Opinion
No. 8131/97.
12-21-2016
The PEOPLE of the State of New York v. Archie COSEY, Carl Dushain, and Danny Green, Defendants.
Cyrus R. Vance, District Attorney, New York County, (Christine Keenan of counsel), for the People. Robert S. Dean, Center for Appellate Litigation, New York City, (Abigail Everett and Amanda Rolat of counsel), for defendant Danny Green. Beldock, Levine & Hoffman, LLP, New York City, (Myron Beldock and Keith Szczepanski of counsel), for defendant Archie Cosey. M & J Harris Associates, New York City, (James A. Harris of counsel), for defendant Carl Dushain.
Cyrus R. Vance, District Attorney, New York County, (Christine Keenan of counsel), for the People.
Robert S. Dean, Center for Appellate Litigation, New York City, (Abigail Everett and Amanda Rolat of counsel), for defendant Danny Green.
Beldock, Levine & Hoffman, LLP, New York City, (Myron Beldock and Keith Szczepanski of counsel), for defendant Archie Cosey.
M & J Harris Associates, New York City, (James A. Harris of counsel), for defendant Carl Dushain.
RUTH PICKHOLZ, J.
The defendants were convicted of the 1993 murder of James Williams as well as other crimes. Defendant Cosey was convicted by plea, and defendants Green and Dushain were convicted after trial. All three moved to vacate the murder conviction on a variety of grounds, including that they were actually innocent of the crime. I granted their motions to the extent of ordering a hearing as to several limited issues: whether the three were, in fact, actually innocent of the murder; and, as to Cosey only, whether the court and prosecutors prevented another gang member, David Bobbit, a/k/a "Disco," from testifying on behalf of Cosey; whether Cosey would have proceeded to trial had Bobbit's testimony been available to him, and whether Cosey's trial attorney, J. Andrew Marshall, was ineffective for failing to argue that Cosey had wrongly been deprived of Bobbit's testimony. As additional evidence came to light during the course of the hearing, I granted defendants' application to extend the hearing to whether Green's and Dushain's trial attorneys had been ineffective for failing to consult with and adduce the testimony of a ballistic expert and a medical examiner, and whether the prosecutor wrongly withheld certain information from the defense. At the close of the hearing my findings of fact and legal conclusions are as follows.
The Defendants and Bobbit were members of a violent drug organization whose center of operation was a brownstone located at 162 West 123rd Street in Manhattan. Other gang members included James Williams, David Ortiz, Janet Hutchens, Edward Walker and Johnnie Walker. Williams acted as a handyman and was the de facto superintendent of the building. He repaired the brownstone, built false walls and hidden compartments where contraband could be secreted, and performed related duties which earned him the nickname "the Carpenter." David Ortiz, who was all of 14 in 1993, acted as a seller and runner for the organization. He testified at the trial of Green and Dushain but did not testify before the grand jury. Johnnie Walker, who was Ortiz's age and like him sold drugs for the organization, also testified at trial. His older brother, Edward Walker ("Melo"), who was also a low-level seller, testified before the grand jury only. Hutchens was a low-level seller and a drug addict. She testified both before the grand jury and at the trial.
On July 1, 1993, the police raided the brownstone and recovered cocaine, cash, drug paraphernalia and records of drug transactions. David Ortiz testified at the trial of Dushain and Green that Dushain suspected that someone in the gang had supplied information to the police. He also suspected that someone was stealing from the organization. According to Ortiz, Dushain and the others eventually settled on Williams as the tipster and thief, and arranged for Green to kill him for $500.
On August 2, 1993, someone unconnected with the gang shot a man named Dino or Dido in front of the brownstone. This shooting apparently had no connection with the actions of Dushain's gang. At 4:00 P.M. the next day the police again raided the building. In so doing they broke the glass panel on the front door. Several gang members were arrested. James Williams was present during the raid and answered some questions posed to him by the police at the time. In the evening that same day (August 3) two or three people came to the block, apparently of the belief that Dushain's gang was responsible for the shooting of Dino/Dido. They took out guns that they had kept hidden as they had approached, and sprayed the brownstone with gunfire from between two cars parked across the street ("the attack on the building"). David Bobbit was on the front stoop of the brownstone at the time. One of the shots passed through his leg and another lodged in his buttock. Although they never charged him as an accomplice to the murder of Williams, the People believe that Dushain had stationed Bobbit outside the building to act as a lookout while the other members of the gang carried out the murder in the lobby. According to the People, the murder of Williams by the gang was nearly contemporaneous with the attack on the building by the men who had come to retaliate for the Dido/Dino shooting. The defendants urge a simpler scenario in which Williams, like Bobbit, was caught outside the brownstone during the attack, and that the same gunfire that wounded Bobbit killed Williams. The People contend that Dushain immediately seized upon the possibility of making it appear that Williams was killed in the attack. In support of this theory, they rely on trial testimony from David Ortiz and Johnnie Walker that immediately after the attack, Dushain ordered someone to get Williams's body out of the building. In one of the many affidavits that he has submitted over the years, David Bobbit made the same assertion. I conclude that Dushain made the statement.
Ortiz testified that Dushain told him that his motive was to make it appear that Williams had been killed in the attack.
Dushain's direction to remove the body was not carried out. Medical personnel arrived to find Williams's body still in the building lobby. Astoundingly, neither the paramedic who first arrived nor the doctor who later examined the body at Harlem Hospital recognized the bullet hole in Williams's back for what it was. Doctors consequently misdiagnosed his cause of death as cardiac arrest. This report was disseminated on the street. Dushain sent Ortiz and Johnnie Walker to the morgue to verify that Williams was dead. The trial prosecutor testified at the hearing that this fact was among those which convinced him that Dushain was responsible for Walker's death, as he reasoned that there was little reason for Dushain to verify that fact except to quiet his sudden fear that the murder victim had survived, however briefly, to inculpate him. I do not find that to be a necessary conclusion.
Approximately a month later Cosey, Green and Ortiz, convinced that Hutchens had taken money from the gang, took her to the building's sub-basement and kept her there against her will for five to six hours. Two days later, on September 10, Hutchens engineered her arrest. It appears that she both feared further abuse at the hands of the gang, and was angry at them for the mistreatment that she had suffered. She spoke to the police about her abduction and provided them with enough information to support another raid. Cosey, Green and Ortiz were arrested at that time. Hutchens also told the police that she had witnessed the execution of Williams. She had been peeking out of the front door of one the apartments in the brownstone and had seen Cosey, Dushain and Green begin to manhandle and pummel Williams as Ortiz watched. She heard Dushain yell, "get a gun," and watched as Green came down the stairs with a silver automatic. He accused Williams of stealing from the gang. After someone pushed Williams down, Green shot him. The police were given some reason to credit at least part of Hutchens's account when, about a week later, they received an anonymous phone call from someone professing to be a member of the gang. The caller told them that "Carr," one of the bosses of the gang, had shot the carpenter. The caller stated that he would not come forward for fear of retribution.
Cosey, Green and Ortiz were charged with kidnapping Hutchens, and Green was separately charged with the murder of Williams. Both Hutchens and Bobbit appeared at their Criminal Court arraignment. Hutchens was present because Dushain had found her, strong-armed her into a car, and taken her to court to compel her to withdraw her accusations. The hobbling Bobbit, recently released from the hospital, told the judge presiding at arraignments that Williams had been killed in an unrelated shooting, the same shooting in which he had been wounded. The case was adjourned for action by the grand jury, but Hutchens was not to appear before it. She later testified that Dushain threatened to kill her if she did. She refused to further cooperate with the police, and the charges against the defendants were consequently dropped.
Janet Hutchens and Edward Walker (Melo)
In late 1996 the police and the District Attorney's Office began another investigation into the gang's activities. By then Janet Hutchens was again willing to speak to them. She reiterated her story about witnessing the murder of Williams, and held to her account in repeated interviews with the district attorney. In October of 1997 the People obtained an indictment against the defendants and more than a dozen others. In addition to charging Dushain, Cosey, Green and Ortiz with the murder of Williams, it charged various gang members with additional counts of murder, attempted murder, kidnapping, drug conspiracy and numerous substantive drug crimes. Two witnesses, Hutchens and Edward Walker, testified in the grand jury as eyewitnesses to the Williams murder. Walker, who was by then 21 and in jail, agreed to testify for the prosecution in return for immunity in the grand jury, the People's promise not to indict him, and a favorable letter to the parole board. He told the grand jury that he had seen Green shoot Williams inside building lobby. His account did not materially differ from the one that Hutchens had given. Walker testified that he had observed the execution from the back apartment on the first floor. Hutchens adhered to the version of events that she had given before. During direct examination the prosecutor asked her whether any other gang members had been present during the shooting. She answered, "Melo [Edward Walker]" The prosecutor then asked "Where is Melo?" Hutchens testified, "he was right, like, standing by the door I was at, on the steps, on the ledge." She was then asked if, from her vantage point, she had been able to see if Walker had ever left the staircase to go somewhere else. She answered, "No. Later on [Walker] was outside."
But Walker had been neither next to Hutchens nor outside the building later on. On October 24, shortly after the indictment was filed, the People discovered that he could not have witnessed the murder because he had been in prison on August 3, 1993. The assistant district attorney in charge of the case confronted him with his lie. Walker explained that he heard about the shooting from someone else who claimed to have been present. The People obtained a perjury indictment against him, and he subsequently entered into a plea bargain and received a short prison term.
The People did not believe that Hutchens had been lying about Walker's presence, but only that she had been mistaken. They were convinced that the murder had occurred as she had testified, as her account was consistent with other evidence that they deemed credible. They dismissed the version of the events put out by Bobbit and some others as a fabrication. But they now had to decide how to proceed. They reasoned that, as they no longer had any intention of calling Walker to testify at trial, his grand jury testimony would constitute neither Brady–Giglio nor Rosario material vis a vis Walker himself. The problem, however, was more vexing than that. Hutchens, the only remaining grand jury witness to the murder, had testified that Walker was standing near her during the incident, and that he had later been outside the building. Those assertions were obviously not true, and they cast doubt upon the trustworthiness of everything else she had said about what she had seen. The People thus arguably had a separate Brady–Giglio obligation stemming from the fact that Walker's perjury impacted upon Hutchens's credibility (see Brady v. Maryland, 383 U.S. 73; United States v.. Giglio, 450 U.S. 150). Additionally, the defendants would inevitably move for inspection of the grand jury minutes, and the reviewing court (Leslie Crocker Snyder, J.) would have to be apprised that Walker's testimony was perjurious.
The People mulled over the matter for eight months and at last decided that they would satisfy whatever obligations they had by deferring to the court. They said nothing to the defense, but instead crafted a long, ex parte letter to the court which was structured and functioned as a legal brief. They revealed Walker's perjury and explained that he had learned of Williams's execution second-hand, from Cosey. They urged the court to uphold the count charging Williams murder on the basis that, despite Walker's perjury, the count had not impaired because the testimony of Janet Hutchens standing alone, "if accepted as true" established every necessary element of murder in the second degree as to the death of Williams. The People did not suggest that there might be good reason not to accept her testimony as true, i.e., they did not mention that Hutchens had placed Walker near her as she viewed the murder and had further claimed that he was standing outside the building afterward. They now argue that there was no need for them to have highlighted this portion of Hutchens's testimony for the court, as Judge Snyder had the entire grand jury transcript before her (as well as a separate copy of Hutchens's testimony which they had appended to the letter), and would certainly have realized without their help that Hutchens's assertions about Walker were impossible. In addition the People asked that, for Walker's safety, the entire matter be withheld from the defendants. They argued that there was no useful purpose to be served by revealing his perjury. He would not be testifying for the prosecution, and his testimony did not exculpate the defendants. More importantly, they continued, Dushain's gang was violent and had no compunction about eradicating witnesses against them. The court granted the application. As a result, the defendants were unaware of the substance of Walker's testimony, or even that he had testified in the grand jury. They also did not know that the People had made the ex-parte application to withhold the matter from them. The court subsequently found the grand jury presentation, including the count charging the murder of Williams, to be legally sufficient. The defendants argue that the procedure followed by the People impaired the integrity of the grand jury presentation as to the Williams murder count, requiring vacatur of their convictions. They additionally argue that the People's failure to reveal the perjury prior to Cosey's plea and Green's and Dushain's trial constituted a Brady violation.
The prosecutor who confronted Walker and sent the letter now states that he now does not know if that statement was true. In the voluntary disclosure form relating to Walker's perjury prosecution, the People stated that Walker told them that he learned about the shooting "from everybody else."
I reject the argument that the entire indictment was impaired, as the defect that they complain of materially related only to the count which charged the murder. The conspiracy count to which Cosey pleaded guilty was supported by ample independent evidence.
At the hearing before me, Cosey's trial attorney testified that, had he known of the ex-parte letter he would have asked to have it read into the record, and had he known of the perjury he would have challenged the sufficiency of the indictment.
The Pleas of Bobbit and Cosey
The police arrested David Bobbit in October 1997. The People did not believe that they had enough evidence to link him to the Williams murder, but they obtained an indictment charging him with conspiracy and criminal sale of a controlled substance in the third degree. In early January 1998, he and his attorney met with the assistant district attorney for a proffer session. Bobbit repeated his claim that Williams had been killed in the attack on the building. The People asked him if he would permit a surgeon to remove the bullet in his body so that they could submit it for ballistics comparison with the bullet that had killed Williams. Bobbit refused. If the People did not believe his story before, they had less reason to do so now. They declined to offer him a cooperation agreement. Up until almost the eve of trial, both the defendants before me and Bobbit himself believed that he would be called by the defense to testify that Williams had been killed in the crossfire, but that was not to happen. On October 1, 1998, as preliminary proceedings in the trial were beginning, he pleaded guilty. The People, apparently forgetting that Bobbit had a prior violent felony conviction, offered him an indeterminate prison term of from nine to 27 years which they later realized was an illegal sentence. Bobbit accepted the offer.
The People were earlier aware of his correct predicate status, as their internal records show that they were initially planning to offer him a sentence of 12½to 25 years, a sentence appropriate for a second violent felony offender.
Jury selection began for the remaining defendants on October 7. On October 15 Cosey pleaded guilty. He was promised concurrent terms of 25 years to life in return for his pleas to conspiracy in the first degree and murder in the second degree. In his allocution, Cosey admitted that he had acted in concert with Dushain and others to kill Williams. The trial of Green and Dushain then proceeded without him. By November 5, the People had become aware that the sentence that Bobbit had been promised was illegal. They spoke to his attorney and agreed to permit him to receive a prison sentence of from nine to 18 years. Bobbit was not sentenced on that date, however, because the People wished to conduct an Evangelista hearing before the court sentenced him (see People v. Evangelista, 88 A.D.2d 804 ). The hearing and sentence were scheduled for November 16.
The People wished to determine at the hearing whether Bobbit would assert his Fifth Amendment rights if he were called to testify at his codefendants' trial.
Cosey was sentenced on November 10, prior to Bobbit's Evangelista hearing. When the case was called Cosey's attorney informed the court that his client wanted to withdraw his guilty plea. He then read a statement from Cosey which contained a number of factual claims, including assertions that his plea had been coerced and that he had alibi witnesses who could prove his innocence. Judge Snyder did not believe his coercion claim and dismissed his remaining arguments. She concluded that his application was a ploy to gain an advantage by forcing the district attorney to try him separately from his codefendants, whose trial had continued without him. She denied the motion and imposed the sentence that she had promised him.
On November 16 the court held the Evangelista hearing. Bobbit testified that he would invoke his Fifth Amendment right to remain silent if he were called to testify at the defendants' trial. He was sentenced the next day to a term of from nine to 18 years in prison, as the parties had worked out. On December 22, 1998, attorneys for Green and Dushain stated that they would not be calling him to testify for the defense.
At the hearing before me, Bobbit stated that he did not testify on behalf of Green and Dushain because he felt intimidated. He believed that if he testified, the prosecutor would somehow cause him to receive a life sentence. The basis of his belief was the fact that the People seemed to be playing games with his sentence; first they offered him one sentence, then another. If I understand his testimony correctly, he believed that if he testified for the defense, his plea agreement would be jeopardized and that he would have to go to trial on the charges. If he were then convicted, he would face a much longer sentence than the nine to 18–year term that he had received pursuant to the plea bargain.
The People's Evidence at Trial
Testimony concerning the Williams murder constituted a very modest part of the three-month joint trial of Green and Ortiz. The defense made no ado of the forensic evidence. The medical examiner testified that the bullet entered through the lower back and took an upward trajectory through the body of the deceased until it lodged near the neck. She also stated (on direct examination) that she could not say how the deceased had been positioned at the time, and that the track of the bullet told her nothing about how the shooting occurred. The cross examination was all but nonexistent. As would later be the case during summations, neither attorney attempted to make anything of the path of the bullet.
Ortiz, who, at age 17, was testifying pursuant to a cooperation agreement, provided the only detailed account Williams's death:
Ortiz left the organization in 1994 but was arrested in 1997 for his participation in the drug conspiracy, the Williams murder and Hutchens's kidnapping. In return for his cooperation he was promised a prison sentence of no more than 5 to 15 years.
People: What happened?
Ortiz: Right now he's pleading asking [Green] not to kill him. He's on his knees with his hands up. As [Green] proceeded to walk around [Williams], he tried to grab him, asking him not to shoot him. He didn't deserve to die.
People: What was Carl [Dushain] doing this time period?
Ortiz: he's busy watching, he's staring, telling him to hurry up and do it. That's when [Williams] started grabbing him. Then Green turned, like pulled off of him, turned around and shot him.
People: Where did he shoot [Williams]?
Ortiz: In the back.
People: How far away was he [when] he shot [Williams]?
Ortiz: About five feet.
The assistant district attorney later went through the events again:
People: Was [Williams] standing, sitting or kneeling, how was he positioned when he got shot?
Ortiz: He was kneeling.
People: He was kneeling toward the basement stairs?
Ortiz: Yes.
People: And when Danny Green shot him, he was closer to you in the doorway?
Ortiz: Right.
People: What happened after [Williams] was shot?
Ortiz: He fell to the floor. He like crunch[ed] his hands a bit. That's when he died.
People: Which way did he fall?
Ortiz: Toward the steps. He was facing toward the steps.
People: Are you saying he was on his knees and his body fell forward?
Ortiz: Right.
Hutchens testified regarding the membership and workings of the organization, her September 1993 kidnapping, and the Williams murder. She stated that she was peeking out of her apartment when she witnessed the murder, named Green as the shooter, and placed Cosey, Ortiz and Dushain there as well. The People were, of course, aware that Hutchens had previously stated that Walker had been standing near her during the shooting, but in preparing her for her trial testimony they did not tell her that they had since learned that her statement could not be true. They simply told her to tell the truth, and waited to see how she would testify on that point. As they knew that the defendants would attempt to impeach her with her prior statement, they confronted the issue head-on. At the close of her account of at the execution, they asked her if she remembered seeing anyone else there, or telling anyone else that someone else had been present. She answered, "No. At one time I thought that Melo [Walker] was in the building, but he wasn't. There was another guy, named Melo, but he wasn't in the building. I think I seen him outside. The People then asked, "Was he—if he was there, was he part of what was happening in the hallway?" Hutchens answered, "No ." She also testified that she returned to the building three days after the incident. She asked Dushain about Williams. He first told her that a heart attack had killed him, and then that he had gotten caught in cross fire in the attack on the building. She replied that she knew that was untrue; she had been there. He then told her "never tell anybody whatever you saw or whatever happened." As part of their Rosario obligation the People had provided defense with Hutchens's grand jury testimony. They also told them that Walker had been in jail the day that Williams had been murdered. The court did not permit the defense to elicit that Hutchens had placed Walker next to her during the murder, but at the close of her testimony the People read a stipulation that "on the night of the James Williams Homicide, Melo, Edward Walker, was incarcerated that evening."
On summation the defense argued that both Ortiz and Hutchens had motivations to lie. Green's trial attorney highlighted the fact that Hutchens had testified that Walker had been present outside the building on the night of the murder, when that clearly was not true. Dushain's attorney argued that, aside from the testimony of "the rats," (Ortiz and Hutchens) there was no proof that Williams had not been killed in the attack on the building. Neither attorney addressed the import of the bullet path. The jury found the defendants guilty of the Williams murder, and most of the other counts.
Procedural Aspects of the Actual Innocence Claim
One of the issues before me is whether the defendants have proven by clear and convincing evidence that James Williams was killed by the same men who wounded Bobbit, or whether he was shot by Green at the behest of Dushain (see People v. Velazquez, 143 AD3d 126; People v. Hamilton, 115 AD3d 12 ). A second issue is, even if defendants have not met that burden, whether Cosey has proven by clear and convincing evidence that he is actually innocent because he was not present during the shooting of Williams by Green and was not otherwise an accomplice to the murder. The People first argue that, the substantive merits of these claim aside, as Cosey pleaded guilty to the murder, he should be precluded from arguing that he is actually innocent under any theory.
In granting Cosey an actual innocence hearing, I noted that there was no authority in this jurisdiction permitting one who had pleaded guilty to a crime to collaterally attack his conviction on the ground that he was actually innocent of the crime. I further noted that most cases in other jurisdictions precluded such a defendant from bringing an actual innocence claim in the absence of substantial evidence that the plea was the result of some other, independent violation of due process. I granted Cosey an actual innocence hearing because he alleged such a violation, i.e., that the People had denied him the testimony of Bobbit, because he had immediately sought to withdraw his plea, and because I was granting such a hearing to his codefendants, Dushain and Green, who had gone to trial. I reasoned that extending the hearing to Cosey would not materially increase the burden on the People, and that it would be unjust, if not perverse, to preclude Cosey from the hearing because, if Dushain and Green were actually innocent of the crime, Cosey was necessarily innocent as well. Indeed, there was an additional basis to think that Cosey might be innocent. Unlike Dushain and Green, who claimed only that Williams had been shot in the attack on the building, but who never affirmatively contested their presence in the building at the time of the events in question, Cosey had consistently claimed that he had been elsewhere at the time. He had appended affidavits to his motion papers from several people who stated that they were available to testify at a hearing on his behalf. The affidavits supported the conclusion that Cosey had not been present in the building at the time that the People claimed Williams was shot.
Since my decision appellate courts in three judicial departments have held that CPL 440.10(h) encompasses a claim of actual innocence (see People v. Hamilton, 115 AD3d 12 [2nd Dept] ; People v. Jimenez, 142 AD3d 149 [1st Dept] ; People v. Conway, 118 AD3d 1290 [4th Dept] ). The defendants in both Hamilton and Jimenez were found guilty after trial, and it is therefore not surprising that neither addressed whether one, like Cosey, who has pleaded guilty to a crime may advance an actual innocence claim. Nevertheless, nothing in the reasoning expressed in these cases suggests that a person his position may not. The Hamilton court stated that the conviction or incarceration of an actually innocent person violates elementary fairness, and that any punishment imposed on such a person is inherently disproportionate to his or her acts. The court reasoned that a free-standing actual innocence claim was therefore supported by both the Due Process Clause and the Cruel and Unusual Punishment Clause (Id. at 26 ). If that is the case, these constitutional provisions are violated whether the actually innocent person has pleaded guilty, or has been convicted after trial.
At any time after the entry of judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that ... (h) the judgment was obtained in violation of a right of a defendant under the constitution of this state or the United States.
The defendant in People v. Conway (Id.) collaterally attacked his conviction on the ground, inter alia, that he was actually innocent of the crime to which he had pleaded guilty. The Appellate Division, Fourth Department held that he was not entitled to a hearing on his innocence claim, as his admission of guilty at his guilty plea contradicted the claim. Given the defendant's independent due process claims, I do not know whether I would have denied him an actual-innocence hearing had the issue come before me after Conway was decided. But Conway does not prevent me from deciding the merits of a hearing which I have already held, especially as I am considering his codefendants' innocence claims. The sanctity with which the law traditionally treats a guilty plea must give way to the fact that if Green and Dushain are actually innocent, he must be as well. I will therefore consider his claim on the merits.
To prevail upon an actual innocence claim, the convicted person must produce clear and convincing proof of innocence (see People v.. Hamilton, 115 A.D.2d 12). The evidence must be reliable, and not merely compete against the evidence that the jury heard, or resolve by a preponderance of the evidence in the defendant's favor an issue that was contested at trial (see People v. Jimenez, 142 AD3d 149 ). It must rather show that defendant's claim of innocence is "highly probable" (People v. Velazquez, 143 AD3d 126, 136 [1st Dept] ) and affirmatively resolve an issue that is determinative the defendant's innocence in his favor (see People v. Jimenez, 142 AD3d 149, 157 ). "Exculpatory scientific evidence, trustworthy eyewitness accounts, ... [and] critical physical evidence" are examples of reliable evidence upon which an actual innocence claim may be granted (Schlup v. Delo, 513 U.S. 298, 324 ).
Forensic Evidence Adduced at the Hearing
The medical evidence at the hearing established, as it did at trial, that the entry wound of the bullet which killed Williams entered through his left lower back and traveled back to front and left to right, upward until it lodged in the base of the neck. What the hearing testimony made obvious, however, as the trial testimony did not, was how difficult it would have been to create the bullet path even if Williams been shot in the manner the People claim. The most natural understanding of Ortiz's testimony is that Williams was on his knees begging for his life, torso upright and hands extended, as Green, five feet away, shot him from behind. As the People concede, it is obvious that, given the medical testimony, such could not have been the case. If Williams was kneeling, the bullet path could only have been created if his buttocks were higher than the rest of his body, while his upper torso was bent forward, flat or at some low angle to the floor. It seems odd that Ortiz would have said that Williams was on his knees if he really meant that his upper body was lying on the floor. And if Williams was nearly flat on the floor, Green would have had to have shot him at an extremely low angle (i.e., at an angle close to the floor) to achieve the bullet path seen in Williams's body. It is difficult to see such a tableau in Ortiz's testimony. Moreover, if that is indeed the way that Williams was positioned, it is difficult to understand how Ortiz's testimony that, after he was shot, Williams "fell to the floor" "crunching" his hand a bit, or that and "fell forward" toward the steps. Surely, according to the People, he was already on the floor, and there was little if any distance for him to fall. The People seek to flesh out the events in their favor by having Williams fall forward after Green pulled him off of his body, but that event must be also read into the testimony. Williams could have been lying on his stomach as he was begging for his life, and have then collapsed, his body falling forward an inch or two after he was shot, but that is not what Ortiz said at trial. The assistant district attorney who tried the case testified at the hearing that he spoke with Ortiz before the trial. He stated that Ortiz explained to him that Williams had been on his knees, and had indeed been lying prostrate on his stomach when he was begging for his life. I have no reason to question his memory of Ortiz's statement; nevertheless, he did not elicit that clarification from Ortiz at trial. The parties made various demonstrations at the hearing how the positioning that they favor could or could not have been possible. I conclude that it was physically possible for Williams's body to have been positioned in the manner urged by the People. But fixing the position of Williams' upper torso on the floor does not dissolve the problems presented by the People's scenario. If Williams's upper torso was nearly flat on the floor, as the People insist, Green must have either bent over in some fashion in order to shoot him, or else kneeled or gotten down on the floor himself before shooting. The People have not demonstrated how the bullet path could have been produced otherwise. It is odd that Green would have resorted to any of these positions, or chosen such a singular and difficult-to-obtain angle to shoot Williams.
The assistant repeatedly used the word "prostrate" to describe the position of Williams's body, and in several demonstrations, testified that he gathered from speaking with Ortiz that Williams's torso had been had been very flat, "really close to the floor" (see, e.g., hearing transcript at page 1094). He positioned another member of his office on the courtroom floor to make the position clear. The defense also gave such demonstrations.
The defendants' strongest argument is thus that the path of the bullet in William's body is difficult to reconcile with any but a strained interpretation of the trial testimony, and that even accepting such an interpretation, it requires Williams's body to have been in an odd position, and for Green to have shot him at a low and seemingly unnatural angle. The combination of these factors makes it seem improbable that the bullet path was made in the way that the People contend. In contrast, the defendant's explanation for the path is intuitive and attractive. It is quite easy to imagine a shooter, standing some distance away, firing at a victim who is standing on steps, but who is bending his body forward in an attempt to minimize the shooter's target. Unlike the People's scenario, it requires no contortions on the part of the shooter. Additionally, defendant Green's ballistics expert confirmed that, in his experience, someone who hears gunshots often instinctively ducks and leans forward. But the People's scenario is not impossible, and just because it seems more natural for the defendants' scenario to have created the bullet path, it does not follow that it was created in that manner in fact. Events which are less likely do happen, and more likely ones sometimes do not. In the end, I conclude, as both experts admitted, either scenario was technically possible.
The ballistics evidence is tantalizing, but ultimately inconclusive. The police recovered 21 rounds of ammunition from four different guns from the area across the street from the brownstone. Clearly, most or all of these rounds were fired by the gunmen who came to avenge the shooting of Dido/Dino. The police also recovered a .380 bullet fragment from that area. The fragment is consistent with being fired from the gun with which Williams was shot. But if it was a fragment of a bullet shot by the men attacking the building, it would have had to have ricocheted off of the facade or steps of the brownstone and bounced back across the street approximately 50 feet. There was no testimony as to how likely that would have been. In the absence of testimony to the contrary, it does not seem to be impossible that the fragment could have traveled that far. If that is not how the bullet came to be there, there are but two plausible explanations. First, the fragment could have been planted there by the defendants. Second, it could have been the remains of the first bullet fired by Green which, missing its target, sailed through the broken glass panel of the front door of the brownstone. The scenario in which the gang tampered with the bullet seems less probable to me than the other two, as it is difficult to believe that someone in Dushain's gang would have had the presence of mind to arrange such a small and easy-to-miss detail, but there is no way to know with certainty which is the one which actually occurred. Comparing the fragment with the bullet which remains in Bobbit's buttock with the bullet which killed Williams (which presumably still exists) might reveal whether they were fired by the same weapon, but Bobbit has never agreed to have the bullet within him surgically removed. To be sure, if the bullets did not match that would not definitively prove that Williams was not killed in the attack. At least two people fired upon the building. The person who wounded Bobbit might not have been the person who shot Williams.
Hutchens's Recantation
In 2011, thirteen years after Cosey's guilty plea, Myron Beldock, Esq., who had long been working to obtain post-judgement relief for Cosey, located Janet Hutchens. In a telephone conversation she told him that "Carl [Dushain] wasn't there." When he asked her to reconsider her statement, she stated that she was uncertain as to whether he was present, but that Cash (Green) and Disco (Bobbit) had been in the lobby that night. She then said that Green did not shoot Williams, that Williams was caught in crossfire coming from across the street, and that Cosey wasn't present at the time. When the attorney asked her why she had testified otherwise at trial, she told him that her "memory just got clear, that's all." At first she refused to testify on Cosey's behalf, but she changed her mind sometime after I ordered a hearing in this matter. At the hearing Hutchens reaffirmed that she was a low-level drug seller for the gang, whom she had feared, as they had sometimes beaten her. She again stated that she had been held against her will on September 8 and 10, 1993, and that she had intentionally gotten herself arrested to escape from the gang. But she testified that the story that she had repeatedly given out about witnessing the murder was false.
Hutchens explained that she had falsely implicated Cosey and the other members of the gang because she had been angry at them for having kidnapped her. She had abused drugs in those days. The drugs "fried her brain," and she consequently lacked any regard for the truth. She didn't care what happened. She stated that her willingness to tell the truth at the present time resulted from his experience in jail, which she described as "a hard journey." She believed in God, and her conscience now told her that it was wrong for Cosey to suffer in jail for a crime that he did not commit, all because of her "meanness."
Hutchens testified at the hearing that she remembered very little about the evening of August 3, 1993. She had indeed been in the building that evening, but had entered the back apartment on the first floor prior to any shooting. As she came in, she saw Dushain, Green, Ortiz, Bobbit in the hallway. Williams was also there, fixing a door. Cosey had not been present. Hutchens heard an argument going on, but she could not name the participants. She stayed in the apartment the entire time, but upon hearing shots she opened the door, looked out and saw the same defendants. But this time she saw Williams's body lying on the floor of the hallway, near the door. She was sure that Cosey wasn't in the hallway when she peeked out. She also hadn't heard his voice while she had been inside. She heard no shots being fired inside the building. In contrast to her trial account, in which she stated that she exited the building through a back window, in her hearing version of the events, she left the apartment through the front door.
Her present claim is that she does not really know who killed Williams, but believes that he had been killed by "crossfire" coming from outside the building. In the course of her testimony Hutchens's story changed as to whether she personally heard gunfire coming from outside the building, or whether she just heard about it from others. At first she seemed to say that she heard the shots herself, but when I pressed her she testified that others told her about them. In fact, she didn't actually know if the shots had been crossfire. A few questions later, she stated that the assistant district attorney (whom, she lightly said, had "coached" her) told her about the gunfire outside the building:
Upon cross examination she stated that the assistant district attorney always instructed her to tell the truth.
The Court: You don't know who shot him [Cosey], do you?
Hutchens: No, I don't.
The Court: Are you sure about that?
Hutchens: I am sure, I am being honest.
Mr. Beldock: On the tape [of a telephone conversation between Hutchens and Mr. Beldock] you use the word "crossfire."
Hutchens: It was a shooting from outside going on.... That I do remember.There were shots from outside, and in the crossfire I believe that is what, that is how Williams got shot, in the crossfire.
The Court: How would you know that?
Hutchens: I wouldn't, I guess I wouldn't.
The Court: How can you say that?
Hutchens: I just, just saying the crossfire, there is a crossfire that you won't know the difference of who did.
Mr. Beldock: That was the only firing that you heard, or did you hear other firing?
Hutchens: No.
The Court: How did you know it was crossfire if you didn't see it?
Hutchens: I didn't see it, but I heard it. I also heard hearsay outside too.
The Court: You are telling us, let me get this straight, that your testimony about there is a crossfire is what you heard on the street?
Hutchens: Outside, right.
The Court: You really don't know whether it was crossfire?
The Court: Right.
The Court: You heard about it?
Hutchens: Right.
The Court: But you don't know?
Hutchens: Right.
Recanted testimony is considered to be among the weakest and most unreliable forms of proof (see People v. Shilitano, 218 N.Y. 161 ; People v. Cintron, 306 A.D.2d 151 ). In weighing it, the court must look to six factors: The inherent believability of the recanted testimony; the demeanor of the witness when testifying; the existence of other evidence which corroborates the trial testimony and the recantation; the reasons offered by the witness for the trial testimony and the recanted testimony; the importance of the facts established at trial as reaffirmed in the recantation; any relationship between the witness and the defendant as bearing upon a motive to lie (People v. Wong, 11 AD3d 724 [citing People v. Shilitano, 218 N.Y. 161 ] ).
Allowances must be made for the fact Ms. Hutchens is not the most articulate of witnesses. Even so, some of her answers show, at best, a casual disregard for accuracy. It is therefore difficult to have complete faith in anything that she said at any time. Of her two versions of the events, however, the version that she gave at trial is more believable. Aside from her statement about Edward Walker, she adhered to that version from the death of Williams through the trial. That aside, there is nothing inherently unbelievable about her trial account. I find of minimal weight the People's argument that, as Dushain and Ortiz (who was then only 14 years old) had been kind to her, she would not have falsely implicated them in a murder that they did not commit, but would only have named Cosey and Green, whom she hated or had reason to fear. It may have occurred to her, however, that as she knew that Dushain and Ortiz had been present in the hallway, it would be impossible to invent a plausible scenario in which they had not been there. She made several important assertions at the hearing which, even if believed, are nothing more than conclusions. She believes that Williams was killed in the crossfire, and states uncategorically that Cosey was not present, but admits that she was not in a position to see anything going on outside of her apartment.
I find Hutchens to be an untrustworthy witness. The fact that she recanted her trial testimony, and both the quality and substance of her hearing testimony indicate that she has limited regard for the truth. She sometimes gave the impression of altering her account as she went along. Explaining how it was that she was now certain that Cosey was not present on the night of August 3, she stated that her memory simply "cleared up." At the hearing before me, perhaps realizing that her first explanation was less than persuasive, she testified that the time that she spent in jail made her realize that it was unfair to incarcerate Cosey for something that he hadn't done. It is possible that Ms. Hutchens only came to that moral insight since she gave her first explanation, but it smacks of a reason provided to please the court. The change is consistent with those which she apparently made on the spot in her account of the events of August 3. She first testified at the hearing that she distinctly remembered the crossfire that killed Williams. A few questions later she admitted that she could not possibly know of her own knowledge whether the gunfire that she had heard was crossfire. At the very least, her recent explanation for coming forward with what she now claims is the truth must be viewed with scepticism.
The evidence which supports her earlier version of the events consists primarily of the testimony of Ortiz, an accomplice to the murder who received a benefit for his testimony. But it is inherently weak. The law looks upon such testimony with great suspicion and requires the trier of fact to treat it with "utmost caution" (People v. Berger, 52 N.Y.2d 214, 219 ; see People v. Moses, 63 N.Y.2d 299 ). Arguably, of the remaining evidence at trial, the location of Williams's body most cuts in favor of the People. The forensic evidence as elaborated upon at the hearing is more favorable to the defense than it is to the prosecution. The anonymous phone call stated that Dushain was the shooter, which was not true according to the People's version of the events. Even if the caller meant broadly that Dushain ordered the killing, that would not necessarily implicate Cosey or Green in the crime. Contrary to the People's position, I do not consider the visit to the morgue to weigh in favor of their theory of the case. The remaining testimony at trial regarding the murder is of relatively minor importance. The remaining hearing testimony provides but weak support of Hutchens's current version of the events.
Ms. Hutchens motivations are far from clear. If she is to be believed now, anger stemming from her kidnapping caused her to testify falsely against Cosey and the others in the grand jury and at trial. Anger and a related desire for revenge thus provided her with a strong motive to lie at that time. But those same emotions could have impelled her to testify truthfully against them. Hutchens has no obvious motive to lie now. There is no evidence before me which permits the inference that one or more of the defendants induced her to come forward for them. Mr. Beldock's telephone call to her seems to have been the first contact that she had with the case since she testified at trial nineteen years ago. The People urge me to infer either that, since the phone call, one or more of the defendants have threatened her to testify favorably for them, or if that is not the case, that she fears the possibility of reprisal because she knows how violent and retributive the defendants have been in the past. I reject those inferences as speculative. It is impossible to infer anything either way from her past relationship with the defendants.
Hutchens never explicitly said that she harbored a desire for revenge, but that emotion seems to have been part of her motivation.
Other Hearing Testimony Regarding Actual Innocence
In early 2006 Cosey wrote to Sarah Wallace, an investigative television reporter. He stated in his letter that he could prove that he had proof that Williams had not been shot but had died following a heart attack. Wallace knew very little about the case, but eventually contacted Chris Ortiz. She told him that she was investigating the Archie Cosey case and the 1993 shooting in Harlem. Ortiz told her that Cosey had not been there, but had come running from the opposite direction to help Bobbit. Wallace later contacted Ortiz again, but he refused to sign an affidavit or submit to a television interview on the basis that doing so might jeopardize his parole. She had the impression, which appears to be have been accurate, that he feared getting involved. Ortiz spoke with the assistant district attorney who prosecuted the defendants' case to report the conversation with Wallace. Ortiz told him that he was frightened that the defendants would discover where he lived.
Ms. Wallace was a credible witness and I do not doubt that Chris Ortiz told her that "Archie wasn't there." It also seems clear to me that he was referring to Williams death, not more generally to the attack on the building. Ortiz knew very well that Cosey in prison for killing Williams, and there was no need for him to tell Wallace that he had not been present during the attack on the building. But his statement is hearsay, and I have no way to test its reliability. For that reason I discount it completely (see People v. Jimenez, 142 AD3d 149, 156 ). Defendant Cosey asks me to draw a negative inference from the fact that the People did not call Ortiz to testify at the hearing. I do not do so, as other testimony establishes that he was fearful and did not want to reveal himself.
The same applies to the hearsay statements of Dushain–Lieutenant Herbert Bryant, which are in accord with the defendants' version of the events.
Yolanda Summers is Cosey's ex-wife and has borne him two sons. In 1993 she lived one block over from the gang's brownstone. In order to get from her building to 162 West 123rd Street it is necessary to cross Seventh Avenue. She testified that on the evening of August 3, she and Cosey had been sitting on the stoop of her building for 30 to 45 minutes when she heard what sounded like firecrackers. Cosey's mother voiced concern about Cosey's brother, Bernard Boulderick who, the mother thought, was in the area where the noise came from. Cosey ran up the block to investigate. He returned two hours later and told her that he had taken Bobbit, who had been shot, to the hospital. The People introduced evidence at the hearing proving that Boulderick was being held in prison on August 3.
Cosey's confirmed that he had been with Ms. Summers's prior to going to the brownstone. He admitted that he may have told Ms. Summers that on the night of August 3 he had left her because of his concern for his brother Bernard. He testified that as he came to the block he saw Bobbit being supported by Ortiz and Dushain. He helped Bobbit into a cab and proceeded to the gang's headquarters. He remembered first seeing a pair of feet, and realized that they belonged to Williams. He saw a drug addict was going through the pockets of the dead man and observed white foam on Williams's mouth. Cosey later checked on Bobbit at the hospital. When attendants soon after brought Williams into the hospital, someone told him that he had died of a heart attack.
Both the Dido/Dino shooting and the attack the next day were witnessed by bystander Donald Anderson, who did not testify at trial but who testified at the hearing before me. Anderson supported himself by selling drugs, but he was not a member of the gang. He observed Cosey running toward the brownstone from the direction of Seventh Avenue (the avenue to the west) after the attackers fired upon the building, and saw Cosey and Ortiz then assist Bobbit into a taxicab. I credit Mr. Anderson's testimony, but it does not prove that Cosey was not present for Williams's death. No one has established an exact time frame for the events of August 3. There is no evidence precluding the possibility that Cosey participated in the murder of Williams, then immediately left the building to see Ms. Summers, and hurried back when he heard the shots being fired in the attack on the building.
Bobbit was granted parole after 12½ years and is currently a maintenance worker. He testified that he has given his life over to God. Bobbit gave an account of the attack on the building, much of which was compelling in its color and detail. He testified that he had been sitting on the front steps of the brownstone eating an evening meal alongside Dushain and Herbert Bryant. He thought it odd that on that hot and humid night the three men he saw turning the corner were garbed in hooded sweatshirts. As he warned Dushain to get a weapon, the three took out guns and began firing. Bobbit ran to the basement alcove to escape the gunfire and realized that he was shot. Dushain, who had come down the interior stairs in response for his calls for help, assisted him up to the main level. There, in front of the front of the hallway, he saw Williams. He was lying on its stomach, convulsing and foaming at the mouth, his body lying at a 45–degree angle to the door. Bobbit first seemed to say that Williams's head was closer to the front door than the inside staircase. Upon being asked by defense counsel to clarify his testimony, he stated that Williams could have been facing the other way, toward the interior stairs. As Bryant and Dushain helped Bobbit leave the building to take him to the hospital, they stepped over Williams body. Upon cross examination, Bobbit was asked by the People whether at that time Dushain directed Bryant to take Williams's body out of the building. When Bobbit answered that he was not 100 percent positive that Dushain had said that, the People attempted to refresh his recollection with an affidavit that he had years before. Bobbit said that he no longer remembered whether that had happened. As he was leaving the building, Bobbit saw Cosey and Ortiz running toward the building, Cosey from the direction of Seventh Avenue, and Ortiz from Lenox Avenue.
Bobbit has submitted many affidavits over the years in support of defendants' version of the events, and several discrepancies, some more troubling than others, exist among them. Other documentary evidence also gives reason to question his account. The People introduced a letter in which he urged Cosey to be patient with his collateral attack on his conviction, and not to accept a guilty plea. Bobbit assured Cosey that after his release from prison, he would come forward and do his utmost to make sure that Cosey prevailed. Cosey would then pursue a lawsuit for wrongful conviction and Bobbit would share in the windfall. Bobbit did not state in his letter that he would be willing to lie on Cosey's behalf, nor did he state anything which on its face suggests that he believed that Cosey was indeed guilty. To the contrary, Bobbit told Cosey that he (Cosey) was absent during the shooting and was therefore innocent. As Bobbit had no need to tell Cosey what he already knew, the statement stands out as unnecessary, unless Bobbit included it for some self-serving purpose.
Analysis of the Actual Innocence Claims
The defendants have not shown that it is highly probable that they are actually innocent of the murder of Williams. The defendants' strongest evidence is the forensic evidence, but although it may raise a reasonable doubt as to how Williams was shot, it does not clearly and convincingly establish that Green did not shoot him in the lobby. The rest of the evidence adduced by the defense falls far short of the caliber required to prove their innocence. Not only is Hutchens's recantation unreliable, but it does not truly exculpate any of the defendants. In fact, much of what she said at the hearing still provides the background facts which support the People's theory of Williams's death, and corroborates the testimony of Ortiz. She placed Green, Dushain and Ortiz and Bobbit at the scene. She heard an argument. She saw Williams's body lying on the floor of the hallway after hearing shots. Assuming that she is now telling the truth, the fact that she did not hear gunshots being fired in the building does not mean that none were fired; if the shots were fired shortly before the shots fired outside building, she might not have realized from her position in the back apartment that they came from a different source. Thus, regardless of its truth, her story does not alone or in combination with any of the other evidence adduced at the hearing prove the actual innocence of Green or Dushain.
Bobbit's first description of the position of William's body, which I believe to be the truthful of the two, and the statement in his affidavit regarding Dushain's instruction to take Williams's body out of the building, strongly militate against the possibility that Williams was shot outside the building. Bobbit's refusal to have the bullet surgically removed from his body serves as serious impediment to accepting his account. Bobbit explained at the hearing that the bullet causes him pain, and that he would like to have it removed, but that doctors informed him that it might do more harm than good to do so. As the People point out, the bullet is not located near a vital organ, and it is hard to believe that Bobbit would not risk its removal if he believed that there was a possibility that it would match the bullet which killed Williams.
Cosey has not established by clear and convincing evidence that he was not present when Williams was shot. He argues that his claim must be true, because there are indications in his plea allocution that he was not fully admitting his guilt, because he asked to withdraw his plea almost immediately, and because he has been arguing from the very beginning of the prosecution that Ms. Summers could provide him with an alibi. Although it is possible to find in his plea allocution small indicia that Cosey had difficulty pleading guilty, they are of the slightest weight, as he ultimately entered a satisfactory plea. It may be that his application at the time of sentence to withdraw his guilty plea was not a ploy engineered to gain an advantage at trial, but only an expression of genuinely held second thoughts about pleading guilty. Neither his regret, nor the realization that Ms. Summers would be willing to provide him with an alibi, however, proves his innocence.
More telling is the fact that the application before Judge Snyder was replete with numerous assertions which he must have known were false. I conclude from it that Cosey was willing to say almost anything if he believed that doing so would serve his purpose. The evidence adduced at the hearing does not persuade me that the case is now otherwise. To the extent that the alibi evidence that he has mustered is trustworthy, it is weak. Donald Anderson's testimony does not preclude the possibility that Cosey was present at the brownstone during the execution, left, and then quickly returned when he heard shots. Assuming for the sake of argument that Hutchens hearing testimony is true, it does not exculpate Cosey either. She stated that she did not see Cosey when she came in, but he might have arrived after she entered her apartment. Similarly, her failure to hear his voice does not prove that he was not there. Even the fact that she did not see him when she opened her door is consonant with the People's theory that he quickly left to join Ms. Summers after Green shot Williams. Bobbit's letter to Cosey, and statements that Cosey has himself made, establish that the two believe that if Cosey succeeds in overturning the murder conviction, they stand to become millionaires. It is possible to infer that Summers would also share in the proceeds of any judgment that Cosey might obtain. The fact that these three share a substantial financial incentive to have the conviction overturned casts further doubt on their testimony. Cosey, of course, also has a nonfinancial interest in having his conviction vacated. The false story about Cosey going to the brownstone because of his concern for Bernard Boulderick also undercuts the testimony of both Cosey and Summers. The evidence weighing in favor of Cosey's claim that he was not present thus consists of weak or untrustworthy accounts. It does not meet the high clear and convincing standard. The applications of Green, Dushain and Cosey to vacate their convictions on the ground that they are actually innocent of the murder are therefore denied.
Analysis of Cosey's claim that the Court and the People deprived him of Bobbit's testimony
Cosey claims that he would have gone to trial had Bobbit agreed to testify on his behalf, and that he was wrongfully deprived of Bobbit's testimony. I reject the argument for several reasons. Not only did Cosey plead guilty before Bobbit did, but there is no evidence that the court or the People ever pressured Bobbit not to testify for the defense. Bobbit may have honestly believed, as he testified at the hearing, that the People were toying with him. It is possible that it appeared to him on November 17 that he was receiving a lighter sentence precisely because he had asserted the day before that he would not testify for the defense. The close juxtaposition of these events could easily have opened the possibility in his mind that, if she were to renege on his assertion, the court and the People would renege on their promise too. At the hearing before me, Bobbit testified that his attorney at the time told him as much, and that he believed that his representation at the Evangelista hearing precluded him from testifying. But there is no evidence that there was any connection, stated or implied, between the outcome of the Evangelista hearing and his sentence, and the People never intentionally did anything to make him fear that they would seek retribution if he testified for the defendants. Their error in offering him an illegal plea offer seems to have been no more than carelessness. Moreover, that Bobbit would not testify for his codefendants was not part of the plea bargain. Despite his belief to the contrary and what his attorney may have told him, if he wished to testify for his codefendants once he had been sentenced, there is nothing that the court or the People could have done to stop him. If Bobbit read anything sinister into the sequence of events, it was his own doing. I therefore find that none of the defendants were wrongly deprived of Bobbit's testimony. As the underlying argument is meritless, Cosey's contention that his attorney was ineffective for failing to make such an argument on his behalf therefore necessarily falls as well. An attorney is not ineffective for failing to make a motion which has little or no chance of success (see People v. Caban, 5 NY3d 143 ).
Analysis of the People's Failure to Disclose Walker's Perjury
The defendants argue that Walker's perjury impaired the integrity of the grand jury. Defendant Green argues that, as it is impossible to know whose version of the events the grand jurors relied upon, and it is possible that they based their indictment upon the perjured account of Walker, the indictment is necessarily infirm. He also argues that it is possible that the grand jury may have utilized Walker's testimony to resolve any doubts that it may have had about Hutchens's credibility. The defendants also argue that the manner in which the People proceeded after they discovered the perjury was improper. The People waited eight months to disclose the matter of the court. In the view of the defendants, the People should have immediately disclosed the perjury and sought permission to represent the murder, if not the entire indictment. Additionally they argue that it was wrong for the People to have omitted from their letter to the court that Hutchens told the grand jury that Walker had been standing near her. They argue that, as Walker had lied about his presence, there was reason to believe that Hutchens had been lying too. The defendants also contend that it was wrong to keep the matter from them entirely. I turn first to the issue whether the perjury itself, apart from the way that the People handled it, impaired the integrity of the grand jury.
Defendant Cosey did not forfeit this argument by pleading guilty. A claim which goes to the integrity of the grand jury process survives a guilty plea (see People v. Dreyden, 15 NY3d 100 ; People v. Hansen, 95 N.Y.2d 227 ).
The People are bound by a duty of fair dealing (see People v. Isla, 96 A.D.2d 789 ; People v. Pelchat, 62 N.Y.2d 97 ). That duty is violated when they obtain an indictment upon evidence which they know is false.
[The Prosecutor] is charged with the duty not only to seek convictions but also to see that justice is done. In his position as a public officer he owes a duty of fair dealing to the accused and candor to the courts, a duty which he violates when he obtains a conviction based upon evidence he knows to be false. Such misconduct may impair a defendant's due process rights and require a reversal of the conviction. It goes without saying that this duty also rests upon the prosecutor during pretrial proceedings and the proceedings relating to indictment both at presentment and afterwards (People v. Pelchat, 62 N.Y.2d 97 at 105 [citations omitted] ).
Thus, where the only evidence supporting an indictment is later determined to be false, the indictment must be dismissed (Id.) If, however, there is additional evidence which sufficiently establishes every element of the charge, dismissal is not required (see; People v. Goetz, 68 N.Y.2d 96 ; People v. Hansen, 95 N.Y.2d 227 ; and see People v. Leary, 305 N.Y. 793 ; People v. Daniels, 2 A.D.2d 882 ; cf. United States v. Basurto, 497 F.2d 781 ). In the context of a grand jury, legally sufficient evidence is evidence which establishes a prima facie case (see People v. Mayo, 36 N.Y.2d 1002 ; People v. Jennings, 69 N.Y.2d 103 ). In this case the People were correct in stating in their letter that the testimony of Janet Hutchens, if credited, independently established every element of the murder charge. Defendants' various arguments and speculations concerning the possibility or manner in which Walker's perjury impaired the integrity of the grand jury proceeding are therefore meritless. Moreover, although Walker's perjury permitted the possibility that Hutchens had been lying, that is not the only reasonable conclusion that could have been drawn. Had the People believed her testimony to be false, they would have been obligated to so inform the court, but there is no indication that such was the case. Additionally, I do not find that they unreasonably believed she had actually witnessed the murder of Williams. It was and remains possible to discount Hutchens's statements about Walker as mere errors, and inconsequential ones at that. I therefore find that Walker's perjury, in and of itself, and in the way it impacted upon Hutchens's account, did not impair the integrity of the grand jury proceedings. The People were therefore not required to represent the murder count. It seems, clear, though, that had the defendants been aware of the perjury, even without knowing of Hutchens's statement that he had been present, they would have moved for representation of the murder count. Several issues then arise: whether the People acted improperly in not highlighting to the court that Hutchens had placed Walker at the scene; whether they acted improperly in not disclosing the perjury to the defense but rather placing the matter in the hands of the court and urging her to keep the matter from them; whether the defendants' Brady rights violated in this stage of the proceedings in any way.
In regard to the grand jury presentation, I find that the People properly handled their obligations to both defendants and the court after they discovered Walker's lie. They reasonably believed that to inform defendants that Walker had testified against them might possibly put his life in jeopardy. The gang was vindictive and had no qualms about resorting to violence for lesser offenses than Walker's. Additionally, as detailed in the People's 1998 letter to the court, the organization had attempted to kill a complaining witness in a previous prosecution, and authorities had intercepted communications from Dushain expressing his intention to kill any grand jury witnesses who had testified against him in the present one. It is not uncommon for the People to seek a protective order for information that they would otherwise be obligated to provide to the defense (CPL 240.50, CPL 200.95 [7 ] ). Where there is a possibility that the well-being of a witness will be endangered by disclosure, the court is empowered to grant the order. It may also delay or limit disclosure (see, e.g., People v. Contreras, 12 NY3d 268 ). I also find the People did not act wrongly in not alerting the court to Hutchens's statements regarding Walker. They had no duty to cast doubt on their own evidence (see People v. Lancaster, 69 N.Y.2d 20 ). The court was capable of appreciating the problem without their help, as it had sufficient information in its possession to gauge whether re-presentation was warranted, and whether disclosure of the perjury was required at that time. I reject the argument that the People attempted to hide the Walker–Hutchens issue from the court. Although the fact that Hutchens had placed Walker with her could easily have been lost in the over fourteen hundred pages of grand jury testimony, the People supplied a separate transcript of Hutchens's testimony with their letter. The transcript amounted to no more than 60 pages, only 10 of which related to the murder. In doing so, they effectively highlighted the issue without making the defendant's argument for them. The People reasonably assumed that Hutchens's statement would not escape the notice of the court. As the possibility of danger to Walker was real, the court did not abuse its discretion by withholding the information from defendants for the time being.
Defendants Green and Dushain additionally contend that by withholding the fact of Walker's perjury from them through the trial, the People denied them due process. Their argument is as follows: They were aware that Hutchens had testified in the grand jury that Walker had been standing near her as she witnessed the murder. They heard her testify at trial that she had once believed that Walker had been present during the murder too, but that she now realized that such was not the case. She now believed that she had seen him only outside the building, and that he had nothing to do with the events in the lobby. To some extent the defendants successfully impeached her on her assertion that Walker had been present outside, as the jury heard a stipulation that Walker had been in jail the day that Williams had been murdered. She was thus shown to have been mistaken on an inconsequential detail of her narrative, but nothing more. But knowing that Walker had also told the grand jury that he had been in the lobby during the murder-an assertion which was clearly a lie-amplifies the importance of Hutchens's assertions about Walker manyfold because it suggests that she was lying too. Between the grand jury presentation and trial Hutchens altered her testimony as to one point only-the presence of Walker. The fact that she had changed her story in this one respect was itself curious, and more so because its timing followed the People's discovery that Walker had not been present. The defendants argue that they would have had a field day suggesting to the jury that when the People or the police believed that Walker had been present, they had coached Hutchens to conform her account to his. Or perhaps she had merely made up the matter herself, as she had made up everything else in her story. Whichever was the case, when it became clear that Walker had been incarcerated that evening, Hutchens was either told to alter her account to remove Walker from the scene, or was simply informed of Walker's incarceration so that she would do so on her own. The extent to which she had been actively persuaded to change her story did not matter; she was a liar either way. As her testimony could not be trusted on this point, the jury could not believe that she had seen anything whatever. Most important, the jury could not convict the defendants of the murder if they did not believe her. Although Ortiz also testified that the defendants had killed Williams, he was an accomplice as a matter of law. As the People concede, without Hutchens's corroborating, eyewitness account, the jury could not have convicted them of the murder (CPL 60.22 ).
The defendants were not permitted to elicit that she had testified that Walker had been standing at the same door that she had.
The People also concede that Walker's perjury could have been used to impeach Hutchens, but argue that it was a fact of little value, as the defendant had already impeached Hutchens on the basis that she had been mistaken about his presence. They also stress that the hearing testimony established that they did not coach her, but rather instructed her to tell the truth. They argue that they did not wrongfully suppress the information, but adhered to the court's ruling which permitted them to withhold it from the defense. They also contend that if the defendants had implied that the prosecutor had coached Hutchens, they would have sought to introduce prior consistent statements given by Hutchens dating back five years which implicated the defendants in the murder.
A defendant has the right to discover favorable information in the possession of the state that is material his guilt or punishment (Brady v. Maryland, 373 U.S. 83 ; Giglio v. United States, 405 U.S. 150 ; People v. Vilardi, 76 N.Y.2d 67 ). This right extends to material evidence which impeaches a key prosecution witness (United States v. Bagley, 473 U.S. 667 ; United States v. Giglio, 450 U.S. 150; People v. Baxley, 84 N.Y.2d 208 ). In order to establish a Brady violation, a defendant must show that the evidence in question is either exculpatory or impeaching, that it was intentionally or inadvertently suppressed by the state, and that prejudice thereby resulted (see Strickler v. Greene, 527 U.S. 263 ). Under New York law, prejudice ensues to a defendant who has made a specific request for the information which has been withheld when there is a reasonable possibility that non-disclosure has affected the verdict (see People v. Vilardi, 76 N.Y.2d 67, 77 ).
The People do not argue that the material in question does not fall within the discovery and Brady requests made by defendants. The defendants could not possibly have made a more specific request in this instance.
That the court granted the People's application to withhold the Walker's perjury from the defense does not mean that no Giglio violation occurred. Where, as here, the decision to keep information from the defense is made not by the People, but by the court following an in camera examination of the information, the court is given discretion to deciding whether the information should be disclosed (see People v. McRay, 23 NY3d 193, 198 ). The court must weigh a defendant's interest in obtaining the information against any contrary interests (Id.) In McRay the information at issue was contained in the complainant's medical records. The only countervailing interest was maintaining confidentiality. In that case the Court of Appeals held that the defendant's interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal.
As the Court of Appeals found that the medical records were cumulative, and of little value, it held that the trial court had not abused its discretion in withholding them from defendant.
I recognize that, unlike the case in McRay, there was more at stake in this case than maintaining the confidentiality of medical records. The People point to no authority, however, which permits withholding Giglio material from the defense indefinitely on the ground that disclosure potentially created a danger to someone. The Court and the People no doubt had honest concern for Walker's safety, but that had to be weighed against the defendants' right to a fair trial. At some point the defense had to be told that there existed material impeachment material relating to one of the People's two primary witnesses. In this case that point came when Hutchens was about to testify (see People v. Cortijo, 70 N.Y.2d 868 ). The People apparently never explored with the court whether there were safeguards that could be taken to protect Walker, and there was no evidence presented at the hearing before me that it would have been difficult to do so. I note too, that, although the People may have had legitimate concern for his safety, Walker's predicament was of his own entirely of his own making. He voluntarily gave false testimony against the defendants. As a member of the gang himself, he certainly knew better than most that if they ever discovered that he had testified against them, he would gain their enmity and expose himself to their retribution. As far as he knew, unless every one of the defendants named in the indictment pleaded guilty, that would inevitably come to pass, as he had every reason to believe that the People would also ask him to testify in open court. Had the People not discovered that he had been incarcerated on August 3, 1993, he would have taken the witness stand at trial. There had been no need for him to put himself in such a position; he had not witnessed a murder, and had lied for no reason except the promise of personal gain. He therefore knew the risk that he had been taking.
I also reject the argument that the Walker perjury was not material. Hutchens was one of two key prosecution witnesses to the murder. As defendants argue, that she had been mistaken about Walker meant almost nothing, but the case would have been quite different had the jury believed that she had intentionally lied. The jury would not have had great difficulty reaching the latter conclusion had it only known of Walker's perjury. There may have been no connection between the People's discovery of Walker's perjury and the change in Hutchens's story, but the coincidence of these events looks suspicious, and it would have provided potent fodder for the defense. Hutchens was not a strong witness to begin with. Although she was somewhat sympathetic, she appeared to be of weak moral character. Painting her as a liar would not have been difficult. Had the jury believed that she had lied about Walker, they might well have dismissed her entire account of the murder. It does not matter that the People established at the hearing before me that they acted properly in regard to Hutchens, as none of that evidence was adduced at the trial. Had the People successfully introduced similar evidence at the trial, or introduced her prior consistent statements about the event, the defendants could still have persuaded the jury that Hutchens's testimony was untrustworthy. They could have as easily argued that, vindictive after her kidnapping, she had concocted a lie which she maintained for five years, and that having somehow independently learned about Walker's imprisonment, she had changed a detail to keep the falsehood alive. In the light of Walker's perjury, there was ample reason to question her credibility, and if the jury did not credit her account, they could not have found the defendants guilty of the murder upon Ortiz's testimony alone. As I find that there is a reasonable possibility that the outcome of the trial would have been different had the defendants been able to capitalize upon the perjury, Green's and Dushain's motions for vacatur of the murder count are granted.
Defendant Cosey contends that he is entitled to have his conviction vacated on this ground. He argues that, had he known of this weakness in the People's case, he would not have pleaded guilty. The argument is meritless. As Walker's perjury did not exculpate the defendants, but was only important insofar as it gave reason to discredit Hutchens, the People were not required to disclose it prior to calling Hutchens to the witness stand. As noted, concern for Walker's safety also weighed against earlier disclosure. Cosey pleaded guilty before the trial of Green and Dushain. The People were therefore not obligated to disclose the perjury to him prior to his plea (People v. Halloway, 33 AD3d 442 ; United States v. Ruiz, 536 U.S. 622 ; People v. Jones, 44 N.Y.2d 76 ). Cosey's application to vacate his murder conviction on Brady/Giglio grounds is therefore denied.
Ineffective Assistance of Counsel
A criminal defendant has a right to effective representation under both the Sixth Amendment of the United States Constitution and the New York Constitution. Under the Federal test enunciated in Strickland v. Washington (466 U.S. 668 ), an individual must show that his attorney made errors "so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment (id. at 687 ). The defendant must demonstrate that the attorney's performance fell below am objective standard of reasonableness under prevailing professional norms (id. at 688.) Second, the defendant must show that the deficient performance prejudiced the defense" (id. at 687 ), or, in other words, that there is a reasonable probability that, but for the attorney's errors, the result would have been more favorable to the defense (id. at 694 ). A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome (id.).
The State standard does not require a defendant to fully satisfy the Strickland prejudice test (see People v. Stultz, 2 NY3d 277, 284 ). New York applies a flexible standard, under the theory that what constitutes effective assistance varies according to the circumstances of each case and representation (see People v. Benevento, 91 N.Y.2d 708, 712 ). Under the State Constitution the focus is on the fairness of the proceedings as a whole (id. at 714 ). The core inquiry is whether the defendant has received "meaningful representation" (People v. Baldi, 54 N.Y.2d 137 ). "So long as 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, the constitutional requirement will have been met" (id at 147 ). Trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness (id at 146–147 ). Under the Baldi, "meaningful representation" standard a defendant must show that there was no "strategic or other legitimate explanation" for defense counsel's allegedly deficient conduct (see People v. Rivera, 71 N.Y.2d 705, 709 ).
Defendants Green and Dushain fault their trial attorneys for failing to consult and call a forensic pathologist and a ballistics expert. The Court of Appeals has observed that it is very rare that an attorney's strategic decision not to present expert testimony amounts to ineffective assistance of counsel (see People v. Caldavado, 26 NY3d 1034, 1036 ). But a defendant's right to representation entitles him to have his attorney "conduct appropriate investigations ... to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial" (People v. Bennet, 29 N.Y.2d 462, 466 ; see People v. Droz, 39 N.Y.2d 457, 462 ). Once Ortiz testified, the defense should have realized that his description of the shooting was difficult to reconcile with the medical testimony, and that it would be advisable to consult with an expert to develop the defense that the testimony suggested. Moreover, the defense had no strategic or other legitimate reason in this case for not consulting a forensic pathologist (see People v. Cassala, 130 AD3d 1252 ). This is not a case where it is speculative to believe that an expert might have reached a conclusion which is substantially different from the scenario urged at trial (cf. People v. Venkatesan, 295 A.D.2d 635, People v. Bank, 129 AD3d 1445 ). The defendants demonstrated at the hearing that their counter theory was as viable as that of the People, if not more so. Nor was it a question of time or opportunity, or that the flaw in the People's presentation was easily missed. The defense heard Ortiz give his account of Williams's death on October 22, 1998. The medical examiner testified on December 1. Defense counsel likely had the Williams autopsy report well in advance of that date, but even if they did not, it should have immediately struck them that Ortiz's account did not easily agree the medical examiner's findings. This was not a subtle point. As the People recognize in their brief, it is obvious even to a lay person that the path of the bullet makes it impossible for Williams to have been shot on his knees, his torso vertical and his arms out in supplication. Yet that is how Ortiz's testimony is most readily understood. The defense did not rest until January 4, 1999, more than a month later. Defense counsel thus had ample time to hire an expert to investigate this incongruity and develop a defense along those lines. Thus, the failure of defense counsel for Green and Dushain to consult with an expert is inexplicable given the facts in their possession (see People v. Cassala, 130 AD3d 1252 ).
The attorneys did not call an expert at trial, and there is no evidence that they consulted with one either. As both attorneys were paid with public funds, had they wished to consult with an expert, they would have had to have submitted an order authorizing the appointment of one. There would be records authorizing compensation as well. The defense represents that after diligent search they have found no such records.
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Although the forensic evidence does not establish the defendants' actual innocence by clear and convincing evidence, it would have created a formidable obstacle to a guilty verdict, had the defense only directed the jury's attention to it. It takes considerable imagination and no care for linguistic rigor to reconcile the bullet path with Ortiz's description of the position of Williams's body. In contrast, it appears that the path could easily have been produced had Williams been shot from across the street. The People contend that if Williams had been shot from fifty feet away during the attack on the building, the attackers' gunfire could only have been produced the bullet path had Williams been bent over almost 90 degrees. Although the angle which they held their guns surely also helped determine the path, as Green's ballistics expert testified, and as common sense suggests, it would have been natural for Williams to have bent himself over as much as possible under the circumstances. The assistant district attorney who tried the case repeatedly testified that Ortiz told or demonstrated to him that Williams's upper torso was prostrate, i.e., flat or nearly flat, on the floor. If that is so, Green must have shot Williams with his gun very close to the floor, or at a very low angle. To do so he would likely have had to crouch, or get on the floor himself, or perhaps bend his body at the waist. A person trying to achieve a difficult shot on a billiards table might adopt such an awkward position, but it would have been very strange for Green to have attempted something so seemingly unnecessary in trying to shoot Williams. Yet, if Williams's upper torso was nearly flat on the floor, there seems to be no other way for the bullet path to have been produced.
Had the defendants' trial attorneys consulted with and called a forensic medical expert, they would have been in a firm position to effectively challenge the People's version of Williams's death. Just as the defendants' expert did at the hearing before me, such an expert could have shown that the forensic evidence contradicted the account of the only witness to describe the shooting in detail, and that it rather supported the defendants' version of the events with relative ease. Defense counsel made no such argument at trial. There is no strategic or tactical explanation for that lapse. Making the argument would not have undercut any of their others. In fact, it would have complemented the argument that Ortiz and Hutchens were liars. The force of the argument would, in turn, have been magnified by the fact that the People's primary eye witness was an accomplice to the crime as a matter of law who was receiving a benefit for his testimony, and whose testimony, the jury was told, had to be corroborated. Had the defendants also been in a stronger position to argue that the corroborating witness, Hutchens, was lying, as would have been the case had they been informed of Walker's perjury, there is an even greater likelihood that the jury's verdict on the murder count would have been different. Defendant Green's and defendant Dushain's motions to vacate their convictions on ineffectiveness-of-counsel grounds is therefore granted. Defendant Cosey's motion to dismiss his conviction on this ground is denied, as he did not go to trial. His attorney was not ineffective for failing to consult with an expert prior to Cosey's guilty plea. The medical examiner's report alone could not have sufficiently alerted the attorney to the weakness in the prosecution's theory of the murder. That was only apparent when Ortiz testified at trial.
Accordingly, defendant Greens's and defendant Dushain's applications to vacate their convictions for the murder of James Williams on ineffectiveness and Brady grounds is granted. Their applications are otherwise denied. The application of defendant Cosey is denied in its entirety.