, the Court of Appeals denied defendant's application for leave to appeal from the Appellate Division (Levine, J.) (People v. Watson, 92 N.Y.2d 863 [1998] ).
On December 24, 1998, the defendant, pro se, petitioned the United States District Court for the Southern District of New York for a federal writ of habeas corpus. On November 30, 1999, Judge Shira A. Scheindlin denied defendant's application (see Watson v. Artuz., No. 99 Civ 1363, 1999 WL 1075973 [SDNY 1999] ).
In February 2008, the defendant moved pro se in the Supreme Court Bronx County to vacate the judgment pursuant to CPL 440.10, asserting that his due process rights were violated by improper police-arranged identification procedures. On April 17, 2008, Justice Michael Sonberg denied defendant's motion.
On July 25, 2008, the defendant moved pro se in the Appellate Division, First Department, for a writ of error coram nobis claiming that he received ineffective assistance of appellate counsel. Specifically, the defendant alleged counsel failed to assert the claim that his due process rights were violated by improper police identification procedures. On April 2, 2009, the First Department denied defendant's application (see People v. Watson, 2009 N.Y. Slip Op 68420[U] ).
By motion submitted June 19, 2013, defendant moved through counsel to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(c)(f)(g)(h) arguing that 1) recantation of the People's eyewitness' constitutes newly discovered evidence, 2) trial counsel rendered ineffective assistance of counsel, and 3) the People failed to disclose exculpatory evidence during the pendency of defendant's case. Specifically, the defendant claims Christine Holloway's recanting of her identification of the defendant as the shooter, and “proof of improper and prejudicial conduct by the police/prosecution and a violation of the prosecution's duty to disclose exculpatory evidence” constitute newly discovered evidence. Defendant further claims counsel's failure to procure an alibi witness and door-opening cross examination that effectively converted a one-witness identification case into a three-witness identification case resulted in his receiving ineffective assistance of trial counsel.
Effectively, defendant's motion was submitted on April 29, 2013, when defendant filed his reply to the People's opposition. The motion was not, however, marked submitted at that time. Instead, it was calendared for June 19, 2013. At that time, this court held a conference with the parties to determine whether an evidentiary hearing should be conducted before the issues of law could be resolved, after which this court concluded that such a hearing was necessary.
By interim order, also dated June 19, 2013, this court directed that an evidentiary hearing be held on these issues. That hearing commenced on July 15, 2013, and concluded on October 23, 2013. The defense called four witnesses: eyewitness Christine Holloway, the decedent's girlfriend Diana Almonte, retired crime scene detective Hal Sherman, and defendant's trial counsel Paul Markstein. The People called retired detective Sevelie Jones, former Assistant District Attorney Brian Sullivan, and certified stenographer Natalie Perez. The testimony of these witnesses is credited to the extent indicated. This decision is based upon their testimony and respective papers submitted in connection with this matter.
This hearing continued on July 15, 2013, July 16, 2013, July 17, 2013, August 5, 2013, August 26, 2013, September 20, 2013, and October 23, 2013. Post hearing memoranda were to be submitted by November 27, 2013, which the court subsequently extended. The People submitted their post hearing memorandum of law on December 6, 2013; defendant submitted his post hearing memorandum of law on December 9, 2013.
II. The Hearing
Christine Holloway
On July 15, 2013, Christine Holloway testified before this court and disavowed her trial testimony identifying the defendant as Marc Johnson's murderer. At the hearing, she admitted that her attention was drawn to the man who crossed in front of her car, but insisted that she did not see his face (H 27–29, 110). Ms. Holloway further stated that although she later observed an individual chasing another person through the street in a zigzag pattern while shooting a gun, she was unable to see either of their faces (H 29–31, 36, 56). She also claimed her 1993 trial testimony concerning the BMW parked next to the fire hydrant was not accurate; rather, she was unaware it was a BMW until such information had been provided to her before testifying. Finally, and more poignantly, Ms. Holloway claimed that her testimony concerning the shooter pointing the gun at the individuals standing near the BMW was false (H 51–52, 56).
For the purpose of this decision, “H” refers to the CPL 440 hearing record.
According to Ms. Holloway, the genesis of her recantation was in 2012, when Wantani Tyehimba, a private investigator, approached her at her home in Atlanta. Mr. Tyehimba informed her that he was looking into the Shane Watson case. After later meeting with Mr. Tyehimba and defense counsel Robert Boyle, Ms. Holloway voluntarily signed an affidavit formally recanting her trial testimony (H 59–62). In early 2013, the Bronx County District Attorney's Office contacted Ms. Holloway and arranged for her to travel to New York. On January 24, 2013, she met with Assistant District Attorney Rebecca Johannesen and Assistant District Attorney Justin Braun to discuss her trial testimony and subsequent recantation of it (H 62–3). Also participating in the meeting via speaker phone was Assistant District Attorney Pishoy Yacoub.
Ms. Holloway testified, among other things, that she neither discussed nor thought about the substance of the case or her recollection of the crime since the trial until speaking with Mr. Tyehimba (H 65, 69–70). In an effort to explain her recantation after twenty years, Ms. Holloway stated that she first began “to doubt things” after being approached by Mr. Tyehimba in her driveway (H 59, 81). She then embarked on a six-month therapeutic path of self-realization to deal with her trial testimony identifying the defendant as the shooter. Such introspection ostensibly compelled Ms. Holloway to testify at the CPL 440 hearing,
... [A]t the time, years ago, like I said, so much was going on. So, it was okay. But as time went on, and through therapy, and we went through the day of the crime, I realized that I didn't see that person. I didn't see them. You know, I had to go through therapy because of numerous things going on in my life, and I realized that maybe I shut down some stuff. And I just realized that I needed to say the truth. You know, like I really don't know him I really never seen him before until that night I was shown the picture (H 65).
While Ms. Holloway testified that she willingly spoke with Mr. Tyehimba when he initially approached, her January 24, 2013, statement to the District Attorney suggests otherwise. In that statement, Ms. Holloway recounted that she received “weird” letters on defendant's behalf from a church organization, and business cards from a Georgia private investigator working with the defense team. She further stated that the investigator repeatedly waited in her driveway, knocked on her door, called out to her by first name and “smooth talk [ed]” her. Despite attempting to disavow this account, Ms. Holloway acknowledged they made her feel like she “had to comply” by emphasizing the defendant was innocent. By her own admission, it was “scary after a while” (S 61–62, 70–71, 73–75, 77, 79, 81, 113, 121).
For the purpose of this decision, “S” refers to Ms. Holloway's January 2013 statement at the District Attorney's Office.
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Eventually, Ms. Holloway signed an affidavit recanting her identification of the defendant as the shooter. But despite stridently asserting she “wouldn't have signed it if it wasn't true,” Ms. Holloway admitted that she did not learn of the trial's outcome until recently and had moved on with her life (H 59–61, affidavit of Christine Holloway, 19). And as the People observe, this admission squarely contradicts her statement that she had “long been haunted and disturbed about what happened at the trial” (affidavit of Christine Holloway, 19). As such, Ms. Holloway's assertion that she did not feel intimidated by the defense investigators, and only signed the affidavit because it was the truth, lacks credibility.
Indeed, Ms. Holloway attributed her epiphany to what she retroactively characterized as “police misconduct” during the investigation. Initially, Ms. Holloway testified that she informed investigating officers of her inability to identify the perpetrator, to which they responded, “don't worry about it” (H 37). At the time, however, Ms. Holloway did not believe their response was significant because her interview with detectives was comfortable and felt like an everyday conversation to the extent she assumed the defendant was the shooter. She attributed such comfort to her career as a New York City Correction Officer. In her view, detectives spoke to her “just like [she] was one of them.” Ms. Holloway claimed they made her so comfortable it prompted her to tell detectives, “I had other things on my mind” and “just wanted to get away ... I'm sorry I did what I did, but I didn't want to be there.” Specifically, Ms. Holloway testified that she was not “in the right state of mind” to make a positive identification because she had signed a Do Not Resuscitate order for her hospitalized brother immediately prior to witnessing the shooting. Ms. Holloway explained that she was unable to identify the shooter because it “didn't dawn on [her] to look.”
According to her, detectives nevertheless stated, “We're going to show you some pictures ... You're going to have to pick them out of a line-up.” She claimed detectives then presented her with a single photograph of the defendant and “told me that was the guy” and said not to “worry about it. We have other witnesses ... we know who this is ... we got this” (H 38, 40–42, 121). It was for this reason that she supposedly responded, “If other witnesses say this is the guy, and you're telling me this is the guy, then this is the guy.” Detectives then allegedly “said okay” and “made it easy” for her (H 12–14, 41–42, 46–48, 99–101, 110–11).
As to the issue of Ms. Holloway's care for her brother and its effect on her state of mind at the time, this court notes it was indeed heard by the jury to consider. During her trial cross-examination, Ms. Holloway affirmed that, immediately prior to being in the parking lot of her apartment building, she had been at the hospital visiting her ailing brother. Defense counsel then asked, “Would it be fair to say that your mind was occupied with thoughts of your brother ... ?” Ms. Holloway replied, “No, it would not be” (T 578–79).
Arguably, Ms. Holloway's most salient testimony was her claim that she knowingly “lied at trial” by identifying the defendant. Denying that her positive identification of him was authentic, Ms. Holloway blamed the police for suggesting she “keep the story going ... to continue with the same story she always told” even though she “knew that wasn't true” (H 54, 104–05, 107, 109, 113). This, however, is contrary to her claim that she first began “to doubt things” after the private investigator first approached her in her driveway (H 59, 81). It also stands in sharp contrast to her other hearing testimony that she “always knew there was something wrong with the photo arrays [s]ince the night I looked at it” (H 94, 97, 118).
Detective Sevelie Jones
Former Detective Sevelie Jones, a 23–year veteran of the New York City Police Department, testified that in October 1991 he was assigned to the 47th Precinct Detective Unit. Six months before retiring, on October 9, 1991, Detective Jones responded to 1961 Schieffelin Avenue in Bronx County. Upon arrival, Detective Jones was designated as the case officer assigned to supervise the investigation of Mark Johnson's murder.
Later that evening, Detective Jones interviewed Christine Holloway at the 47th Precinct. At the hearing, the People read Detective Jones' 1993 trial testimony recounting that interview:
She explained to me in substance that she was getting out of the car, and she had observed a man with a gun, which she later identified as—well, before I go there, he was holding something underneath his hood. Then she saw a man standing next to a car. Subsequently the person pulled out a gun and shot, started firing, and he started—after he fired several shots he walked away very fast, the person with the gun (H 307).
Detective Jones then described Ms. Holloway's demeanor during their October 9, 1991, meeting,
Well, prior to me starting to question her, asking her about this particular incident, we had a general conversation, how she was doing so far and all, and she explained to me she was a New York City Corrections Officer. She was very calm, relaxed, very professional at the time. Other than that nothing unusual about her, anything like that ... [T]hen I started talking to her about what had happened on that date, which I was already informed by another detective, and from there that was basically the end of the conversation (H 308–09).
Following their conversation, Detective Jones displayed a photo array to Ms. Holloway that included the defendant's picture. Detective Jones explained that he assembled the defendant's photograph and five photos of individuals with similar characteristics in a random order. He indicated that those photographs were obtained either from the precinct or the photo unit in Manhattan (H 309–10).
In this case, Detective Jones indicated that investigators prepared two photo arrays, both of which were arranged in a manner so as not to confuse those viewing them and ensure accuracy. With respect to both arrays, Detective Jones stated that the defendant's photo appeared in the number one position. When asked why, Detective Jones testified, “There was no particular rhyme or reason. I just put down photos ... I try to give photos to match that everybody is kind of-looks similar or alike in as much as certain manners, whether the notes, mustache, whatever” (H 311).
Immediately prior to displaying the photo array, Detective Jones testified that he instructed Ms. Holloway to look at it, and if she knew “anybody or recognize[d] anyone from the photo array ... [to] please point it out” (H 312). As Detective Jones independently recalled, Ms. Holloway “took time to look at each individual carefully, and then she pointed out number 1 as being the person she observed doing the shooting that particular night ... on October the 9th” (H 313). When asked whether Ms. Holloway expressed any hesitation at her selection, Detective Jones replied, “No, sir, she did not” (H 313).
This court also finds it significant that Detective Jones stated he neither mentioned Shane Watson to Ms. Holloway nor advised her that his photograph would appear in the array. Equally noteworthy, he did not disclose to her the existence of other witnesses. Finally, Detective Jones categorically denied displaying single photographs of the defendant to Ms. Holloway in advance of presenting the array to her. When the District Attorney asked why he did not, Detective Jones replied, “It's not the way it's done. We was [sic] never taught that way. You put the photos in a photo array and you show it to the individuals and they select it or not select it” (H 314).
Assistant District Attorney Brian Sullivan
Former Assistant District Attorney Brian Sullivan, the 1993 trial prosecutor, provided the background to Ms. Holloway's trial testimony. Mr. Sullivan testified that on two or three occasions, he met with Ms. Holloway to discuss the case (H 416, 400–402, 405). During these meetings, Ms. Holloway always appeared pleasant and was cooperative. Confirmed her statements to the detectives, Ms. Holloway stated that she carefully watched the defendant for a prolonged period of time as he walked in front of her car, and during the shooting. At no time did Ms. Holloway express any doubt or hesitation as to the shooter's identity. Moreover, Mr. Sullivan testified that Ms. Holloway indicated she would never forget the guy because it was late at night, she was in her car, he came across in front of her car, in her headlights, and he looked at her and she saw the way he was with his hand, that he had his hoodie up ... The same guy that she said she saw in the lineup, and the same guy that she said was in the courtroom” (H 403–05, 416–17, 429).
Diana Almonte
Testifying pursuant to a defense subpoena, Diana Almonte, explained that she met the defendant in her early teen years when they began dating. Although their relationship ended after a few months, the breakup was amicable and they remained friends. By October 1991, the defendant began a long-term relationship with Mercedes De La Paz. As of October 1991, Ms. Almonte had been living with her family at 1981 Schieffelin Avenue for twenty-five years; Ms. De La Paz lived in an adjoining apartment building with her mother. Consequently, the defendant and Ms. Almonte would see each other in the neighborhood, and spoke whenever they did. In fact, Ms. Almonte stated she was living there at the time of the murder and continued living there through trial (H 125–129, 151). Ms. Almonte further stated that at no time was she asked to testify in court, nor was she contacted by either the defendant's attorney or anyone associated with his defense (H 143, 149, 161).
By October of 1991, Ms. Almonte had been in a romantic relationship with the decedent, Mark Johnson, for approximately one and a half years. She testified that the defendant and Mr. Johnson knew each other and were cordial. Ms. Holloway further stated she was unaware of any bad blood between them (H 130). In fact, Ms. Almonte testified she was “shocked” to learn that the defendant had been arrested for Johnson's murder “because me and him were cool” (H 130, 142).
Ms. Almonte stated that on October 9, 1991, she was working at a gas station located on the corner of 233rd Street and Baychester Avenue. Like every other late-night shift, Mr. Johnson drove to the gas station when she finished work at 11:00 p.m. He then followed her home in his car while she drove hers. Upon arriving, she parked her car on Schieffelin Avenue; Mr. Johnson parked his car adjacent to a fire hydrant located in front of 1981 Schieffelin Avenue. They then had a conversation on the sidewalk near the fire hydrant (H 131–33). Several minutes later, Ms. Almonte noticed a man on the sidewalk approximately ten feet away, who was approaching them from the direction of the parking lot. She testified that he was wearing a dark hoodie with the hood strings pulled tightly around his head such that it concealed his face. Approaching them from their side, the man displayed a gun that he removed from under his hood, pointed it at Mr. Johnson, and looked in Ms. Almonte's direction. Ms. Almonte immediately ran to her car, quickly backed out, and drove around the block (H 135–141, 154–157).
When Ms. Almonte spoke with detectives and the assistant district attorney, she provided her telephone number and address, and told them that she was unable to see the man's face. As such, Ms. Almonte could not provide a description. In fact, she was unable to even determine his race. Ms. Almonte further indicated that she did not observe anything distinctive about his walk (H 138–9, 142, 161). Not surprisingly, detectives did not ask her to view a photo array or attend a line-up, and the District Attorney did not call her as a prosecution witness. Nevertheless, speculated that the defendant “could have been the shooter” (H 162–3).
Ms. Almonte testified that after the defendant's arrest, his mother and other relatives repeatedly appeared at her home to speak with her on the defendant's behalf. She indicated that their conduct made her feel “hurt, bad ... my sister would be like, Just leave her alone, stop coming here. This is harassment' ... A lot of people came” (H 152–4). She further explained that the defendant's nephew “pretend[ed] to be jogging around” Cardinal Spellman High School in an attempt to pressure her. Ms. Almonte stated that such behavior made her feel “scared” (H 154).
Paul Markstein
Paul Markstein, admitted to the New York State Bar in 1982, was retained by the defendant and served as his 1993 trial counsel. Mr. Markstein is a litigator whose practice concentrates on criminal defense. While acknowledging that the defendant's case was, and remains, his only homicide trial, Mr. Markstein had tried fifteen cases, several of which included shootings based on eyewitness identifications (H 215–17, 220, 243).
At the outset, it must be noted that Mr. Markstein categorically refused to meet with, discuss, or respond to any inquiries made by either defense counsel or the District Attorney in advance of the 440 hearing. The basis for such refusal was predicated on his belief that the rules governing professional responsibility required it in order “to maintain confidences of my client ... whether they're current or former, especially if I have no informed consent.” Although Mr. Markstein indicated that he had not obtained informed consent from the defendant, the record is entirely unclear whether he sought it (H 231–32, 240–42). Also unclear is why such refusal extended to matters beyond the attorney-client privilege, such as his work product, strategic analysis, and the circumstances surrounding his representation.
With respect to Mr. Markstein's memory, this court understands that given this hearing was held twenty years post-trial, Mr. Markstein would be unable to recall specific details such as the date he was retained, the date or year that the murder occurred, the number of shots fired, the deceased's name, or the circumstances of the shooting. It is also understandable that Mr. Markstein had a poor recollection of certain decisions relating to his defense strategy, and that he was unable to review his file:
I don't have the file any further to review anything in this case that I originally had ... My file was destroyed. I do maintain most of my files for probably too long. I'm supposed to maintain them for seven years according to the rule. There was a, I believe it was one of the hurricanes, I'm not quite sure which one, I lose track of the names, but one of the hurricanes destroyed my files and they were taken away by restoration people (H 242).
What this court found surprising, however, was Mr. Markstein's ostensibly abject lack of preparation with the materials that were available to him. Surely both parties have been in possession of the trial record, discovery, and other reports and related documents; the court, too, is in possession of its file. Yet, Mr. Markstein poignantly admitted that he never sought them. Such failure is particularly puzzling given his gratuitous comment, “I'm surprised no one has commended me on my tremendous memory, but that's okay” (H 217–19, 241–42).
For example, Mr. Markstein could not remember the defendant's polygraph examination, done at his request. When asked whether he used one in this case, Mr. Markstein replied, “No.” After being confronted with his own report of the defendant's examination, Mr. Markstein stated, “I obviously misspoke ... I did not recall Mr. Laurendi doing an exam.” Upon reviewing his report for the first time in court, Mr. Markstein testified that an analysis of the defendant's responses indicated the absence of any deception. “Mr. Watson denied committing the crime and the polygraphs seem to back that up.” But when asked whether “that finding ... play[ed] any part ... in [his] strategy in terms of defending Mr. Watson,” Mr. Markstein responded, “I don't recall” (H 221–222).
Regarding Mr. Markstein's rapport with the defendant, and the extent to which they collaborated on a defense strategy, Mr. Markstein stated, “I had represented Mr. Watson once before so we had a ... relationship where there was trust involved and he understood. We spoke the same language when we were discussing the way we were going to handle the case” (H 245).
When asked about their specific defense strategy, Mr. Markstein testified,
Our strategy was essentially to attack the credibility and reliability of the eyewitnesses. We felt and I felt and he agreed that the momentary view of him supposedly or of the perpetrator in front of a car by the key witness was not a particularly strong case. There was no other physical evidence. The two sisters who were in an apartment further away were also unreliable. We felt attacking their credibility was more than sufficient to undermine the case and to create a reasonable doubt” (H 244–45).
Mr. Markstein also believed the evidence connecting the defendant to the shooting was weak:
I felt that the identifications were not particularly strong. The two sisters were a distance away. It was late at night and I didn't feel that they were particularly credible. And the corrections officer had a momentary glance of an individual with a, um, as she described it, a, um, a hoodie over their heads, and so I felt the inability to be able to see the persons, to see their clear features and only to be able to see a small portion of their face for a brief second I thought was a relatively weak case, and I was going to attack the credibility of those witnesses (H 224–25).
With respect to his strategy of cross examining Monique and Robin James, Mr. Markstein explained,
My impression of them was that both of them were extremely weak willed, and not particularly bright, frankly. And I thought that they might have been coerced. And, so, they came in and alleged that from a far away distance from a corner apartment, late at night, they could see things that they claimed to have been able to see. I thought—it seemed to me as though, again, they had been coached and coerced ... And I had remembered some of these detailed over the weekend. It seemed to make sense to me to attack the manner in which Mr. Watson may have been suggested to them. And I recall that [in] the photo array that had been produced by Detective Jones ... Mr. Watson's ... front and profile pictures were in the same position in the two arrays, which is highly unusual ... and I believe they were—he may have been in the first position in both arrays, which was highly unusual. And it would have lent itself to possible suggestion to the James girls if the photo arrays were shown that way. And, so it seemed obvious if they were shown suggestive photo arrays, which would then result in them essentially being told who to pick, that then the step thereafter, following that up with a positive lineup, would have been a natural consequence. And that, in turn, would have naturally led to my client being identified in court. So it seemed to me that makes sense as a strategy (H 259–60).
When asked whether he recalled the James sisters ever identifying Mr. Watson in court, however, Mr. Markstein's memory waned:
Mr. Boyle: Now concerning the two sisters ... to the best of your recollection, did they on their direct examinations identify Mr. Watson in court?
Mr. Markstein: I don't recall that. I do remember that they were uncooperative with the prosecution. In fact my recollection was that they ... had to be brought in by the detectives for the People.
Mr. Boyle: Did they identify Mr. Watson in court?
Mr. Markstein: As I answered you before, I don't recall. It appears from your questions that I didn't, but ... I don't know have an independent recollection.
Mr. Boyle: You don't recall one way or the other?
Mr. Markstein: No, I don't.
Mr. Boyle: What was your understanding as you sit here today as to whether either of the James sisters participated in an out-of-court identification procedure?
Mr. Markstein: I don't recall (H 225–27).
As to Mr. Markstein's decision to elicit the photo array and lineup identifications of the defendant, his memory was further diminished:
Mr. Boyle: Do you recall that you yourself elicited photo ID and lineup identifications made by the James sisters during your cross-examination?
Mr. Markstein: I don't recall.
Mr. Boyle: So would you recall the reason why you elicited such out-of-court identifications?
Mr. Markstein: I would be hypothesizing as to that. I'm sure I had a good reason if I did do that (H 225).
Mr. Markstein also testified about locating potential defense witnesses:
We did investigations. We did all of the workup. I mean this case—I didn't handle this case in two weeks. This was a long case that took a lot of work and effort. I had my investigator out there. We spoke to witnesses. As I recall, we even found a witness to undermine the credibility of Miss Holloway and her entire version of what happened (H 245).
One such individual was Marguerite Martine, Ms. Holloway's neighbor. Ms. Martine testified at trial that Ms. Holloway stated to her that she did not see anything, and the police had instructed her on what to say. Mr. Markstein commented that although Ms. Martine had no motivation to lie, “Apparently, that testimony was rejected by the jury ... but I did give that witness ... and I thought that was an extremely strong way to undermine the credibility of the eyewitness.” Interestingly, Mr. Markstein never met with either the defendant's mother, Joan Watson, or Mercedes De La Paz. Regarding Ms. De La Paz, Mr. Markstein recalled discussing with the defendant that they had been together at the time of the shooting, stating, “My best recollection was it had something to do with being home and watching television.” When asked why he never spoke with Ms. De La Paz, Mr. Markstein simply replied, “She never came to me” (H 219, 246–47).
Ultimately, Mr. Markstein declined to employ an alibi defense because he “had heard that explanation from so many clients in the past, and the fact that it was coming from my client and his alibi witness was going to be his wife didn't ring particularly true to me .” When asked why, Mr. Markstein replied,
The wife is obviously going to be viewed as an interested motivated witness to lie. The explanation of where he was, which was at home watching television, was blasé at best. The fact that we were going to raise ... another series of issues ... for the DA to attack when we were really focusing on the identification, the fact that I never got to meet this witness who was living with him ... went into a decision a some point not to go with an alibi (H 246–47).
Mr. Markstein further explained that many attorneys in Bronx County believe juries view the police as “purveyors of lies and untruths.” Alibi defenses, especially ones that rely on the testimony of immediate family members, provide the District Attorney with information that the District Attorney can easily discredit. Nevertheless, Mr. Markstein lamented,
The fact that I never got to meet this witness who was living with him ... at no time did I ever get a chance to speak to her or determine her credibility ... The fact that this witness was never produced to me by a defendant who was out of jail at the time was essentially the main reason we didn't go that way. Had I met Miss De La Paz and been impressed with her, had I heard her explanations, had I gotten more detail, maybe we would have gone that way (H 247–48).
Mr. Markstein did, however, decide to offer evidence of a leg injury that resulted in the defendant walking with a limp. Given that none of the witnesses observed anything unusual about the shooter's gait, he believed it would be of value to present such evidence. But, there were several problems. Among them was that “During the course of my discussions with Mr. Watson,—and we met many times—I never observed him walking with any kind of aid, a cane, or with any kind of limp or anything noticeable that I noticed with regard to his ability to walk.” Additionally, Mr. Markstein did not have the defendant's medical records because “none of that information had been given to me by Mr. Watson. I had never received the name of a doctor. I had never received the name of a hospital ... he certainly, as the patient could have provided me with this information or record directly, and I never got any of that.” Still, Mr. Markstein located an individual purportedly able to testify “about Mr. Watson's inability to get around quickly.” Although he could not remember the person's name or how the defense investigator located him, Mr. Markstein commented,
... I had a pretty effective investigator ... I know that he was someone that clearly knew Mr. Watson ... And, as I recall, we did put that to the jury for their consideration, that he was unable to perhaps get around quickly. And that's all I got to say about that (H 261–62).
Regarding Diana Almonte, Mr. Markstein testified that he attempted to locate her as well:
She not only was a potential—well, for several reasons. She gave a description, which was written up in a police report that I had actually been shown here last week, and the description was inconsistent with Mr. Watson in terms of height, weight, and things of that nature. And, purportedly, as I recall, the victim had come to that location with Ms. Almonte. So, she knew the victim, and she was in a vehicle perhaps fifty—a hundred to a hundred and fifty yards away from where this incident took place. But she could have conceivably been an effective eyewitness (H 262–63).
Notably, when the police report to which Mr. Markstein referred was initially shown to him, it did refresh his memory as to whether Ms. Almonte gave a description to detectives. “Again, it does not refresh my recollection, but it is clear that it says that she did give one, so obviously, that's ... what's in this particular document” (H 238–39). Yet, Mr. Markstein later testified that reviewing the report indeed refreshed his memory. It also refreshed his memory about deciding to locate Ms. Almonte, precisely because the description in it indicated the perpetrator was “clearly shorter and lighter in weight than my client” (H 277–78).
As for the efforts Mr. Markstein and his investigator made to locate and speak with Ms. Almonte, Mr. Markstein testified,
We tried to find her, we tried to speak with her, we tried to contact her, yes, on numerous occasions, she refused to cooperate ... Without over-categorizing, it appeared to me that Ms. Almonte was trying to make herself unavailable. We could not find her. We had no way of tracking her down (H 239, 263).
When pressed, however, Mr. Markstein tersely responded,
I don't recall what those efforts were, but I know we made those efforts. I don't know if we had phone number, addresses [sic]. It's been twenty years. But whatever they were, we attempted to do them. Whether it was making phone calls, going to the location where she was last known to reside, speaking with people who might have known her. We couldn't find her. We had reason to suspect that she might have gone underground (H 276).
Still, when directly asked whether any attempt was made to subpoena Ms. Almonte, Mr. Markstein replied, “No, we didn't attempt to subpoena her. She was an elusive person. And I'm going to need to speak with the Judge or perhaps you off the record, please.” After a brief bench conference between this court, defense counsel, and the assistant district attorneys, Mr. Markstein interjected that he would answer the question, which he did by stating, “The answer to your question is no, we didn't attempt to subpoena her. We were unable to find her to serve the subpoena in the first place” (H 239–40).
Finally, this court notes that subsequent to defendant's conviction and sentence, Mr. Markstein stated the defendant neither criticized nor expressed dissatisfaction with his services. In fact, according to Mr. Markstein, the defendant's response was “of a positive nature. He was grateful for my representation.” Mr. Markstein further explained that he and the defendant “had a very close relationship both before and during the case” adding, “I felt bad ... [he] was looking at a huge amount of time ... I expressed my best wishes for him while he was incarcerated” (H 269).
III. Prosecutorial Misconduct
As a preliminary matter, defendant's assertion that the People failed to disclose both Brady (the “DD–5” report documenting case detectives' interview of Diana Almonte) and Rosario material (additional handwritten notes of that interview taken by Detective Price) is wholly unsubstantiated. Mr. Sullivan testified that he provided defense counsel with every DD–5 in his file, including one relating to Diana Almonte. Moreover, Detective Jones testified that he neither received nor relied upon any additional handwritten notes from Detective Price. Absent even a scintilla of support for this claim, it is summarily rejected.
IV. Newly Discovered Evidence
CPL 440.10(1)(g) considers evidence newly discovered when it 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; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence ... (CPL 440.10[1][g] ; see also People v. Taylor, 246 A.D.2d 410, 411 [1st Dept 1998] ).
It is axiomatic that the power to vacate a conviction on the basis of newly discovered evidence is purely statutory (Taylor, 246 A.D.2d at 411), and within the sound discretion of the court (People v. Baxley, 84 N.Y.2d 208, 212 [1994];People v. Tankleff, 49 AD3d 160 [2d Dept 2007] ). To succeed on such a motion, the defendant must establish by a preponderance of the evidence (People v. Tucker, 40 AD3d 1213, 1214 [3d Dept 2007] ; see also People v. Latella, 112 A.D.2d 321, 322 [2d Dept 1985] [holding that the defendant has the burden of demonstrating “by a fair preponderance of the evidence ... that the evidence was indeed newly discovered” '] ) that the proffered evidence: (1) be of such a nature that it would probably change the result if a new trial were held; (2) be discovered after trial; (3) was undiscoverable prior to or during trial even with the exercise of due diligence; (4) be material to the issue; (5) not be cumulative; and (6) not merely impeach or contradict evidence at trial (People v. Priori, 164 N.Y. 459, 472 [1900]; see also People v. Salemi, 309 N.Y.208, 216 [1955],cert denied 350 U.S. 950;Taylor, 246 A.D.2d at 411;People v. Rodriguez, 193 A.D.2d 363, 365–66 [1st Dept 1993] ; People v. Gurley, 197 A.D.2d 534, 536 [2d Dept 1993] ).
“To warrant a new trial, the newly discovered evidence must be such as to probably, not merely possibly, change the result if a retrial is had [People v. Penoyer, 135 A.D.2d 42, 44 [3d Dept 1988] ; see Priori, 164 N.Y. at 472] ). To be clear, contrary to defendant's contention, the statutory phrase “more favorable” refers not merely to a more favorable result (i.e., whether one juror would change their vote given the newly discovered evidence), but whether there is a reasonable probability that the defendant would be acquitted (Salemi, 309 N.Y. at 208 [“the Court must assess the reasonable probability of a different verdict at a new trial where the new evidence is disclosed to the jury”]; see also People v. Brown, 36 AD3d 961, 961–62 [3d Dept 2007] [“The only issue is whether County Court erred in denying the application for DNA testing based on its determination that even if such testing had been conducted and the results had been admitted at defendant's trial, there was no reasonable probability that the verdict would have been more favorable to defendant”]; People v. Corchado, 299 A.D.2d 843, 843–44 [4th Dept 2002] [“The court properly determined that the testimony submitted by defendant in support of that motion was not 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' [CPL 330.30[3] ] ... [T]here is no significant probability that defendant would have been acquitted but for the error”] [internal citations omitted] ); People v. Pugh, 288 A.D.2d 634, 634 [3d Dept 2001] [movant must demonstrate “a reasonable probability” that the newly discovered evidence “would have resulted in a verdict that was more favorable to the defendant had they been admitted in evidence at trial”] ).
When newly discovered evidence consists of a witness recanting her trial testimony, careful scrutiny is required (Sanders v. Sullivan, 863 F.2d 218, 225 [2d Cir1988] ; People v. Shilitano, 218 N.Y. 161, 170 [1916];People v. Bermudez, 243 A.D.2d 367 [1st Dept 1997] ). Since such evidence is among the most unreliable form of proof, it should be “looked upon with the utmost suspicion” (Sanders, 863 F2 at 225 ). Indeed, “recantation in and of itself does not necessarily require the court to order a new trial” (Shilitano, 218 N.Y. at 170). In weighing whether to do so, the trial court must consider “all of the circumstances of the case” (Shilitano at 170). Such circumstances include: “(1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” (People v. Wong, 11 AD3d 724, 725–26 [3d Dept 2003] ); see also People v. Simmons, 20 AD3d 813 [3d Dept 2005] ). Thus, when a witness's trial testimony was given “without any motive to falsify” and “their statements recanting their testimony were prompted by corrupt or unworthy motives,” it should be accorded little weight (Shilitano at 170).
As noted above, Ms. Holloway testified during the defendant's 1993 trial in a detailed, forthright and compelling manner. Her testimony was reinforced by and consistent with her statements to detectives and prosecutors prior to trial. Former Assistant District Attorney Brian Sullivan, the trial prosecutor, provided the background of his investigation and trial preparation of Ms. Holloway. During the several times he met with Ms. Holloway, she appeared pleasant, was cooperative, and confirmed the substance of her statements to detectives (H 400–02, 405, 416). Ms. Holloway expressed no doubt about the defendant's identity, emphasizing that she had carefully watched him during the period of time he walked in front of her car, through the parking lot, and during the shooting. In fact, Ms. Holloway told Mr. Sullivan that she “would never forget the guy because it was late at night, she was in her car, in her headlights, and he looked at her and she saw the way he was with his hand, that he had his hoodie up” (H 405, 416–17, 429).
Mr. Sullivan also stated Ms. Holloway testified at trial that she selected the defendant from a photo array (T 542–43, 607–11, 615). When Mr. Sullivan asked whether there was any doubt in her mind that the individual she selected was the person she observed shooting the deceased on Schiefflin Avenue, she replied “[n]o” (T 543). Ms. Holloway further testified that in addition to identifying the defendant in both the photo array and lineup procedures, she identified him in court (T 543–44). When Mr. Sullivan asked her a second time whether she was “certain that the defendant, Shane Watson, who is seated in the courtroom[,] was the man who [she] observed doing the shooting that night,” she responded “[y]es” (T 575–76).
Ms. Holloway's steadfast and unequivocal identification was supported by the precision with which she recounted the events of October 9, 1991. Mr. Markstein nevertheless challenged her on whether she would admit having made a mistake:
Mr. Markstein: Miss Holloway, are you the type of person who if you had made a mistake would come here and admit it?
Ms. Holloway: Yes.
Mr. Markstein: Even if it meant being embarrassed by it?
Ms. Holloway: Yes.
Mr. Markstein: And you would come here today and tell us that if you weren't sure back then you would tell us that today with all that's gone on?
Ms. Holloway: Yes.(T 615–16).
Ms. Holloway's trial testimony was also corroborated by both eyewitness testimony and physical evidence. Both Monique and Robin James heard gunshots from inside their first floor apartment. Monique observed a black male, medium build, dressed in black, and wearing a hat underneath a hood, running in the direction of 1981–1985 Schieffelin Avenue, and saw a person lying on the ground. Robin observed a male wearing a black, hooded sweatshirt and black pants, chasing and shooting another male who then fell to the ground. Furthermore, both Monique and Robin separately identified the defendant in a photo array. Significantly, the medical examiner's report documenting the deceased's injuries corroborated the accounts provided by Ms. Holloway and the James sisters.
Given the conviction with which Ms. Holloway testified at trial, the ubiquitous question is why, after nearly twenty years, she is not merely unsure that the shooter she observed was the defendant but unequivocally certain he was not:
Mr. Yacoub: isn't it true, ma‘am, at trial you were asked, [”]were you able to see that individual's face,[”] and your answer was yes?
Ms. Holloway: Yes.
Mr. Yacoub: That was truthful, right?
Ms. Holloway: No, that wasn't truthful.
Mr. Yacoub: But didn't you just testify that when you testified at trial, you were telling the truth?
Ms. Holloway: At the time I thought it was the truth. Like I said, when they showed me the guy's picture, he became that guy for me ... I don't know how to explain it any better to you.
Mr. Yacoub: Is it your testimony you don't really know for sure, now, if that was the guy?
Ms. Holloway: I know for sure now that wasn't the guy.
Mr. Yacoub: You know for sure now that wasn't the guy. Is this because this is what people are telling you now?
Ms. Holloway: No, because I know for sure I didn't see his face.Mr. Yacoub: I just talked to you
Ms. Holloway: But you're not speaking English I understand, I guess.
Mr. Yacoub: I'm going to try again.
Ms. Holloway: Bring it down a little.
...
Mr. Yacoub: When you testified at trial before the judge, and you testified that you saw the man's face
Ms. Holloway: Yes.
Mr. Yacoub: Were you being honest?
Ms. Holloway: No.
Mr. Yacoub: So, you lied at trial, is that your testimony here today?
Ms. Holloway: Yes.
Mr. Yacoub: You did. So, you lied when you said you looked at his face and you saw his face in front of your car?
Ms. Holloway: I didn't see his face.
Mr. Yacoub: You didn't see his face?
Ms. Holloway: No, I didn't see his face.
...
Mr. Yacoub: As you're sitting here now, you're telling me when you testified at trial in 1991, that you saw his face as he walked in front of your car, you were lying?
Ms. Holloway: Yes.
Mr. Yacoub: Now, you were asked the same exact question in January?
Ms. Holloway: In January, and in January I lied again.
Mr. Yacoub: ... [B]ack in January, you said something different, right?
Ms. Holloway: Yes.
Mr. Yacoub: You said that you actually did see his face?
Ms. Holloway: Yes.
Mr. Yacoub: ... You actually said that he looked your way?
Ms. Holloway: Okay.
Mr. Yacoub: At trial, right?
Ms. Holloway: Okay.
Mr. Yacoub: What does okay mean, ma‘am?
Ms. Holloway: You're saying that I actually said that, so I'm saying okay.
Mr. Yacoub: I'm not asking if you're okay with it. I'm asking if that's your testimony.
...
Mr. Yacoub: ... When you testified at trial, again, you lied under oath?
Ms. Holloway: Yes.
Mr. Yacoub: Yet you consider yourself to be an honest person?
Ms. Holloway: Yes.
...
Mr. Yacoub: At the trial, and in January, you also testified that you saw his face when he looked your way, right?
Ms. Holloway: Yes.
Mr. Yacoub: That you were able to see his whole body when he walked past you, right?
Ms. Holloway: Yes.
Mr. Yacoub: That you saw the shooter wearing the same clothes as the guy who was walking by you, right?
Ms. Holloway: Yes.
Mr. Yacoub: And, to you, that was the same guy, right?
Ms. Holloway: Yes.
Mr. Yacoub: And that was Shane Watson, who you identified, right?
Ms. Holloway: Yes.
Mr. Yacoub: And it was the same person to you, the person who walked in front of your car, and the person you saw shooting, right?
Ms. Holloway: Yes.
Mr. Yacoub: And you testified that you identified him in a photo array, right?
Ms. Holloway: Yes.
Mr. Yacoub: You were even cross-examined about the identification procedure and the cops and the way that they were talking to you while you were on the stand at the trial ... right?
Ms. Holloway: Yes.
Mr. Yacoub: And you told the truth?
Ms. Holloway: Yes.
Mr. Yacoub: As you believed it, right?
Ms. Holloway: Yes.
Mr. Yacoub: Those were your words, right, ma‘am?
Ms. Holloway: Yes (H 107–115).
Ms. Holloway's recent certainty that the defendant was not the shooter is itself perplexing. Claiming, however, that she has “a better memory of what happened that night than I did in 1991” is patently unbelievable (H 88, 110). It is also irreconcilable with her testimony that she “never, ever ... brought anything about this case up to anyone” because for eighteen years “life went on” and she “didn't think about it” until speaking with defense investigators (H 69–70, 72, 80, 83, 89–90, 10, 108, 115). It is, of course, understandable that over time a person's memory will deteriorate such that what was certain then is in doubt today. It is an entirely different matter, however, for it to cause a person to become more certain of the reciprocal, especially without giving it any thought for eighteen years. A memory can do many things with the passage of time; improving is not one of them. To claim otherwise is absurd.
Perhaps it is precisely such irrationality that explains why Ms. Holloway's hearing testimony was otherwise equivocal and evasive. It may also account for her sarcastic, and at times combative, demeanor when challenged (e.g., “I don't know how to explain it any better to you,” “But you're not speaking English I understand, I guess,” and “Bring it down a little”). And when directly confronted, Ms. Holloway, visibly exasperated with the assistant district attorney, dogmatically stated “Let me tell you ... I said exactly what happened at the trial. Like I said, it started to bother me ... [and] finally I get to realize, I never seen him. Everything else I'll agree to, but I never seen him” (H 83). This demeanor stands in stark contrast to her demeanor in 1991 when speaking with detectives and Assistant District Attorney Brian Sullivan as well testifying at the 1993 trial. In fact, during her 2013 interview with the District Attorney's Office, Ms. Holloway's demeanor was “normal” as noted by stenographer Natalie Perez who stated, “I think she was just trying to remember the facts. It was such a long time ago, so she would answer and then a thought would probably pop into her mind, a memory, then she would just continue to answer the question” (H 63, 386–89).
Such an objective perception also critically undermines Ms. Holloway's feigned claim of prosecutorial intimidation during that interview. Contrary to her assertion that she was outnumbered by five or six people from the District Attorney's Office in addition to the stenographer, only two assistant district attorneys were in the statement room and one via teleconference (H 62–63, 66–67, 88, 113, 120, 380, 385–86, 399). According to Ms Holloway, when presented with the very same photo array from which she identified the defendant years earlier, she “had to take a breath, so [she] wouldn't say what was going to come out of [her] mouth ...” To her, the assistant district attorney was “aggressive ... like letting me know that whatever [defense] told me was ka-ka and what she is telling me is the real deal” (H 122). Notably, though, Ms. Holloway, a former corrections officer, boasted that she was not “particularly scared of anyone.” If so, it belies that she “was afraid to just tell them how I felt ... [,] to voice my opinion—how I feel now. Like I was afraid to tell them I don't think that he was the guy” (H 88, 120–21).
As the People document in their post-hearing memorandum, the record is replete with Ms. Holloway's inability to provide any rational explanation for her prior inconsistent statements. Succinctly synthesized, the litany of irregularities and inconsistencies coupled with the dearth of profundities focus on two things: her revelation that she never saw the person she actually observed, and her fabrication that detectives fed her the necessary information to support her identification of the defendant as the shooter. It is inconceivable, however, to reconcile blaming the police for showing her the defendant's picture and suggesting she “keep the story going ... to continue with the same story she always told” even though she “knew that wasn't true” (H 54, 65, 104–05, 107, 109, 113) with her only beginning “to doubt things” after being approached by defense investigators (H 59, 81). Similarly, this court cannot accept that she first realized the defendant was not the person she had observed after a “six-month therapeutic path of self-realization” while simultaneously believing that she had “long been haunted and disturbed about what happened at the trial” (affidavit of Christine Holloway, 19). Put in this context, her recent assertion that she “always knew there was something wrong with the photo arrays [s]ince the night I looked at it” is astonishing (H 94, 97, 118).
Even the circumstances under which Ms. Holloway cooperated with defense investigators lack clarity and credibility. In her 2013 interview with the District Attorney's Office, Ms. Holloway acknowledged that the “smooth talk [ing]” Georgia defense investigator attesting to the defendant's innocence made her feel like she “had to comply” (S 70–71, 73, 75, 79, 81). By Ms. Holloway's own admission, it was “scary after a while” (S 61–62, 73–75, 77, 113, 121). Unable to provide a coherent explanation that such pressure and intimidation did not factor in her signing the recantation affidavit, Ms. Holloway defiantly denied having made those statements despite being confronted with the stenographically transcribed record of it. Ms. Holloway then grew impatient and sarcastically stated, “January. We're going to bring that up again” (H 101). As such, Ms. Holloway's assertion that she did not feel intimidated by the defense investigators, and only signed the affidavit because it was the truth can hardly be taken seriously let alone believed.
Finally, and perhaps most disturbing, was Ms. Holloway's willingness to boldly notify the world that she perpetrated having knowingly “lied at trial” and “in January ... again” by identifying the defendant even though she “knew that wasn't true.” Notwithstanding that such testimony is baffling given that at trial she testified to having observed the defendant's face with her vehicle headlights (H 54, 104–05, 107, 109, 113, 114), it is nothing short of contemptuous if true. That she would not give it a thought for twenty years until approached by defense investigators is unconscionable. Worse is that if what she said at trial was the truth, which this court believes, she ostensibly became convinced to peddle a concocted story after having been pressured to do so by defense investigators, and an encounter with defendant's family.
In view of the evidence presented, Ms. Holloway's recantation fails to satisfy the relevant Shilitano factors. Specifically, its inherent inconsistency, her elusive and combative hearing demeanor as distinguished from her forthright and convincing trial testimony, and the existence of both corroborating eyewitness testimony and physical evidence compel this court to reject her recantation. Being unable to meaningfully refute Ms. Holloway's credible trial testimony, defendant has failed to prove by a preponderance of the evidence that there is a reasonable probability her recantation would result in an acquittal.
V. Ineffective Assistance of Counsel
Defendant's ineffective assistance of counsel claim is equally unpersuasive. Under the Sixth Amendment of the United States Constitution, a claim of ineffective assistance of counsel is evaluated under the two-part test set forth in (Strickland v. Washington, 466 U.S. 668 [1984] ). To prevail, a defendant must (1) show that his counsel's performance fell below an “objective standard of reasonableness” judged by “prevailing professional norms” (the performance prong), and (2) “affirmatively prove prejudice” by demonstrating that, but for counsel's unprofessional errors, the result of the proceeding would have been different (the prejudice prong) (Strickland, 466 U.S. at 687–88, 693).
To establish that counsel's performance was deficient, a defendant must show that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance” (Pavel v. Hollins, 261 F3d 210, 216 [2d Cir2001] ). This standard is “rigorous” (Lindstadt v. Keane, 239 F3d 191, 199 [2d Cir2001] ), and “highly demanding” (Kimmel v. Morrison, 477 U.S. 365, 382 [1986] ). To demonstrate prejudice, a defendant must show there is a “reasonable probability” that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Missouri v. Frye, 132 S Ct 1399 [2012];Lafler v. Cooper, 132 S Ct 1376 [2012];Premo v. Moore, 131 S Ct 733 [2011];Padilla v. Kentucky, 559 U.S. 356 [2010];Roe v. Flores–Ortega, 528 U.S. 470 [2000];Lockhart v. Fretwell, 506 U.S. 364 [1993];Hill v. Lockhart, 474 U.S. 52 [1985];Strickland at 694–695).
Under article I, § 6 of the New York State Constitution, success of an ineffective assistance of counsel claim rests on whether “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation' “ (People v.. Henry, 95 N.Y.2d 563, 565 [2000], quoting People v. Baldi, 54 N.Y.2d 137, 146–47 [1981]; see also People v. Lane, 60 N.Y.2d 748, 750 [1983] ). Accordingly, counsel's acts or omissions must have been so egregious and prejudicial that it deprived him of a fair trial (People v. Benevento, 91 N.Y.2d 708, 713 [1998]; see also People v. Hobot, 84 N.Y.2d 1021, 1022 [1995];People v. Flores, 84 N.Y.2d 184, 188–89 [1994] ). Defendant need not, however, prove that the outcome of the case would have been different but for such errors. Rather, a defendant need only establish that he did not receive meaningful representation (Baldi, 54 N.Y.2d at 147;see Caban, 5 NY3d 143, 155–56 [2005] ). To be clear, meaningful representation does not mean preferred or perfect representation (Benevento, 91 N.Y.2d at 712;People v. Modica, 64 N.Y.2d 828 [1985];Baldi at 146).
Regarding prejudice, where defendant's ineffective assistance claim is based “solely on federal constitutional law,” New York courts rely on the Strickland standard (People v. McDonald, 1 NY3d 109, 114 [2003] ). In such circumstances, “[t]he sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information” (McDonald, 1 NY3d at 115). However, claims brought exclusively under the New York State Constitution are evaluated under Baldi (Baldi at 137). Initially, it may appear that the New York Baldi standard neglects the prejudice requirement of the federal Strickland standard. While it is true that New York law does not require a defendant to fully satisfy the prejudice test (Caban, 5 NY3d at 152;People v. Stultz, 2 NY3d 277, 284 [2004] ), both require a defendant to establish that his attorney's performance “fell below an objective standard of reasonableness” (Rosario v. Ercole, 601 F3d 118, 124 [2d Cir2010] ). New York simply examines “prejudice' ... more generally in the context of whether defendant received meaningful representation” (Benevento, 91 N.Y.2d at 713); the federal standard assesses the advice's effect on “the result of the proceedings” (Strickland, 466 U.S. at 695).
Consistent with this notion, it is irrelevant whether the attorney's advice had a particular impact on the outcome of the case (Caban at 156). Rather, New York is “ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” (Benevento, 91 N.Y.2d at 714). Indeed, if there is an apparent contradiction, it is this: “[f]undamental fairness analysis by its nature must always encompass prejudice” such that under the New York standard the “prejudice” prong in Strickland is effectively redundant (Rosario, 601 F3d at 125). Regardless, the former, by its nature, encompasses the latter (see Rosario at 118). Ultimately,
“[t]he intellectually disciplined dispositional path of this case must not veer from this Court's long-standing, well-settled ineffective assistance of counsel analysis and authorities ... when reviewing a claim of ineffective assistance of counsel, care should be taken to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis' “ (Flores, 84 N.Y.2d at 186, quoting Baldi, 54 N.Y.2d at 146).
Finally, since the performance and prejudice elements set forth in Strickland may be addressed in either order, “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... [I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed” (Strickland, 466 U.S. at 697). As such, this court will address the prejudice aspect of defendant's claim before considering counsel's performance.
Prejudice
1. Federal Standard
Defendant contends that Mr. Markstein's cross examination of Monique and Robin James on their photo array and lineup identification of the defendant effectively “turn[ed] a one-witness identification case into a three-witness case.” He further faults Mr. Markstein for failing to subpoena Diana Almonte to testify. However, to succeed the defendant must “affirmatively prove prejudice” by establishing a “reasonable probability” that, but for such allegedly deficient conduct, the result of the proceeding would have been different (Strickland, 466 U.S. at 693;Lafler, 132 S Ct at 1384–85).
With respect to defendant's claim that Mr. Markstein turned a one-witness identification into three-witness case, this court agrees that he indeed opened the door by eliciting identification testimony from Monique and Robin James. But doing so merely authorized the prosecution to explore the circumstances surrounding their selection of the defendant in both the photo array and lineup proceedings. It did not, however, result in either witness identifying the defendant in court. Indeed, the defendant makes no such claim, and nothing in the hearing record suggests otherwise. Whatever can be said about the efficacy of eliciting such testimony, nothing before this court remotely suggests there is a reasonable probability the defendant would have been acquitted in its absence. At most, it generates the mere speculative possibility of an acquittal. This is particularly true where Ms. Holloway's trial testimony was clear, detailed, and compelling. Finally, this court notes that aside from their photo array and lineup identification, the remainder of their testimony corroborated Ms. Holloway's observations. As such, the strength of the evidence supporting her identification of the defendant makes it unlikely that the testimony Mr. Markstein evinced had any impact on the jury's finding of guilt, let alone a reasonable probability to have changed the outcome.
Similarly, this court finds defendant's claim that he was prejudiced by Mr. Markstein's failure to locate and subpoena Diana Almonte prejudiced him baseless. Mr. Markstein testified that the investigator he hired was “pretty effective” in locating several potentially favorably witnesses (H 262). While Mr. Markstein was unable to recall specifics, he adamantly stated, “Whether it was making phone calls, going to the location where she was last known to reside, [or] speaking with people who might have known her,” numerous unsuccessful attempts were made to locate Ms. Almonte (H 239, 263, 276). True, Mr. Markstein never sought a judicially ordered subpoena for her but as he explained, it was because the investigator was unable to find her. According to him, Ms. Almonte “was an elusive person” whom he “suspect[ed] ... might have gone underground” (H 239–40, 276). It is unpersuasive that he was prejudiced by counsel's failure to call Ms. Almonte when she could not be located.
Nevertheless, assuming Ms. Almonte had been called to testify at trial, the question remains whether there is a reasonable probability her testimony would have resulted in the defendant's acquittal. By Mr. Markstein's admission, she was at most a potential witness because the description of the perpetrator she allegedly provided to detectives was inconsistent with Mr. Watson's (H 262–63). At the hearing, however, Ms. Almonte stated she told detectives that she was unable to see the perpetrator's face, determine his race or provide a description of him. All Ms. Almonte would have contributed is that she observed a man wearing a dark or black hoodie with the hood strings pulled tightly around his head such that it concealed his face. Other than perhaps corroborating portions of other witnesses' testimony, Ms. Almonte speculated that the defendant “could have been the shooter” (H 162–3). It is inconceivable how such speculation would have changed the outcome. Accordingly, the defendant fails to establish that but for counsel's perceived errors the result of the proceeding would have been different.
2. New York Standard
As indicated, New York, unlike Strickland, relies on the “meaningful representation” standard (Henry, 95 NY3d 143; Baldi, 54 N.Y.2d 137). Under this standard, a defendant must establish that given the totality of the circumstances counsel's conduct was so egregious that it deprived him of a fair trial (Benevento, 91 N.Y.2d 708, 713;see also Hobot, 84 N.Y.2d 1021, 1022];People v. Flores, 84 N.Y.2d 184, 188–189). A defendant need not, however, prove that the result would have been different but for counsel's allegedly deficient conduct (Baldi at 137; see Caban, 5 NY3d at 155–56). Under the same analysis, the defendant fails to establish that given the totality of the circumstances counsel's conduct was so egregious it deprived defendant of a fair trial. As noted, this court rejects defendant's argument that the identification testimony Mr. Markstein elicited and his alleged failure to call Ms. Almonte compromised the fairness of the process as a whole. It did not.
Performance
Having failed to demonstrate prejudice, this court need not determine whether counsel's performance fell below an “objective standard of reasonableness” (Strickland, 466 U.S. at 697–98;see Benevento, 91 N.Y.2d 708 [1998] ). Nevertheless, this court believes it appropriate and wise to do so. In considering defendant's claim under both the Baldi–Benevento and Strickland performance standards, it is crucial to distinguish between “true ineffectiveness with mere losing tactics” and “according undue significance to retrospective analysis” (Baldi, 54 N.Y.2d at 147). To prevail on a claim of ineffective assistance, a defendant must demonstrate that he was “deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice” (Flores, 84 N.Y.2d at 187).
Meaningful representation means “the absence of strategic or other legitimate explanations for counsel's” alleged failures (People v. Rivera, 71 N.Y.2d 705, 709 [1988] ) based on “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation” (Baldi, 54 N.Y.2d at 146–47; see also Henry, 95 N.Y.2d at 565;Lane, 60 N.Y.2d at 750). It does not, as noted above, mean preferred or perfect representation (Benevento, 91 N.Y.2d at 712;Modica, 64 N.Y.2d at 828;Baldi at 137). Thus, an unsuccessful strategy is not ineffective provided it reflected “an objectively reasonable and legitimate trial strategy under the circumstances and evidence presented” (People v. Berroa, 99 N.Y.2d 134, 138 [2002] ). As such, once it is established that counsel's trial strategy was reasonable and legitimate, a court may not “Monday morning quarterback” the efficacy of that strategy or associated decisions and tactics (People v. Satterfield, 66 N.Y.2d 796, 799–800 [1985] ). Moreover, absent a showing that counsel's representation was less than meaningful, an attorney will be presumed competent in exercising professional judgment (Rivera, 71 N.Y.2d at 709).
Here, there is no doubt Mr. Markstein boldly employed an identification defense as the trial strategy. Frankly, that alone ends the inquiry. As noted, Mr. Markstein did not believe Ms. Holloway's identification of the defendant was strong. According to him, Ms. Holloway's momentary glance at an individual with a hoodie covering his head was relatively weak. He further believed that Monique and Robin James' ability to identify the defendant from inside their apartment, late at night, and from a considerable distance lacked credibility. Mr. Markstein testified that he discussed this defense strategy with the defendant, who agreed that attacking the credibility of the witnesses on this issue was indeed the best strategy (H 224–25, 227):
Our strategy was essentially to attack the credibility and reliability of the eyewitnesses. We felt and I felt and he agreed that the momentary view of him supposedly or of the perpetrator in front of a car by the key witness was not a particularly strong case. There was no other physical evidence. The two sisters who were in an apartment further away were also unreliable. We felt attacking their credibility was more than sufficient to undermine the case and to create a reasonable doubt (H 244–5).
Of course, Mr. Markstein did not simply pull this strategy out of Merlin's Magic Hat; rather, it was based upon his years as a criminal defense practitioner that included approximately fifteen trials, a number which involved identification issues in shooting cases. As he explained,
My impression of [Monique and Robin James] was that both of them were extremely weak willed, and not particularly bright, frankly. And I thought that they might have been coerced. And, so, they came in and alleged that from a far away distance from a corner apartment, late at night, they could see things that they claimed to have been able to see (H 259).
If this alone does not satisfy the “objectively reasonable and legitimate” standard of meaningful representation, Mr. Markstein further explained precisely why he decided to cross examine them on selecting the defendant in the photo array:
I thought—it seemed to me as though, again, they had been coached and coerced ... It seemed to make sense to me to attack the manner in which Mr. Watson may have been suggested to them. And I recall that [in] the photo array that had been produced by Detective Jones ... Mr. Watson's ... front and profile pictures were in the same position in the two arrays, which is highly unusual ... and I believe they were—he may have been in the first position in both arrays, which was highly unusual. And it would have lent itself to possible suggestion to the James girls if the photo arrays were shown that way. And, so it seemed obvious if they were shown suggestive photo arrays, which would then result in them essentially being told who to pick, that then the step thereafter, following that up with a positive lineup, would have been a natural consequence. And that, in turn, would have naturally led to my client being identified in court. So it seemed to me that makes sense as a strategy (H 259–60).
Mr. Markstein's clear, specific, and credible explanation regarding his trial strategy constrains any discussion about whether having elicited photo array testimony “turn[ed] a one-witness identification case into a three-witness case.” In any event, having such a discussion would amount to nothing more than a futile attempt to second-guess his decision.
This court will never know the specific attempts made to locate Ms. Almonte, but it hardly matters. As noted above, Ms. Almonte was unable to see the shooter's face. It is, therefore, reasonable to presume that aside from having some corroborative effect, her testimony would have carried little weight. More significantly, Mr. Markstein located two other witnesses: Ms. Holloway's neighbor, Ms. Martine, who testified Ms. Holloway told her the police had instructed her on what to say because she did not see anything, and another an individual who knew the defendant to walk with a distinctive limp. Mr. Markstein reasoned if this individual could testify to such details it would undermine the witnesses' identification of the defendant since none of them had observed anything unusual with the manner in which the defendant walks. But as Mr. Markstein stated, “Apparently, that testimony was rejected by the jury ... but I did give that witness ... and I thought that was an extremely strong way to undermine the credibility of the eyewitness (H 261–62).
Finally, lest there be any remaining confusion over Mr. Markstein's choice of defense strategies, he emphatically rejected using an alibi. Having heard the story that the defendant was home with his girlfriend watching television is perhaps the most unreliable defense because he “had heard that explanation from so many clients in the past, and the fact that it was coming from my client and his alibi witness was going to be his wife didn't ring particularly true to me.” Mr. Markstein explained that such close family witnesses are “obviously going to be viewed as an interested motivated witness to lie ... [and][t]he fact that we were going to raise ... another series of issues ... for the DA to attack when we were really focusing on the identification ... [is what] went into a decision at some point not to go with an alibi” (H 246–47). Clearly, then, Mr. Markstein gave the available options substantial consideration, selected the one he believed would afford the defendant the greatest opportunity to succeed, and discarded the others.
In sum, nearly twenty years after discussing and agreeing with Mr. Markstein's identification defense strategy, the defendant faults Mr. Markstein for implementing it. To the extent that Mr. Markstein opened the proverbial identification door, it is significant that he did not ask either Monique or Robin James to identify the defendant in court. Although it is peculiar that Mr. Markstein could not recall whether they identified him on direct examination, the fact is that Mr. Markstein's entire strategy was rooted in striking the core of the People's case: the defendant's identification. To accomplish that, he explored the credibility of their out of court identification. Whatever opinions this court may have about the efficacy of such tactics are irrelevant. Nor is it relevant whether he intentionally or inadvertently opened that door. Rather, all this court must decide is whether it was a legitimate strategy. Given that it squarely fit with his identification defense, and was part of his plan to attack the witnesses' credibility on that issue, there no question it was an objectively reasonable strategy (Strickland, 466 U.S. at 687–88, 693). Understandably, the defendant is unhappy it was unsuccessful. But mere discontent is by no stretch of the imagination equivalent to an absence of meaningful representation (Henry, 95 N.Y.2d at 565;Lane, 60 N.Y.2d at 750 Baldi; 54 N.Y.2d at 146–47). It cannot be said, therefore, that the defendant was deprived of a fair trial (Benevento, 91 N.Y.2d at 713;Hobot, 84 N.Y.2d at 1022;Flores, 84 N.Y.2d at 187).
VI. Conclusion
Therefore, for the reasons stated above, defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law 440.10(1)(c)(f)(g)(h) is denied in its entirety.
This constitutes the decision and order of the court.