Opinion
3874/09
06-02-2015
The People of the State of New York v. Michael Almeda, Defendant.
Appearing on behalf of the defendant: Richard M. Greenberg, Esq. Office of the Appellate Defender 11 Park Place Suite 1601 NY, NY 10007 Theresa Lee, Esq. Zuckerman Spaeder LLP 1185 Avenue of the Americas 31st Floor NY, NY 10036 Megan Quattlebaum, Esq. Visiting Lecture in Law Yale Law School P.O. Box 208215 New Haven, CT 06520 Appearing on behalf of the People: Mao Yu Lin, Assistant District Attorney Office of the District Attorney, New York County 1 Hogan Place NY, NY 10013
Appearing on behalf of the defendant:
Richard M. Greenberg, Esq.
Office of the Appellate Defender
11 Park Place
Suite 1601
NY, NY 10007
Theresa Lee, Esq.
Zuckerman Spaeder LLP
1185 Avenue of the Americas
31st Floor
NY, NY 10036
Megan Quattlebaum, Esq.
Visiting Lecture in Law
Yale Law School
P.O. Box 208215
New Haven, CT 06520
Appearing on behalf of the People:
Mao Yu Lin, Assistant District Attorney
Office of the District Attorney, New York County
1 Hogan Place
NY, NY 10013
Jill Konviser, J.
Procedural History
By Indictment Number 3874/09, the defendant was charged with Attempted Murder in the Second Degree, Attempted Assault in the First Degree, Reckless Endangerment in the First Degree, Criminal Possession of a Weapon in the Second Degree (intent to use unlawfully), and Criminal Possession of a Weapon in the Second Degree (outside home or place of business). On July 12, 2011, the case proceeded to jury trial before the Honorable Lewis Bart Stone. At the close of the evidence, the trial court granted the defendant's motion to dismiss the top count of Attempted Murder in the Second Degree. The jury, after deliberating for three days, indicated that it had reached a partial verdict, finding the defendant guilty of Criminal Possession of a Weapon in the Second Degree (outside home or place of business). In light of the guilty verdict with respect to that charge, the People dismissed the remainder of the charges for which the jury had not yet reached a verdict. On December 21, 2011, the defendant was sentenced to a determinate term of imprisonment of twelve years, to be followed by five years of post release supervision.
Justice Stone has since retired.
In August of 2013, the Office of the Appellate Defender (hereinafter "OAD") filed the instant motion to vacate the judgment of conviction pursuant to Criminal Procedure Law Section 440.10 on the grounds of new evidence and actual innocence. With respect to the new evidence claim, the defendant's argument is based on the conclusions reached by an individual retained by OAD to enhance a video surveillance recording that was introduced by the People at trial, of the defendant running from the scene of the shooting with an object in his left hand; an object that the People argued at trial was a gun. The individual retained by OAD concluded that the object in the defendant's left hand is not a gun, but rather, a beverage can. The defendant contends that the judgment of conviction must be vacated as the enhanced video surveillance recording constitutes new "exculpatory" evidence.
According to that individual's resume, appended to the defendant's motion, he is the President and Chief Engineer of The Legal Services Group, and provides "expert forensic testimony and evidentiary support" on topics including, inter alia, "the forensic examination, analysis and enhancement of . . . surveillance video tapes and their recording devices."
That individual also concluded that the defendant's right hand is empty.
The defendant also moves to vacate the judgment of conviction as, he contends, he is actually innocent of the offense for which he was convicted — Criminal Possession of a Weapon in the Second Degree. In support of his argument, the defendant points to the same enhanced video surveillance recording that he argues is new evidence. Specifically, the defendant argues that the enhanced video surveillance recording, in which he is carrying "a beverage," and not a gun, demonstrates that he "simply could not have been holding an operable firearm at the moment the crucial eyewitness, William Wade, claims to have seen him discharge his weapon." Defendant's Motion at 18.
The People oppose the defendant's motion to vacate the judgment of conviction based on new evidence, as, they argue, the enhanced video surveillance recording does not constitute new evidence, and would not change the result at trial, even if it did constitute new evidence. The People also oppose the motion to vacate the judgment of conviction on the basis of actual innocence, as, they contend, the enhanced video surveillance recording does not cast doubt on the jury's verdict.
As this Court did not preside over the jury trial, and the issues raised are highly fact-specific, the Court reviewed the defendant's motion, the People's affirmation in opposition, and the defendant's reply, as well as the entirety of the trial transcript. The Court also heard oral argument from the parties on January 14, 2015, and again on March 31, 2015. Notably, during oral argument, the People conceded, after having reviewed the enhanced video surveillance recording, that the object in the defendant's left hand is not a gun. Proceedings, January 14, 2015 at 47-48. Notwithstanding, the People continue to oppose the defendant's motion to vacate the judgment of conviction.
Factual HistoryTo understand the Court's ruling in this matter, a brief recitation of the facts adduced at trial is necessary. On July 28, 2009, at approximately 9:30 p.m., the defendant and a separately charged individual fired multiple gunshots in front of 107 West 109th Street in Manhattan. In their opening statement, the People indicated to the jury that the defendant was a drug dealer who was protecting his turf by engaging in that "shootout" on July 28, 2009. The People told the jury, inter alia, that they would see a video surveillance recording showing the defendant, moments after the shooting, running away from the scene with an "object in his hand," and that the jury would conclude that that object was a gun. The defendant presented an opening statement, arguing to the jury that while he was at the scene of the shooting, he, like many others, was "running for his life," rather than playing a part in the shooting.
The People called numerous witnesses to the stand, including two civilian witnesses — William Wade and Brooke Meyers — who testified that they saw the defendant in possession of a gun on the night of the shooting. Wade, a community activist who was acquainted with the defendant, testified that he observed the defendant shooting a gun, and could see "light" coming from the gun each time that the defendant fired it. Meyers, an addict who frequently used drugs with the defendant, testified that after hearing gunshots, she observed the defendant running with a black gun in his right hand. Yet, the case detective testified that the defendant was on video — the subject of the instant motion — fleeing the scene of the shooting holding an object in his left hand. The defendant was arrested at his home the following day pursuant to information provided to investigators by the eyewitnesses. When interviewed by detectives, the defendant admitted that he had possessed a "pistol" on the night of the shooting, but denied any involvement in the shooting, explaining that he was the target.
Wade did not specify with which hand the defendant fired the gun.
The defendant objected to the People's next question — "[w]hat do you think [] was [in his left hand]" — and the trial court sustained the objection.
The People also introduced at trial, recordings of telephone conversations the defendant had while incarcerated. On the recordings, the defendant can be heard directing an individual to climb into his bedroom window at night when the police were not watching, to get his "X box game." In another conversation, the defendant, after being told that his cohort "got the box out of the house," says that after the next court date, he should be "out," as the "box" was "the only thing they needed." Additionally, the People introduced the clothing that the defendant was wearing at the time of his arrest — the same clothing he could be seen wearing on the video surveillance recording as he fled the scene of the shooting.
In summation, the defendant continued to maintain that he was not involved in the shooting and that he was but an innocent bystander. He argued that the People's witnesses were mistaken about what they saw the night of the shooting, particularly Brooke Meyers, who testified that she observed a black gun in the defendant's right hand. Indeed, Meyers had to be mistaken, the defendant argued, as the video surveillance recording showed an object in his left hand, not his right hand. The defendant played the video surveillance recording for the jury and argued that although he appeared to be holding something in his left hand, that object was "not a black gun." Instead, the defendant urged the jury to conclude that the object was not the "handgrip of a pistol," but a "bottle" or "something" "from the store."
In summation, the People argued that while the video surveillance recording was not entirely clear, it corroborated the testimony of the eyewitnesses, in that it showed the defendant running with a gun in his hand. The People, in describing the video surveillance recording of the defendant running from the scene of the shooting, argued that the defendant's mannerisms were "the mannerisms of someone who is emboldened by having a weapon in his hand." Finally, the People argued that the recorded telephone calls established that the defendant was trying to get the gun, that he had possessed and used, out of his apartment, so that the police would be unable to perform any testing on the gun.
Although identification was an issue at trial, that the defendant is the person running in the video is not disputed in the instant motion.
At trial, neither the People nor the defendant ever referred to the defendant's right hand.
A search warrant was executed at the defendant's apartment following his arrest, but no gun was found.
New Evidence
The defendant moves to vacate the judgment of conviction pursuant to C.P.L. § 440.10, as, he argues, the recently enhanced video surveillance recording constitutes new evidence. To be more precise, the new evidence is the enhanced video surveillance recording taken together with the conclusions of an individual hired by the defendant to enhance that recording, that the defendant is running from the scene of the shooting not with a gun in his left hand, but rather, a beverage can. What is more, that individual also concluded that the defendant's right hand is empty. The defendant argues, therefore, that had that evidence been introduced at trial, a reasonable probability exists that the jury's verdict would have been different. In other words, the People would be unable to argue to the jury, as they repeatedly did at trial, that the object in the defendant's hand is a gun. Without powerful arguments relying on visual evidence of his gun possession — evidence that has since been invalidated — the defendant concludes the jury would have acquitted him of Criminal Possession of a Weapon in the Second Degree. On the other hand, the People, notably conceding that the enhanced video recording conclusively demonstrates that the defendant does not have a gun in his left hand, nevertheless, maintain that the enhanced video does not constitute new evidence, as it fails to satisfy the six criteria enumerated in People v. Salemi, 309 NY 208 (1955), and its progeny. More fundamentally, the People contend that the verdict would remain unchanged even if the enhanced video surveillance recording was introduced into evidence at a second trial, as the video does not foreclose the possibility that the defendant could have perhaps had a gun in his right hand (beverage can left, gun right). The People, however, simply never advanced that theory at trial. So, while this Court agrees with the People that the newly enhanced video surveillance recording does not precisely constitute new evidence, the Court's analysis surely must not end there — fundamental fairness demands further scrutiny. The Court is deeply troubled by the frequency and manner in which the People highlighted the video surveillance recording and urged the jury to conclude that the defendant had a gun in his left hand, a theory that the People now concede was erroneous. As it is impossible to know to what extent the People's professed theory influenced the jury's determination of the defendant's guilt, the Court can only conclude that the defendant was denied a fair trial — his constitutional rights violated. Indeed, had the newly enhanced video surveillance recording been introduced at trial, foreclosing the People's argument that the defendant was running with a gun in his left hand, a verdict more favorable to the defendant was more than a mere possibility. Based, therefore, on the arguments advanced by the People at trial — arguments that no longer comport with the People's evidence — the defendant was deprived of a fair trial, and is, therefore, entitled to a new one.
This Court has reviewed both the original surveillance recording and the enhanced video surveillance recording and the still photographs taken from them. While the videos and photographs are somewhat distorted, there does not appear to be anything in the defendant's right hand.
At trial, the People repeatedly pressed the jury to conclude that the video surveillance recording showed the defendant running with a gun in his hand. In fact, that was the People's theory from the very outset of the case. In their opening statement, the People informed the jury, inter alia, that they would see a video surveillance recording showing the defendant "running with an object in his hand," and urged the jury to conclude that the object was a gun. Then, during direct examination of the case detective, the People inquired what drew the detective's attention to a particular portion of that video surveillance recording. The detective responded, "[i]t appears the individual is holding something in his left hand." Proceedings, July 19, 2011 at 353. Although the People's next question — "[w]hat do you think it was?" — was sustained by the trial court, the question itself underscores the People's unequivocal position at trial — that the unidentifiable object in the defendant's left hand was a gun. Finally, in summation, the People argued to the jury that the defendant's mannerisms on the video surveillance recording were the mannerisms of someone "emboldened by having a weapon in his hand."
It is obvious that the People's theory at trial was that the defendant held the gun in his left hand. Indeed, when the case detective testified that he believed the defendant was holding an object in his left hand, the People made no effort to correct his testimony. Moreover, the People never once directed the jury's attention to the defendant's right hand. In fact, the People made no mention of the defendant's right hand at all. Perhaps more significantly, in his summation, defense counsel focused the jury's attention on the defendant's left hand, arguing that the object in the defendant's left hand was a bottle, not a gun. Additionally, defense counsel reminded the jury that Brooke Meyers had testified that she saw a gun in the defendant's right hand, but the video surveillance recording clearly showed an object in the defendant's left hand. In other words, Meyers had to have been mistaken as the People's evidence — the video surveillance recording — clearly demonstrated that the defendant held an object in his left hand. Quite simply, the defendant concentrated his efforts on undermining the People's powerful evidence — the video surveillance recording of him running from the scene of the crime with something in his left hand.
So, too, that the People's theory at trial was that the defendant held a gun in his left hand is underscored by the materials filed by the parties in connection with this motion. Indeed, in their response, the People contend that whether the defendant had a gun, or a beverage can, in his left hand, was argued at length at trial. Affirmation in Response at 10. Notably absent from the People's response is any allegation that the trial evidence instead demonstrated that the defendant held a gun in his right hand. Moreover, the Office of the Appellate Defender hired an individual to enhance the video surveillance recording of the defendant's left hand — the hand the People argued at trial held the gun.
Despite the foregoing, the People, forced to concede that the defendant does not have a gun in his left hand, now contend that while they directed the jury's attention at trial to the defendant's left hand, perhaps they did so in error. See Proceedings, January 14, 2015 at 47. The People now claim that directing the jury's attention to the defendant's left hand was simply a "mistake," as it was always their position at trial that the gun was in the defendant's right hand. See Proceedings, January 14, 2015 at 47-48. Not so. There is no doubt that the People tried this case based on a theory that best comported with the strong evidence they presented at trial — the video surveillance recording showing the defendant with a gun in his left hand, evidence that the People now concede conclusively demonstrates that the defendant had not a gun, but a non-lethal object in his left hand — a beverage container of some kind. The People's "error" at trial can not be excised simply by a mea culpa. Moreover, that the People now downplay the importance of the video surveillance recording at trial, claiming instead that the recording merely corroborated the other evidence in the case, is unavailing. While the video may fortify the testimony of the eyewitnesses and corroborate the defendant's admission to having possessed a gun on the night of the shooting, the People's position begs the question — without that corroborative evidence, would the jury's verdict remain the same?
Pursuant to C.P.L. § 60.50, "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed."
Of course, the power to vacate a judgment of conviction based on new evidence is purely statutory and rests within the sound discretion of the trial court. People v. Crimmins, 38 NY2d 407 (1975). C.P.L. § 440.10(1)(g) provides that a judgment of conviction may be vacated on the ground of new evidence when:
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 . . .
To satisfy the statute, the new evidence must meet the following criteria: "it must be of such nature that it would probably change the result if a new trial were held; it must have been discovered after trial; it must have been undiscoverable prior to or during trial notwithstanding defendant's exercise of due diligence; it must be material to the issue; it must not be merely cumulative; and it must not merely impeach or contradict evidence given at trial." People v. Taylor, 246 AD2d 410, 411 (1st Dept. 1998), lv. denied, 91 NY2d 978, citing, People v. Salemi, 309 NY 208 (1955), cert. denied, 350 U.S. 950 (1956).
In the instant matter, the newly enhanced video surveillance recording fails precisely to meet the enumerated criteria in several important ways. First, the evidence was not discovered after trial, nor was it undiscoverable during trial, notwithstanding the defendant's exercise of due diligence. Indeed, the video surveillance recording was introduced into evidence by the People at trial, and, moreover, defense counsel made extensive use of it during summation. While the defendant may have been unable to obtain a forensic analysis of the video surveillance recording at the time of trial due to financial concerns, as he now contends, it is just as likely that he refrained from doing so for strategic reasons. After all, enhancement of the video could have established that the individual on the video was the defendant — in direct contradiction of his trial strategy. This case, however, presents a unique set of circumstances that requires further exploration. While not precisely new evidence, it is not unreasonable to conclude that the newly enhanced video surveillance recording would change the result at trial.
At trial, the defendant did not concede that he was the individual in the video surveillance recording running from the scene of the shooting, as he does now.
Based, therefore, on the foregoing, this Court concludes that had the newly enhanced video surveillance recording been introduced at trial, a verdict more favorable to the defendant would have resulted. Indeed, the People would have been precluded from arguing that the video showed the defendant running from the scene of the shooting with a gun in his left hand. And, of course, a video surveillance recording undeniably corroborates the testimony of witnesses and any admissions made by a defendant, and constitutes strong evidence of a defendant's guilt. Without that strong evidence of guilt, it is not unreasonable to conclude that the verdict would have been more favorable to the defendant. At bottom, it is impossible to know whether and to what extent the jury relied on the People's assertions that the video showed the defendant with a gun in his left hand. Thus, the Court concludes that under the unique facts and circumstances of this case, the defendant did not receive a fair trial, in violation of his constitutional rights, see C.P.L. § 440.10(1)(h), and hereby grants a new trial.
Actual Innocence
The defendant also contends that the judgment of conviction should be vacated pursuant to C.P.L. § 440.10(1)(h) as he is actually innocent of the crime for which he was convicted — Criminal Possession of a Weapon in the Second Degree (outside home or place of business). Specifically, the defendant contends that the newly enhanced video surveillance recording demonstrates that he "simply could not have been holding an operable firearm at the moment the crucial eyewitness, William Wade, claims to have seen him discharge his weapon." Defendant's Motion at 18. In contrast, the People contend that the defendant's argument simply ignores the other compelling evidence in this case — the testimony of the two eyewitnesses, the defendant's own admission, and the defendant's jail house calls (constituting evidence of the defendant's consciousness of guilt). Moreover, the People contend that the defendant's position ignores the fact that the video surveillance recording — whether enhanced or not — does not show the shooting itself, but rather, shows only the defendant fleeing from the scene moments after the shooting. While the enhanced video surveillance recording entitles the defendant to a new trial, it fails to demonstrate to this Court, by clear and convincing evidence, that the defendant is actually innocent. Accordingly, the defendant's motion to vacate the judgment of conviction on actual innocence grounds is denied.
It bears mention that at the defendant's request, the Conviction Integrity Unit of the New York County District Attorney's office reviewed the case, as well as the newly enhanced video surveillance recording, and declined to join the instant motion to vacate the judgment of conviction.
To begin, no statutory authority exists for a court to consider a claim of actual innocence. The Second Department, however, recently held that a claim of actual innocence is cognizable pursuant to C.P.L. § 440.10(1)(h), which authorizes a court to vacate a judgment of conviction that is obtained in violation of a defendant's constitutional rights. See People v. Hamilton, 115 AD3d 12 (2d Dept. 2014). In order to establish actual innocence, a defendant must demonstrate his innocence by clear and convincing evidence. Id. at 27. Notably, "[m]ere doubt as to [a] defendant's guilt, or a preponderance of conflicting evidence as to [a] defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence and is in fact presumed to be guilty." Id.
In the instant matter, the defendant fails to demonstrate by clear and convincing evidence that he is actually innocent. First, the defendant was identified at trial by two independent eyewitnesses, who testified that they had observed the defendant in possession of a gun on July 28, 2009, in front of 107 West 109th Street. Indeed, one of those eyewitnesses — William Wade — testified that he observed the defendant firing the gun several times. Notably, both eyewitnesses were fully familiar with the defendant. Moreover, the observations made by the witnesses, including the actual shooting, took place when the defendant was out of range of the various cameras located throughout the block. Additionally, Detective James Falotico testified that he interviewed the defendant following his arrest and that the defendant admitted that he had been in possession of a gun at the time of the shooting. Further, the People introduced several recordings of telephone conversations the defendant had with other individuals while he was incarcerated. On the recordings, the defendant can be heard directing an individual to climb into his bedroom window at night when the police were not watching, to get the "X box game." After being told during one of the conversations that his cohort "got the box out of the house," the defendant replied that when he goes back to court, he should be "out" because "that's the only thing they needed," presumably the gun. Additionally, the People introduced at trial the video surveillance recording at issue in the instant motion. In that video, the defendant can be seen running from the scene of the shooting wearing the same clothes he was arrested in. The People introduced that clothing into evidence as well. The foregoing makes plain that the jury was presented with compelling evidence to support its verdict, without reliance on the video. Nevertheless, it remains unclear to what extent the jury relied on that video, as opposed to the otherwise convincing evidence of the defendant's guilt, thus entitling him to a new trial, but not providing a basis for vacating the judgment of conviction on actual innocence grounds.
Despite the foregoing, however, the defendant now seeks to undermine the jury's verdict by raising alternative interpretations of the evidence that the jury, by its verdict, rejected. For example, the defendant contends that the eyewitnesses were incredible and their testimony unreliable. The jury, however, as the trier of fact, was given a full opportunity to assess the credibility and reliability of the eyewitnesses. Additionally, the defendant contends that the statement he made to the case detective was inherently unreliable and should not have been introduced at trial. The defendant, however, fully litigated the admissibility of his statement during a pre-trial suppression hearing. Further, the defendant argus that the telephone conversations he had about the X box game, were in reference to another gun that he possessed in his apartment, a gun unrelated to the shooting at issue. That speculative argument is unconvincing. Finally, the defendant's contention that the jury's inability to reach a verdict with respect to the remaining three offenses — Attempted Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree (Intent to Use Unlawfully), and Reckless Endangerment in the First Degree, supports an inference that he is actually innocent of the remaining offense — Criminal Possession of a Weapon in the Second Degree (Outside Home or Place of Business) — is unavailing. Indeed, myriad reasons exist why the jury may have been unable to reach a verdict with respect to those offenses, including that the defendant confessed to possessing a gun, but maintained that he had no involvement in the shooting. In other words, the jury may have chosen to convict the defendant solely for the offense he admitted to having committed. Indeed, the jury may have credited the People's evidence placing the defendant near the scene of the shooting with a gun in his hand, while simultaneously crediting the defendant's position at trial, that he took no part in the shooting itself. In any event, the defendant's arguments simply fail to demonstrate by clear and convincing evidence that he is actually innocent. Thus, the motion to vacate the judgment of conviction on the basis of actual innocence is denied.
Notably, despite no evidence of justification at trial, and no request for a justification charge by either party, the trial court instructed the jury that justification applied to the Reckless Endangerment count and read the CJI justification charge to the jury. It is not unreasonable to conclude, therefore, that the jury questioned not whether the defendant had committed the remaining offenses, but, rather, whether he was justified.
Conclusion
The judgment of conviction is vacated and a new trial is ordered. This constitutes the Decision and Order of the Court.
Dated: New York, New York
June 2, 2015
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J.S.C.