People v. Jones

Full title: The PEOPLE of the State of New York, v. Robert JONES, Defendant.

Court: Supreme Court, Queens County, New York.

Date published: Sep 15, 2014

998 N.Y.S.2d 307 (N.Y. Sup. Ct. 2014)

Opinion

No. 4811/1994.

09-15-2014

The PEOPLE of the State of New York, v. Robert JONES, Defendant.

Gibson, Dunn & Crutcher LLP, New York (Christopher M. Joralemon, Goutam U. Jois and Darcy C. Harris, of counsel) and Thomas Hoffman, P.C., New York, for defendant. Richard A. Brown, District Attorney of Queens County (Robert J. Masters and Ushir Pandit, of counsel) for plaintiff.

JOSEPH A. ZAYAS, J.

Gibson, Dunn & Crutcher LLP, New York (Christopher M. Joralemon, Goutam U. Jois and Darcy C. Harris, of counsel) and Thomas Hoffman, P.C., New York, for defendant. Richard A. Brown, District Attorney of Queens County (Robert J. Masters and Ushir Pandit, of counsel) for plaintiff.

Opinion

JOSEPH A. ZAYAS, J.

According to defendant's current team of attorneys, this contentious post-conviction litigation “is about a man the justice system .... failed.” They vehemently argue that defendant is an “innocent man [who] was wrongly convicted of murder in a terrible miscarriage of justice” because of “false eyewitness identification[s]” (which now have been recanted), misconduct by the prosecutor and law enforcement officials, and the ineffective assistance of counsel.They claim that the “resulting injustice” to defendant “continues today uncorrected”—such that “[e]very day that goes by is another day that Mr. Jones spends in prison for a crime that he did not commit.” This is why, according to defense counsel, this Court “must vacate Mr. Jones' conviction.”

The People, matching the defense's dramatic rhetoric in this litigation, have argued, just as vehemently, that defendant is guilty and was properly tried and convicted of murder, and that the newly discovered evidence claims, the ineffective assistance of counsel claims and the various claims of misconduct are “desperate,” “outlandish” and meritless. The People also complain about the fact that the good name of law enforcement officials and prosecutors could be so easily besmirched by the simple expedient of filing a post-conviction motion “based upon the sheerest speculation”—reflecting “a troubling trend affecting [the legal] profession.”

Defendant's post-conviction motion places squarely on this Court's shoulders the “solemn responsibility” to “determine as best [it] could where the likelihood of truth lay,” at least as it relates to the recantation testimony (People v. Shilitano, 218 N.Y. 161, 180–181, 112 N.E. 733 (1916) (Cardozo, J., concurring). In considering the motion, the Court has reviewed and re-reviewed, in painstaking detail, the voluminous pleadings submitted by the parties in this litigation, the voluminous trial record, as well as the voluminous record of the CPL 440 hearing, including numerous exhibits and the testimony of ten witnesses who testified over a nine-day period. Upon this exhaustive comprehensive review, the Court finds that the newly discovered recantation evidence is not “true” (Shilitano at 170, 112 N.E. 733 ), and lacks “inherent believability” (People v. Wong, 11 A.D.3d 724, 725, 784 N.Y.S.2d 158 [3d Dept 2004] ), and therefore cannot “destroy the basis upon which the judgment of conviction rests” (Shilitano at 170, 112 N.E. 733 ). Because the Court also finds that defendant otherwise failed to demonstrate that he is actually innocent, that he received the ineffective assistance of counsel, or that law enforcement officials or the People engaged in any misconduct or committed a Brady violation, the motion to vacate the judgment of conviction is denied in all respects.¹

1 The Court issued a short order denying the motion to vacate on September 10, 2014.

The Court recognizes that when an accused, innocent or not, is wrongfully convicted, a grievous wrong is committed not only against the accused but against the whole criminal justice system because, inter alia, the public's confidence in the administration of justice is seriously undermined. In this case, however, defendant was not wrongfully convicted and there was no miscarriage of justice. On the contrary, defendant received a fair trial while he was represented by an experienced attorney who provided meaningful representation and the effective assistance of counsel. And, in this case there is no good reason to think that an innocent man is in jail.

The CPL 440 Claims and the Court's Interim Orders

In 1996, a jury convicted defendant of murdering Antoine Stone. Nearly twenty years after the murder, defendant moved pursuant to Criminal Procedure Law §§ 440.10(1)(b), (c), (d), (f), (g) and (h), to vacate his judgment of conviction. Defendant sets forth numerous claims challenging the judgment of conviction, including an actual innocence claim; a newly discovered evidence claim involving recanting witnesses who alleged prosecutorial and law enforcement misconduct; related Brady/Rosario claims; an ineffective assistance of counsel claim based upon trial counsel's failure to move for a mistrial when a detective blurted out at trial that the shell recovered from the crime scene matched the shell recovered from another homicide (the Rivera homicide); and a Brady claim related to the People's failure to disclose documents or information from the earlier unsolved Rivera homicide.² The People opposed defendant's motion, arguing that defendant's claims were subject to mandatory procedural bars and were otherwise without merit. The People also argued that if the Court were inclined to conduct a hearing it should do so for the limited purpose of examining the credibility and reliability of the allegations in the recanting witness' sworn affidavits.

2 Defendant originally claimed that the People did not disclose the ballistics match document itself until the middle of trial but later withdrew that claim and conceded that the People did in fact disclose that document prior to trial.

In an interim order, the Court granted defendant's motion only to the extent of ordering a hearing to examine the following issues: (1) the claim of alleged misconduct by law enforcement; (2) the claim of a Brady violation inasmuch as it was alleged that the prosecutor failed to disclose information to the defense that indicated that prior to trial one of the witnesses stated that she was unable to identify defendant as the perpetrator; (3) the claim of a Rosario violation inasmuch as it was alleged that the prosecutor failed to turn over records and an audio-tape of the investigating detectives' interview with the witness who alleged that she told law enforcement that she could not identify defendant as the perpetrator; (4) the claim of newly discovered evidence as it related to the recantation of trial testimony inasmuch as the recanting witnesses disavowed their testimonial observations and identifications of defendant; and, (5) the claim of ineffective assistance of counsel as it related to counsel's failure to seek a mistrial after one of the investigating detectives blurted out at trial that the shell recovered from the crime scene matched a shell that was recovered from an unsolved murder (see Order dated September 11, 2013).³

3 In the Order, the Court denied as premature defendant's Brady claim regarding the failure to disclose documents or information from the earlier unsolved Rivera homicide inasmuch as the investigation in that case was still open and on-going and it was unclear whether the file in that case had any exculpatory value. The claim, however, has been resurrected after the Rivera file was reviewed in camera.

Although defendant failed to properly notice in his Notice of Motion an additional ineffective assistance of counsel claim premised on counsel's failure to investigate, the Court, taking into consideration the Court of Appeals decision in People v. Oliveras, 21 N.Y.3d 339, 971 N.Y.S.2d 221, 993 N.E.2d 1241 (2013), exercised discretion to grant defendant's application to expand the scope of the CPL 440 hearing to determine whether counsel's failure to investigate a narcotics notebook recovered from an area next to the deceased, and his failure to investigate the aforementioned ballistics report, constituted the ineffective assistance of counsel (see Order dated February 4, 2014). Defendant also moved for disclosure of the Rivera homicide file, which motion the People initially opposed on the ground that the unsolved murder was still an open and “active” investigation. Following the CPL 440 hearing, however, the Court, with the consent of the parties, conducted in camera proceedings related to the Rivera file, reviewing it for the presence of possible Brady material. At its conclusion, the People, at the Court's request, disclosed several documents from the Rivera file to the defense, including documents indicating that a fingerprint lifted from a public boardwalk railing at the Rivera homicide was compared to defendant's fingerprint with negative results. Defendant contends that these documents, together with the ballistics link documents, constitute Brady material which the People failed to disclose prior to trial.

Pursuant to CPL 440.30(7), the Court now sets forth its findings of fact, its conclusions of law and the reasons for its determination denying defendant's motion to vacate the judgment on the grounds of actual innocence, newly discovered evidence, Rosario and Brady violations and the ineffective assistance of counsel.

Pre Trial Proceedings

In preparation for trial, defense attorney Barry Turner filed an omnibus motion seeking to, among other things, suppress defendant's many prejudicial statements, extremely prejudicial physical evidence and identification testimony. Counsel also moved to preclude the People from cross-examining defendant about his previous record, which included convictions for the sale of a controlled substance and criminal possession of a weapon. Because counsel made these applications, a court ordered a Mapp/Huntley/Wade/Dunaway hearing.

At the suppression hearing, counsel challenged the suggestiveness of the identification procedures (i.e., the photo arrays and the lineup identifications), the voluntariness of defendant's statements, as well as the propriety of defendant's warrantless arrest outside of his apartment. Defense counsel also challenged the execution of the search warrant that led to the recovery of a Ross bike, ammunition, a BB-gun, a gun cleaning kit, and a gun holster.

The Trial

Trial Counsel's Opening Statement

In Turner's opening statement to the jury, he argued that the case against defendant was “frought with reasonable doubt” [sic].That doubt, according to counsel, stemmed from two unreliable identifications of defendant. In this regard, counsel suggested that “it was so dark” that “no one could be certain of what they saw.” Specifically, trial counsel told the jury that Joan Purser's testimony would not provide any evidentiary value because she was uncertain now, and then, of the identity of the perpetrator. As to Philip Englebert, trial counsel stated that his identification testimony would be “totally irrelevant” because “whatever ID he made of a person on a bike was so distant, both in distance and time .” Finally, counsel told the jury that he would demonstrate that “Robert Jones was in no way involved in this.”

Joan Gennace–Purser

Joan Purser testified that in 1994 she lived on the second floor of a private house located on Mott Avenue between Dickens and Eggert streets, in Far Rockaway, Queens. At approximately 12:10 a.m., on September 10, Purser, who was almost six months pregnant, was not feeling well so she went to her bedroom window to get fresh air. Purser testified that through her opened window, she observed “two guys,” one of whom possessed a bicycle, standing approximately twenty to twenty-five feet from her window “on [her] side of the street,” next to her driveway. The men were “speaking, turning and talking” on the street which “was very bright and clear.” At one point, Purser saw the man with the bicycle remove his hood from his head and turn his eyes to look up at her.

Thereafter, the man with the bicycle walked away from Purser's side of the street, crossed Mott Avenue and stood in the street next to some parked cars, as another man was walking from the direction of Eggert Street on the sidewalk.When that individual was about fifteen feet away from the man with the bicycle, Purser heard “two pow-pows” and saw a “flash” of light. Purser then saw the man with the bicycle walk back to her side of the street, rejoining the other man who then shoved the man with the bicycle. Purser testified that it was during this scuffle that the man with the bicycle looked up at her for a second time. The man with the bicycle then rode his bike onto her driveway and hit a parked car, setting off an alarm. At that point, both men “took off,” but Purser did not testify as to the direction in which the men went. Purser testified that she was at her bedroom window for twenty to twenty-five minutes and that she watched the two men for between ten to fifteen minutes.

On September 30, 1994, detectives drove Purser to the 101st Precinct, telling her that they were taking her to view a lineup. When the prosecutor asked Purser if the detectives told her anything else during the car ride, she said “No.” Purser testified that at the lineup she recognized “number four,” who was defendant. When the prosecutor asked Purser what she said to the detectives about number four, she made the following statements: “I said it's [sic] looks like the guy that was standing at the window there;” “I said it looked like the guy standing at the window and across the street that went across the street with the bike;” and “I said that it looks like the guy I saw in the—looks like the guy that was on the bike, the face and the body shape.”

Purser also testified that the man with the bicycle was wearing a white long-sleeved shirt with a hood that covered his head. When the prosecutor asked Purser whether she saw the man's face, she said, “Yes, I can recognize, maybe not one hundred percent, sure, yes,” indicating that she also had an opportunity to see the man's head and hair. Purser then gave a detailed description of the “black” man who she had seen on the bike by stating that he was “maybe twenty, twenty-five” years old, “[h]e was wearing a short haircut, cut very low, very, very low. He had a medium built body, a fair complexion, not that dark, and a little fairer than me.”

When the prosecutor asked Purser if she saw the man with the bicycle in the courtroom, she said “Oh God” and “[t]he face looked like the face over here.” On re-direct examination, Purser was again asked if she saw the man with the bicycle in the courtroom. In response, she said “[t]his guy over here, the face wants to look like.” When the prosecutor asked Purser what she meant by that, she said:

The face that I saw in the line-up, and the face when I went—the guy, that was standing at the window there and when I went to the lineup and I looked at the face, through the peephole, the face, the appearance of the face that I was seeing at the window there, looks like the same guy that I saw at the lineup.

The prosecutor then asked Purser if the man in the courtroom was the same person that she saw from her window. She said, “[h]e wants to look like him, yes, the face—oh, God.” The prosecutor also asked Purser how the man in the courtroom differed from the man she saw from her bedroom window. She replied,

The hair was much shorter. The hair cut was down, more shorter down, I'm not one hundred percent sure that's the face. I wasn't like I was staring at the person there, that I saw at the window, that I saw in the line-up.

She then said, “[i]t brings back, like I saw in the line-up there, that same face.”

On re-cross examination, Purser testified that although she was not “one hundred percent” certain that defendant was the person she observed from her window, she was certain that defendant looked like the person she had identified in the line-up. On re-re-direct examination, however, Purser then identified defendant as the guy who had looked up at her twice, only to, on re-re-cross examination, later agree with defense counsel that she was not “one hundred percent” certain. Purser's equivocation aside, Purser never testified at trial that the detectives or the prosecutor did anything improper during the investigation or the identification procedures.

Josue Rodriguez

Josue Rodriguez testified that on September 10, 1994, he lived with his sister in a private house located on Mott Avenue between Dickens and Eggert streets in Queens County. At approximately 12:15 a.m., Rodriguez, who was watching television with his one-year old nephew, heard “two shots.” Rodriguez took his nephew to his sister's room and then went to a window in the house that faced Mott Avenue. The prosecutor asked Rodriguez, “[w]hen you looked outside, did you see anything?” In response to this open-ended question, Rodriguez said that he “saw a man in the middle of the street zig-zagging back and forth saying something loud.” Rodriguez testified that when he saw the man collapse to the ground at the corner of Mott Avenue and Eggert Street, he went outside and asked the man if he was alright. The man looked at him and said, “I was preaching to a drug dealer on a bike and he shot me. Why did he shoot me? Why?” The man's speech was “very excited” and he spoke “like he was scared.”

Rodriguez never testified at trial about seeing a man on a bicycle riding toward Dickens Street.

Philip Englebert

Philip Englebert, a custodial worker who had a 9th grade education, testified that at approximately 12:15 a.m., on September 10, 1994, he was getting off the “A” train at the Mott Avenue subway stop. At the corner of Mott Avenue, Englebert saw several police cars and a short time later saw an ambulance. When Englebert got to Mott Avenue and McBride Street, he passed a man on a bicycle, who was “racing and scared like he was trying to get away from something.” Englebert admitted that when he was asked in the grand jury if the man was racing, he said that the man on the bike was going “normal speed.” Englebert testified that his vision was “normal, 20/20,” and that there was “nobody” and “nothing” in between him and the bicyclist, and that he observed the individual for approximately five seconds. Englebert later talked to a police officer and described the man on the bike as a dark skinned man, who could have been male black or Hispanic, with short hair and a slight mustache and beard. Englebert also testified that the man was wearing a dark shirt that was opened and a white T-shirt underneath.

Englebert testified that on September 30, 1994, detectives went to Englebert's house and told him that they were going to drive him to the 101st Precinct to look at a line-up. When the prosecutor asked Englebert if the detectives told him anything else during the car ride, Englebert said “No.” With regard to the photograph that was taken of the line-up, Englebert testified that he identified defendant as the bicyclist because he recognized defendant “[f]rom the night, that's the guy that past me that night.” When the prosecutor asked Englebert if he saw the individual who had passed him on the bicycle in the courtroom, Englebert identified defendant without hesitation, indicating “[t]hat's the man that past me on the bike; I'm certain.” Englebert never testified, or even hinted, at trial that the police pressured him in any way to identify defendant as the man on the bicycle.

When the prosecutor asked a specific question about the bicycle, Englebert said, “all I observed about the bike, it was blue and white and it had black handle bars.” The prosecutor later showed Englebert a photograph of a bicycle, which he identified as “the bike I seen that night.” When the prosecutor asked Englebert to clarify that statement, he said, “its color, blue, white, and it had a Ross' on it.”⁴ Englebert further testified that the bicycle in the photograph was “the bike that the man was riding when he past me; that's the night of the shooting,” and “that's the bike I seen the man ride.” When pressed by defense counsel, Englebert said that is the “actual bike I seen,” “that's the bike I seen him riding,” and that the bicycle in the photograph was the “exact bike.”

4 This was the first and only time that Englebert mentioned the name of the bicycle manufacturer. Moreover, the prosecutor never asked Englebert a single leading question about the bike manufacturer during trial.

Motion In Limine

Following the testimony of Purser, Englebert and Rodriguez, the People, recognizing that identity had not been conclusively established by other evidence in the case, made a Molineux application seeking to have defendant's conviction for criminal sale of a controlled substance introduced into evidence to help prove that defendant was a “seller” and that he could have been the seller to whom Stone referred in his dying declaration. Defense counsel opposed the application, persuading the Court to deny it. The People also sought permission from the Court to introduce on direct examination of Detective Gerald Weiser several statements defendant had made to the detective. Defense counsel again challenged the prosecutor's motion, arguing that the statements lacked relevance and were extraneous to the issues in the case.

After considering the parties' arguments, the court ruled that the first statement (i.e., “I know why you're here. I did not kill Antoine Stone”) was admissible inasmuch as the judge who presided over the Huntley hearing had previously made that determination. Although the Court allowed the investigating detective to testify that defendant said that a .380 was his weapon of choice and that he had “a familiarity with Mr. Stone because of the subject of drugs,” the Court “did not permit ... Detective Weiser to testify to the gun or shells found in the apartment.” Nor did the court permit the Weiser to testify that defendant said, “if you came here a week earlier you would have found six guns.” The Court also precluded defendant's statement that he had stolen jewelry from Stone's older brother four years prior.

Detective Gerald Weiser

Detective Gerald Weiser testified that on September 10, 1994, he commenced an investigation after observing Stone, who appeared to have a wound in his abdomen, “being assisted by ambulance technicians,” on the corner of Mott Avenue and Dickens Street, which was well lit. On September 29, 1994, at approximately 10:15 a .m., Detective Weiser arrested defendant, who, immediately after his apprehension, and without prompting, said “I know why you're here. I didn't kill Antoine Stone.” The arrest occurred outside of defendant's Manhattan apartment where Detective Weiser recovered a “blue Ross mountain bike.”

Detective Weiser further testified that after arresting defendant, Weiser brought him to the 32nd Precinct, where he advised him of his Miranda rights. Detective Weiser testified that when he asked defendant about the homicide, defendant told him that he was not in Far Rockaway on the night of the murder and that he knew Stone four years ago when defendant was having a crack problem. Thereafter, Detective Weiser testified that defendant told him that he had a homosexual affair with Stone, who would “suck his dick for money, for crack.” Defendant also told Weiser that he heard about Stone's murder from Edward Lawson, who had been in the apartment at the time of his arrest.

Detective Weiser testified that after he later re-read defendant his Miranda warnings, defendant told him that on the night of the murder he had been with his girlfriend, Amira Grant. According to defendant, his girlfriend arrived at his apartment at about 6:30 p.m.; he went by bicycle to City College to pick up his paycheck at approximately 8:00 p.m.; and he picked up food and returned to his apartment between 8:30 p.m. and 9:00 p.m. According to defendant, he stayed in his apartment with his girlfriend for the rest of the night. Detective Weiser also testified about a conversation he had with defendant regarding guns. When the prosecutor asked Weiser what defendant said to him, Weiser said, “[h]e stated to me that he liked 45s but his weapon of preference is a .380.” Detective Weiser testified that defendant told him that he and his uncle had sexual affairs with Stone but that he was now straight. Detective Weiser also testified that Purser and Englebert identified defendant in a police arranged line-up, each witness taking seconds to make the identification, and that he collected pedigree information from defendant who gave two addresses—one in Manhattan and the other in Far Rockaway, Queens (his mother's address).

On cross-examination, defense counsel strenuously challenged the Weiser's testimony about the lighting conditions at the crime scene, inasmuch as the detective also admitted that “he was not there” at the time of the shooting. He also questioned Weiser about Englebert's description of the man on the bicycle. According to Weiser, Englebert said that the biker was wearing a dark jacket and riding on a mountain bike. Counsel also challenged the thoroughness of the investigation, including the fact that forensics were not conducted on the bicycle, that Lawson was not interviewed, and that defendant's assertions that he was working on the day of the homicide were not explored.

The Unresponsive “Blurt–Out” Regarding the Ballistics Match

During trial counsel's cross-examination of Detective Weiser, counsel asked Weiser if he did a fingerprint analysis of the shell that was recovered from the crime scene. In response, Detective Weiser said, “No, but they matched it up to another shell, from another murder.” Defense counsel immediately asked the detective another question: “Did you take a fingerprint from that shell, that's the question.” At that point, the detective said, “No, no.”

Later, outside the presence of the jury, defense counsel moved to have Detective Weiser's testimony about the shell matching a shell from another homicide, stricken as unresponsive. Defense counsel explained the timing of his application as follows: “I did not do anything about it because I didn't want to highlight it for the jury .” He argued that the comment was “not responsive, not relevant to the case.” The judge then said, “I will have it re-read back. I am going to let you ... continue. I remember it was uttered. I was almost going to intervene. In my view, it was not responsive. Read it back.” After a brief colloquy, the Court agreed with defense counsel that the statement was unresponsive and struck it from the record, indicating that defense counsel did not “hear” it. The Court said, “What I am telling you it's extremely inflammatory, I believe, bad faith on the witness. Certainly, no trap by [the People], but the jury—if he asked me to strike it, I would have.” When the Court asked defense counsel if he wished to have a curative instruction read to the jury, the attorney said, “I don't want you to give any curative instruction” and the Court indicated that the unresponsive comment would be deleted from any read-back of testimony which the jury may request.

Dr. Kari Reiber

Dr. Kari Reiber testified that she conducted an autopsy on September 11, 1994, and that her examination revealed that Stone died from a single gunshot wound to the abdomen, with perforation of the liver. Dr. Reiber further testified that cannabis had been detected in Stone's body.⁵

5 At trial, the parties entered into a stipulation on the testimony of ballistics expert Detective Joseph Amato. It stated “[t]hat he conducted a microscopic examination on the spent shell casing recovered at the scene ... against the bullet found and recovered from the body of Antoine Stone and would have testified that they were consistent with being fired from the same gun.”

Claudine Campbell

Defendant's niece, Claudine Campbell, testified that she lived with defendant until he moved to Harlem in 1993, that defendant and Stone attended the same junior high school and that she used to see defendant and Stone together on “a lot of occasions” because Stone would “come to visit the family.” Although it had been years since Campbell had seen Stone in her family's house, she would see him on the street.

Summation and Jury Note

On summation, trial counsel argued that, given various inconsistencies and weaknesses in the People's case, the People had failed to establish defendant's guilt beyond a reasonable doubt. In this regard, counsel argued that Englebert's testimony was unreliable inasmuch as it was contradictory (his trial testimony that the bicyclist was “going fast” was at odds with his grand jury testimony that the bicyclist was going “normal speed”), irrelevant (his testimony that he saw an ambulance demonstrates that his observations were made well after the shooting had occurred and not at a time when the bicyclist would have been observable), and at odds with another witness (his testimony that the bicyclist was wearing a dark shirt contradicted Purser, who testified that the shooter was definitely wearing white). According to trial counsel, Englebert's testimony merely established that “sometime after the shooting-he [saw] a person on a bike.” Regarding the description of the bicycle, Turner argued that Englebert's testimony was incomplete as he failed to tell law enforcement its color at the crime scene.

According to Turner, Purser's testimony was equally unreliable because of her equivocal identification of defendant at trial. He also argued that her testimony about what she had observed was undermined by her compromised vantage point, poor lighting and the fact that she was feeling dizzy at the time of the incident.Turner also argued that the dying declaration, in which Stone told Rodriguez that the person who shot him was a drug dealer on a bike wearing a white shirt, demonstrated that defendant was not the perpetrator. According to trial counsel, the only evidence in the case regarding the relationship between defendant and the victim was that they were friends. Counsel maintained that if defendant was the perpetrator, Stone would have said “Robert did it. Robert Jones did it,” given their prior relationship. In the absence of this testimony, Turner urged the jury to conclude that the shooter was a stranger, someone wholly unknown to Stone.

Inconsistencies aside, Turner also challenged the suggestiveness of the line-up, the lack of scientific evidence, the detective's failure to question Edward Lawson, as well as the detective's failure to investigate whether defendant was working at the time of the shooting. Trial counsel argued that the People had inflated defendant's jail-cell “bullshit session” with the detectives about weapons and his affinity for a .380 because they had failed to recover the murder weapon. Finally, Turner argued that the bike found in defendant's home was of no evidentiary value because there are “thousands, millions of bikes.”

During deliberations, the jury requested evidence from the case, including a read-back of “Det. Wiser [sic] testimony,” which the Court provided, absent the stricken unresponsive comment regarding the “ballistics” match.

The Attempted Escape and Sentence

Before the jury reached its verdict, defendant attempted to escape from the courtroom. During the incident, two court officers were injured.

Thereafter, defendant was convicted of second-degree murder as well as criminal possession of a weapon in the second and third degrees. The Court sentenced defendant to an indeterminate prison term of from twenty-five years to life for the murder count and ordered that term to run concurrent to an indeterminate prison term of from five to fifteen years for the count of criminal possession of a weapon in the second degree and an indeterminate prison term of three and one-third to seven years for the count of criminal possession of a weapon in the third degree.

Subsequently, defendant pled guilty to one count of attempted escape in the first degree and four counts of assault in the second degree and was sentenced to one and one-half to three years in prison for the attempted escape count and three years in prison for each of the assault counts, all to run concurrent to each other and consecutive to the sentence imposed for the murder of Antoine Stone.

The Direct Appeal

On appeal, the Appellate Division, Second Judicial Department, modified defendant's sentence as it related to the assault and escape attempt and made those counts run concurrent to defendant's life term sentence (People v. Robert Jones, 260 A.D.2d 402, 686 N.Y.S.2d 320 [2d Dept 1999] ). The Appellate Division also ruled, after reviewing the evidence in a light most favorable to the prosecution, that the evidence was “legally sufficient to establish defendant's guilt beyond a reasonable doubt.” Finally, the Court exercised its “factual review power” and held “that the verdict was not against the weight of the evidence.”

The CPL 440 Hearing

The CPL 440 hearing was conducted over a nine-day period in January, February and March, 2014. The defense called six witnesses (Joan Gennace–Purser, Philip Englebert, Josue Rodriguez, Nelson Lassalle, defendant Robert Jones and attorney Barry Turner) and the People called four witnesses (former ADA Piper Paul, ADA Debra Pomodore, ADA Daniel Saunders and retired Detective Charles Lehner). The parties also introduced into evidence numerous exhibits, including all of the DD5s, a Line-up Form, the grand jury testimony of Purser, Englebert and Rodriguez and a transcript of an interview of defendant's former fiancée, Amira Grant.⁶

6 During the CPL 440 hearing, the defense also sought to call as a witness a purported expert in eyewitness identification and “night-crime scene reconstruction.” The Court denied the application in an interim Order dated March 24, 2014 (see People v. Jones, 43 Misc.3d 794, 982 N.Y.S.2d 740 (Supreme Ct Queens County 2014).

Joan Gennace–Purser

Purser testified that when she testified at defendant's trial in 1996 she did not tell the whole truth because the police pressured her to identify defendant even though she had insisted that she could not identify the man on the bike. Purser testified that she felt “ashamed” that she testified falsely and never revealed it to anyone except God, and that she was in Court now “to tell the truth .” She testified that she was too afraid to tell the truth at trial because she was afraid of the police—that “if [she] didn't do exactly what Detective [Weiser] wanted [her] to do, he could make tremendous trouble for [her] life,” and “would have done something bad.” Yet, Purser acknowledged that notwithstanding her abiding fear, she nevertheless defied the detectives and the Assistant District Attorney (ADA) by providing only an uncertain identification of defendant at trial. At the conclusion of her testimony at the hearing, Purser sought to approach the defense table and asked, “may I just say a word to Mr. Jones if it pleases you?”

Although Purser at various times in her testimony claimed that all of her trial testimony was untrue (i.e., “all of it” is inaccurate; “everything” is inaccurate), she ultimately testified that it was only her trial testimony regarding her lineup and in-court identification of defendant that was false. She confirmed, for example, that on the early morning hours of September 10, 1994, she observed two black men, one of whom had a bike, talking on the “bright and clear” street outside of her window about twenty to twenty-five feet away; that she observed the men for about fifteen to twenty minutes; that she was able to provide a clothing description of the man on the bike; that the man on the bike rode his bike toward another man who Purser knew as the “preacher” and that when they met, Purser heard a “pow, pow,” and observed flashes of light emanating from where the men met; that after the “pow, pow,” the man on the bike rode his bike back to the other man who remained standing under Purser's window; and that the man on the bike looked up into Purser's eyes and stared at her two times—first while he was standing under her window and second when he returned to the other guy after the “pow, pow.”

Unlike her testimony at trial, however, Purser testified at the CPL 440 hearing that she observed the man on the bike ride his bike onto Dickens Street, away from Eggert Place, after the “pow, pow,” but she did not see him turn on Dickens Street and could not “see anything more about it after that.” At the hearing, unlike the trial, she also testified that after the “pow, pow” sound, the man on the bike shoved the man with whom he was standing before he rode his bike away. At trial, she testified that it was the other man that pushed the man on the bike. Notwithstanding the “pow, pow” sounds, the flashes of light, and the biker rushing back, Purser testified that she did not know what was transpiring and did not think someone had just been shot because she thought the sounds were “firecrackers”—this notwithstanding her grand jury testimony that the “pow” sounded like “a clapper or gunshot.” Purser testified that she later learned that someone was shot when her landlord and neighbor informed her, through her window, that someone was shot and she heard the sirens of police cars and an ambulance. She then closed her window, went into her room and “went to bed.”

Purser testified that two days later Detective Weiser and his partner came by her house, and asked her if she saw “anything” or “what happened on the night of the shooting,” and she answered, “no,” saying she “did not know anything.” It was not until the detectives confronted Purser with the landlord's and the neighbor's claim that Purser was at her window, that Purser began to admit to the detectives that she saw the men standing outside and heard the “pow, pow.” She insisted, however, that she told the detectives that she “didn't see nothing,” could not “identify nothing,” and did not know that it was a “gunshot that went off.” She also insisted that she was not “reluctan[t] ... to cooperate” and that she never told the detectives that she was “afraid that the shooter was going to come after” her. Purser admitted, however, that in the grand jury she expressed concern that the guy on the bike “was looking at me and I was thinking, he saw me there.” Purser admitted that this fact—the shooter looking at her—did scare her. Purser also admitted that she informed Detective Weiser that her immigration status was illegal and that was the reason she “really [did not] want to go to court.”

When the detectives continued to come to her home, Purser informed them again that she could not “identify anyone,” because she was not “paying attention like to see who those people” were. The detectives, however, said “that's not good enough,” and continued to visit Purser, mentioning that they knew where her husband worked and where her children got on the bus and went to school. Although Purser admitted that the detectives never threatened her with these comments and that she “didn't take it for nothing at that time,” she did begin to wonder whether the Detective Weiser was “pressuring” her to make an identification. And her concern about the detectives' comments, including his comments about her illegal immigration status, contributed to her willingness to later make a false identification at trial. Purser admitted, however, that she never included these concerns in the two affidavits which she signed in support of the motion to vacate. Purser initially also testified that she did not recall telling anyone about the comments or concerns. Upon repeated cross-examination about this issue, however, Purser recalled that in fact she did tell attorney Hoffman about this just before the CPL 440 hearing commenced:

PEOPLE (P): Well, isn't it true that neither of your affidavits contained any mention of Detective [Weiser's] telling you that he knew where your husband worked, he knew where your kids went to school, and he knew about you immigration status?

PURSER: I don't remember if I mention it to Mr. Hoffman. I don't remember if I mention it to him.

.......P: And it is not in [the affidavits] because you never told the investigator about it?

PURSER: No.

P: You did tell him about it?

PURSER: I don't remember if I say something, if I mention it. I don't remember. I really don't.

P: So the two possibilities are you never mentioned it, right, that's one

PURSER: I really don't mention it to nobody that much, so I don't remember if I mention it to them.

THE COURT (C): You don't think you mentioned it to them or you think you did?

PURSER: I don't think so, your Honor. I don't remember.

C: Okay. Fair enough.

PURSER: I really don't remember.

.......

P: Did [the defense team] ask you the reason why you didn't tell the truth [during the trial]?

PURSER: Did they ask me? You see, I don't remember if they ask me exactly reason why. I think Mr. Hoffman ask me to just tell the truth of what happened.

.......

P: So you never told them the reason and you never told them about the detective saying those things that bothered you about your husband, your kids and your immigration status?

DEFENSE COUNSEL (DC): Objection, your Honor. Asked and answered.

C: Well, this is cross-examination. He has the right to attempt to probe and change the witness's answer, so overruled. You can answer that, Ms. Purser.

PURSER: Yes, I mention it to them.

P: You did?

PURSER: Yes, I mention it.

P: You sure of that?

PURSER: I mention it to them. They didn't really ask me. I was mentioning to them [just weeks prior to testifying].

.......

C: I just asked you a very pointed question a few minutes ago about whether you remember telling anyone that, and you said, well, you know, I just don't remember. I want to know what just refreshed your memory that in fact you did. Because a few minutes ago you said something differently.

PURSER: Because he keep repeating, it came back to my mind.

C: The more he repeats it the more you remember stuff?

PURSER: Yes. It came back to my mind, yes.... He just keep repeating it to me, your Honor, and it flashback that I did mention it to him because Mr. Hoffman was asking me was [Detective Weiser] like threatening you. I says, no. He wasn't.... He didn't speak like he was threatening. He just speak it very humble.

Purser testified that on one occasion when the detectives visited her, she refused to open the door and the detectives told her that if she did not open the door, “they would get a woman police to lock [her] up for not opening the door.” When the Court confronted Purser with the discrepancy in the foregoing testimony given that in her sworn affidavit she stated that the detectives said they would get a woman police to come to “open the door” (not lock her up), Purser admitted that the hearing testimony was untrue and that the affidavit was true. Purser did not answer the Court's question as to “why was there a difference” in her testimony and her affidavit, and Purser did not correct the defense attorney when the attorney asked her whether she had told the jury “about the threat to lock [her] up,” but simply answered, “no,” knowing that there was no threat to “lock her up.”

Purser initially insisted several times that the detectives brought the folder of photos to her home the first day they met her, just a few days after the shooting. She later retracted that testimony and confirmed that they did not have the photo book with them on the first day they visited her. Purser acknowledged, however, that when the detectives asked her to come to the precinct to view photos, she told the detectives that she refused to go look at photos because she was afraid that the shooter had recognized her, given that he stared at her before he left the scene.⁷ Purser claimed that this explanation for refusing to go to the precinct was actually not true; the real reason she refused to go to the precinct, according to her, was that she was afraid that the detectives would force her to falsely identify someone, even though the detectives had not yet actually brought the photo books to her home and did not yet begin to pressure her.

7 This testimony is consistent with DD5 Number 21 (admitted as People's Exhibit 4), in which Detective Weiser reported that on September 14, 1994, Purser said that “at this time ... [she did] not wish to view photos out of fear that the perp saw her because at one point he stared at her.”

Purser testified that the detectives visited her approximately ten times and that on each of those occasions, except the first meeting, the detectives had a photo book and would show her “one picture,” and say “that's him.” Purser testified that when they did that, she would “always tell [them] that's not the guy.” The police reports admitted into evidence (DD5 Numbers 25 and 26), however, indicate that the detectives did not even begin to suspect defendant as the shooter until September 25, 1994, which was at least over 11 days after they first visited Purser.

Notwithstanding Purser's repeated refusal to identify the photo selected by the detectives, the detectives nevertheless later came to Purser's home to bring her to the police precinct for a lineup. Purser testified that as they drove to the nearby police precinct, which was about a one minute drive from Purser's home, the detectives gave her a folder or book with six photos on each page and selected (or pointed to) one of the photos, saying: “this is the guy who shot the guy. When you go to the lineup you will see him, take a look at the picture so you don't mistake it.” According to Purser, the detectives also told her that someone else had already identified defendant. When Purser told them that she did not “know this picture,” and could not recognize the man in the photo, the detectives told her to “keep looking” through the folder, which she did. The Court confronted Purser with the fact that when she testified at trial, she was specifically asked what the detectives said to her while they were on their way to the precinct, prior to the lineup, and Purser testified at trial that they did not say anything to her. Purser explained that by the time she appeared at the trial she had already lost trust in the prosecutor who had asked those questions.

Purser testified that when she arrived at the precinct, she sat down with the folder of photos, including the photo of the man whom the detectives said was the shooter, but kept “saying to” herself that she did not “know the guy in the picture.” Purser then “reluctantly went down to the lineup” room and saw the man who was in the photo, which “frightened” her. Purser testified that she did not recognize anyone in the lineup from the night of the shooting, and did not make an identification, telling the detectives, “I don't know the guy,” and “I never seen him,” except that she admitted that she recognized the person holding up number 4 from the photos that were shown to her. Purser acknowledged, however, that she signed the lineup form (admitted as Defendant's Exhibit C), which indicated that she identified the person holding up number 4, saying that he “has the same body, the same face” as the man on the bike, and that he was “the one who shot the man.” Although Purser claims she never said those things to the detectives, she acknowledged that it was written on the form in her “handwriting.”⁸ Purser testified that when she went to the lineup, she was “real mad” and told the detectives in a loud voice to “leave” her alone, and asked them why they wanted her to “lie on the gentleman.”

8 The Line-up Form, admitted as Defense Exhibit C, contains Purser's signature and three written questions and the following answers: “1. Do you recognize anyone? Ans. Yes; 2. What number do you recognize? Ans. # 4—I think it's # 4—has the same body has the same face; 3. Where do you recognize him/her from? Ans. He was on the bike and was one shot the man.”

Purser initially could not remember whether she testified in the grand jury, saying “[i]t's so much I can't remember it. It's so long and so much different activity into that case I can't put it together all to complete.” Purser eventually recalled nevertheless that only several days after the lineup, she testified in the grand jury that the person she picked out in the lineup was the person holding number 4 (defendant), saying that he “looked like the person I saw on the night of the shooting. I'm not really certain, but the face just brings back the memory.” Purser also acknowledged that her memory about what happened on September 10, 1994, was a lot better and more accurate in October 1994 (when she testified in the grand jury) than it is at the time of her hearing testimony in 2014.

Purser testified that on the day that she ultimately went to court to testify at defendant's trial at the Kew Gardens Courthouse on Queens Boulevard, she first met with the Assistant District Attorney who later questioned her at the trial (ADA Pomodore). Purser claimed that the ADA “clicked” on a “little recorder” and asked Purser whether she could identify the person who was standing under her window. When Purser informed the ADA that she “cannot identify the person,” the ADA got “mad” and showed her photos from the folder, but Purser again insisted that she never saw “the face” and could not identify anyone. According to Purser, the ADA then left the room, telling the detectives to “fix this thing” and shutting off the recorder. The detectives then told Purser that she “cannot go into court and talk like that,” and again showed her the photo book with the same picture. The detectives also told her that “the judge is going to ask you, have you seen this gentleman in the courthouse,” and that Purser should “just answer yes” and then identify him by the clothes he is wearing. According to Purser, she then said “okay.” At one point during her testimony, Purser testified that the “police actually told [her] to lie,” but when questioned further by the Court, Purser admitted that the police did not “say lie.”

Purser testified that in 2013, someone identifying himself as a detective (Mr. Nelson) working for defendant sought to meet with her to ask her questions about defendant's case. Purser was glad to meet with Nelson because “it was like a burden just removed from me .” Purser testified that she signed the affidavits many months before she was provided with the transcripts of her trial testimony, and that she never fully read the trial testimony transcript in any event.

Purser testified that the defense team never told her anything pertaining to the case and never “ask[ed]” her any “questions,” after they asked her to explain “what took place.”⁹ Purser initially insisted that the defense team never told her that defendant was “innocent” or that they were working to free defendant. On cross-examination, however, Purser admitted three times that the defense team told her that they were trying “to set him free,” before she inexplicably backed away from that testimony, saying that she was trying to “tell [the Court] that [she] was speaking the truth to set [herself] free:”

9 In Purser's Second Affidavit (paragraph 3) submitted in support of the CPL 440 Motion, however, Purser admitted that the defense investigator did in fact ask her a question about what direction the man on the bike went after the shooting. Purser also later admitted that in fact Hoffman also asked her questions regarding her reason for not telling the truth at trial.

P: Did [the defense team] ever come and say to you what they were trying to do for Mr. Jones?

PURSER: They say they are trying to get the truth to set him free (emphasis added).

P: Okay. So they told you that they were trying to free him?

PURSER: To get the truth to set him free (emphasis added)....

......

P: ... They wanted you to speak the truth, ... but they also told you they wanted to set him free?

PURSER: I don't know about that. Speak the truth. He said speak the truth to them so that they could understand the case.

C: You just said several times that they said to set him free (emphasis added). Is that your words or their words?

PURSER: They say it (emphasis added) ...

C: Okay. I thought you just said that you don't know whether they said that? ... Did they say they want you to tell the truth to set him free?

PURSER: No. To tell the truth.

......

C: Now, when you just said earlier to set him free, why did you ... add those words and say that Hoffman said that, if you are now saying that he didn't say that? Are those your words or his?

PURSER: Maybe I just said by setting him free, but I was trying to tell you that I was speaking the truth to set me free (emphasis added).

Purser's testimony that she was speaking the truth now “to set [herself] free” was repeated numerous times during her testimony, often in an emotional, long-winded, agenda-driven narrative that was not responsive to the question being asked.

Purser also testified that when the defense team prepared her affidavit, they first wrote it in handwriting while she was explaining what happened and then brought her a typed affidavit to sign. Hoffman later told the Court, however, that in fact no handwritten notes were taken during the interviews with Purser, and that the five-page, thirty-three paragraph affidavit was completed without the benefit of any notes at all.

During her testimony, Purser often did not seem to appreciate the difference between “see,” “know” and “recognize.” For example, when Purser was asked whether she “saw” the face of the person on the bike who twice looked up at her, she initially answered “no.” When the Court, however, followed up with other questions about that, she ultimately admitted that she did “see” the person's face:

C: How did you know he is looking up to you if you didn't see his face?

PURSER: I didn't recognize him (emphasis added).

C: He didn't ask you if you recognized his face, did you look at his face?

PURSER: I did not look at his face like really look at his face, he just turned.

C: If he is turning his face.

PURSER: He had his face, yes.

....

C: I'm trying to understand what you mean.... You are saying that he looked directly up at you.

PURSER: Yes, he looked up (demonstrating).

C: You are also saying even if you know that he looked right at you, you can't say whether you saw his face[?] ... Did you look at his face?

PURSER: He was a black guy, and he looked up.

C: I'm not saying you looked at his face for fifteen or twenty minutes. If he is turning to you and you acknowledge that he looked up at you, you're saying that you did see his face?

PURSER: I could see his face.

Purser nevertheless continued to testify during various later portions of her testimony, that she did “not see the person's face.” On multiple occasions Purser also testified that she did not “know” the man on the bike, and had never “seen” him.Likewise, when Purser was initially asked whether she “actually recognized the poor man that died,” she flatly answered, “no,” but then changed her testimony upon further questioning:

P: Now isn't it true that you actually recognized the poor man that died?

PURSER: No.

P: Isn't it true that you knew him from the neighborhood because you used to see him walk around with his bible?

PURSER: Yes. I knew him from the neighborhood.

. ....P: You forgot that part, right, that you recognized him from the neighborhood?

PURSER: Yes. I know him from the neighborhood. They call him the preacher man.

C: He just asked you a few questions about whether you knew the guy, you said, no. Now he asked you again then you said oh, yes the preacher guy. Did you forget when you first answered no? He's asking for an explanation as to why you changed your answer?

PURSER: What did he ask me, your Honor?

......

C: ... He asked you whether or not you knew the person who died.

PURSER: I don't like knew, knew him, Your Honor.... I knew him by passing, going to church and if you see anyone stand at the gate, he would say praise the Lord, sister, and keep going. So I could like recognize him walking, but I don't stand up and like talking with me (emphasis added).

Philip Englebert

Englebert testified that he falsely identified defendant as the man on the bike at a lineup and at trial because he was “pressured” by the police and he “just wanted to get [this] over [and] done with and put this all behind [him].” Englebert testified that he came to Court today because he “put an innocent man away” and now did not “feel right” and “want[ed] to fix this .”

Englebert testified that in the early morning hours on September 10, 1994, he took the subway from work in Manhattan and exited the Mott Avenue Station in Far Rockaway. He testified that as he was walking home from the subway and walked all the way to the street where he lived, Eggert Place, he observed a man with Englebert's complexion (white Caucasian) pass him on a mountain bike. The man on the bike was on Eggert Place headed toward Mott Avenue and passed Englebert. Englebert testified that he told the police that night that he saw the person on the mountain bike and that the person was Englebert's complexion.¹⁰ When Englebert was confronted with his statement to the police in which he told the police that the bike passed him on Mott Avenue (not Eggert Street)¹¹ , he initially testified that the statement to the police was accurate. Upon reviewing the blown up map again, however, he then insisted that the man on the bike passed him on Eggert Place and not Mott Avenue—testimony that was contrary to the testimony that he had given in the grand jury (and at trial), where he testified that he saw the man on the bike on Mott Avenue.

10 According to DD5 Number 18, admitted as People's Exhibit 4, Englebert told Detective Cardamone that he observed a “M/HISP/30YRS . DK.HAIR SHORT AFRO/LT.MUSTACHE” pass him while riding a bike. There is no indication in any of the other DD5s that Englebert ever described the biker as a white male.

11 DD5 Number 18, admitted as People's Exhibit 4, indicates that on the date of the shooting Englebert told the police that he observed the man on the bike pass him on Mott Avenue, not Eggert Place. Likewise, DD5 Number 28, admitted as People's Exhibit 4, indicates that Englebert told Detective Weiser that after he saw the man on the bike, he walked “three to four [more] blocks” before he saw the person who was shot lying on the ground.

He also testified that later that morning, and later that night, the two detectives came to see him and brought him to the precinct to view “mugshots”¹² but he did not recognize anyone. At some point, the detectives showed Mr. Englebert three or four photos on a table, but Englebert admitted that it could have been six photos-he just could not remember because he did not “know all about the case.” Englebert testified that upon reviewing the photos, Englebert “selected the person that [he] thought was the person that was riding the bicycle,” but then later said he did that because he “was pressured” and “wanted to get out of there.”

12 According to DD5 Number 18, admitted as People's Exhibit 4, Detective Cardamone had Englebert view a photo book of “Male Whites and Hispanics.”

When the People then asked how the police pressured him, Englebert said, “Because they kept showing me pictures, ... throwing pictures at me, they kept saying we got the guy. This is our man.... So I went along.... We got our man and we got the bike and we got this and we got that. So I just wanted to put it all behind me and I said anything to make them happy and put it behind me.” When the People confronted Englebert with the fact that defendant was not arrested until two days after the photos were shown to Englebert, Englebert acknowledged that it was possible that he selected defendant's photo “without [any] pressure” and that he made the selection not to “satisfy” the officers but because the photo “looked like the man on the bike.” Englebert also later testified that the detectives did not say anything to him when they showed him the photos beyond saying, “we have more pictures to look at.”¹³

13 DD5 Number 28 (People's Exhibit 4) indicates that Detective Weiser showed Englebert a “photo array” on September 27, 1994, and that Englebert identified number 2 (defendant) as the person he saw “racing away” from the scene. Englebert described the person on the bike as a “male ... either black or Hispanic, dark skinned, wearing a white tee shirt, ... [in his] late 20s, [with] short curly hair [and a] slight mustache.”

Englebert also testified that sometime later the detectives brought him to view a lineup at the precinct. Contrary to a police report and Englebert's grand jury testimony, Englebert testified that he picked someone out of the lineup but it was not the person he saw on the bike.¹⁴ He testified that he picked out someone other than the person on the bike because “[i]t seemed like they were pressuring” him:

14 According to DD5 Number 39 (People's Exhibit 4), Englebert identified the defendant in the lineup as the person “who rode past him on the bike.” Likewise, Englebert testified in the grand jury that when he made an identification in the lineup, he was identifying defendant as “[t]he same person that passed [him] on the bike on the night of the shooting.”

DC: Was it the same person?

ENGLEBERT: It wasn't the same person. I want to make it clear, they were pressuring me because they said they have this guy, and we're not going to let him go and we need—you know, I was pressured. I just wanted to get over, done with and put this all behind me.

DC: Is that why you picked out someone from the lineup?

ENGLEBERT: Yes, I wanted to put all this behind me. It was—I was pressured to do it. I'm here today to fix everything.

Mr. Englebert likewise testified that at trial he identified defendant as the man on the bike, but, according to Englebert, that also was not true:

DC: Was Mr. Jones the man that you saw on the bike that night?

ENGLEBERT: No.

DC: So why did you testify

ENGLEBERT: I wanted to put this all behind me like I said.

....

DC: I will try to be clear, Mr. Englebert. You are saying you felt pressured; is that right?

ENGLEBERT: Yes.

DC: What did you feel pressure about?

ENGLEBERT: Because he kept saying to me, we got our man, this is the man we got. We got our man.

DC: Did they tell you that you had to do anything?

ENGLEBERT: They didn't tell me. I just wanted to put this all behind me. I just said anything. That was it. I wanted to put this behind me and get on with my life.

When Englebert was later questioned about who pressured him, Englebert said, the “the DA and the detectives. How many times do you want me to tell you this?” The following colloquy, during which Englebert interrupts and disrespects the Court, then ensued:

P: When you say the DA, it was the trial assistant who was asking you the questions?

ENGLEBERT: They said they got their man. They got him, and they want him so I just wanted to put all this behind me. I did what I did, and now I don't feel right.

C: Mr. Englebert, he is asking

ENGLEBERT: I'm answering his question. If they don't like it, then tough.

C: No, no, he is asking you about the District Attorney.

ENGLEBERT: I am answering his question.

Englebert testified that he came to court today “because I want to fix it. I put an innocent man away. I want to fix this. I don't feel right.” Englebert conceded, however, that he did not even think an innocent man was in jail until the defense's investigator told him that an innocent man was in jail and that the defense team had proof that he was innocent.

When Englebert was asked if he spoke to anyone about this case before he came to court today, Englebert said, “no, I didn't.” He likewise said that he did not meet with “people from the Queens District Attorney's Office” recently or within the last year. Yet, when he was specifically asked whether he met with people from the defense team, he testified that he did. When the People attempted to get Englebert to approximate the number of times he met with attorney Hoffman, Englebert repeatedly said he did not recall and could not approximate because he had a “bad memory” and did not “remember everything.” Although Englebert repeatedly testified that he had met with the defense team “yesterday” (i.e., the day before he testified at the hearing), he later admitted that he actually met with them two days prior to his testimony. Englebert testified that an investigator first approached him about this case in July 2012. Although Englebert claimed to have read a transcript of his trial testimony at some point, he testified that he did not read it before he signed the affidavit for attorney Hoffman. He also admitted that he never read any of the police reports or the lineup form which he signed.

Notwithstanding the parties' stipulation in open Court (and in the presence of Englebert) that Englebert had testified at trial that the person on the bike was riding a “Ross” bike, Englebert insisted that he never testified at trial that the person was riding a “Ross” bike. He said: “I did not say a Ross bike. I said mountain bike. That is all I said. I'm not superman. I don't have x-ray vision. I can't see the name Ross. If you are riding past, it's impossible. So I did not see the name Ross on the bike. All I said that I had seen a mountain bike.”¹⁵

15 In Englebert's Affidavit in Support of the CPL 440 motion, he claimed that the trial ADA and the detectives pressured him to testify at trial that the bike that the man was riding was a “Ross” bike. Englebert, however, failed to testify about this claim at the CPL 440 hearing.

Throughout Englebert's testimony, Englebert disregarded the Court's instructions to let the attorneys and the Court finishing asking questions before he begins to answer. After interrupting one of defense counsel's questions regarding “pressure” during the identifications, the following colloquy ensued:

C: Mr. Englebert, sir

ENGLEBERT: Yes.

C: Sir, you are cutting her off.

ENGLEBERT: I'm not cutting her off. She was finishing, and I was ...

C: You just cut me off, sir, the court reporter can only take down one person at a time. It's important that we all get to finish up our questions before you begin to answer.

ENGLEBERT: This is what I'm doing, again I am getting pressured (emphasis added).

C: So we want to make sure that you are answering the question that is being asked. So if you cut the questioner off before she finishes her question, the record is not going to be complete.... [I]t is important for you not to cut her off, okay?

ENGLEBERT: Gotcha.

Englebert also exhibited anger towards the Queens County District Attorney's Office during the hearing, at some point referring them as “goons,” and alleging that the cross-examiner (Masters) personally went to Englebert's home. Defense counsel had previously notified the Court and the People that the defense had lost contact with Englebert and the People apparently had some of its investigators attempt to locate him. The following colloquy, which also shows Englebert talking over the Court, ensued:

P: Do you have any children?

ENGLEBERT: Two.

P: What are they and how old?

ENGLEBERT: You should know, you were at my son's house.

P: I wasn't, but for the record.

ENGLEBERT: For the record, I have to make up with him, okay and my sister's house and because they mad at me because your goons went over there and that's why I'm mad....

C: Mr.

ENGLEBERT: I'm sorry I called them goons. I apologize about that, but I'm mad about that....

C: You're mad with Mr. Masters, [the prosecutor]?

ENGLEBERT: Yes.... I'm mad at the District Attorney's Office because they ... told my sister and my son they had eight warrants out for me. For what? What did I do?

C: Mr. Englebert, Mr. Masters didn't go to your sister's house, did he?

ENGLEBERT: He's part of the District Attorney's Office.

C: Right. But try to focus on my question. I'm asking you because you said when you went to my house. He didn't go to your house, did he?

ENGLEBERT: Him? No.

C: Okay. You can continue....

P: Let me apologize to you for any difficulty

ENGLEBERT: Apologize to my family. Not me. I can't do nothing about that.

C: Mr. Englebert stop interrupting the lawyers.

ENGLEBERT: I want to put this behind me. I want to go home, all right? I want to put this all behind me (emphasis added).

Regarding his memory of the events of September 10, 1994, Englebert first said, “I don't remember all of it,” because it has been a “long time” and his “memory may not be that good.” He did concede that his memory of what happened in September 1994 would have been much better in September 1994 when compared to his memory now, 19 years later, because “it was nineteen years, how do you want me to keep that in my mind, I want to get it out of my mind. I don't want to think about that. I have other things to think about.” When Englebert was asked about his testimony in the grand jury, and whether Englebert remembered the ADA's name, Englebert said, “it's been so long, I don't remember everything, I don't remember everything.” Likewise, when he was asked whether it was a male ADA or female ADA asking him questions in the grand jury, Englebert said, “I don't remember.... I don't remember. I don't remember. C'mon. You know how long this is? What 18, 19 years? ... Can't remember everything. I'm old now. What do you want? I don't have Alzheimers.”

At some point the Court ordered a lunch recess and directed Englebert to return in the afternoon. Englebert insisted he would not return, however:

ENGLEBERT: No, I'm not coming back no more. This is it. I got things to do. C'mon. I want—I got a life. This is it. I'm not coming back no more. I don't care how many time you going to—this is it. I'm not coming back no more.

C: You have to come back at 2:15.

ENGLEBERT: I'm not coming back. I don't care what you say. I'm not coming back. I'm going home. You understand? I got things to do. I got a life too. I want to do things. I got somewhere to go today. I'm not coming back.

C: Do you folks [the defense team] want to talk to him?

ENGLEBERT: Ain't nobody going to convince me. I'm going home. Read my lips. I'm going home.

Englebert did return in the afternoon, but continued to complain: “this is my day off. I got other things to do I don't want to spend—I'm spending half of my day here. I want to go home.”

Josue Rodriguez

Josue Rodriguez testified that on September 9 and 10, 1994, he was staying at his sister's house on Mott Avenue, between Eggert Place and Dickens Street, in Far Rockaway, Queens. At around midnight on September 9, or the early morning hours of September 10, Rodriguez was sitting on the sofa with his infant nephew in the living room when he heard two shots. Rodriguez testified that he waited three or four seconds and then turned around, looked out the window from the sofa and observed a dark-skinned male wearing a white tee-shirt “fly by” “fast” on a bike about forty feet from his window, in the direction of Dickens Street. Rodriguez admitted that he did not observe the man for more than a second or two and did not observe how close he got to Dickens or if he reached Dickens because he only observed him ride for seven to eight feet and “didn't look.”

Rodriguez then brought his nephew to his sister's room, told his sister that he heard shots and looked out the living room window again, from which he observed a “guy walking, zig zagging,” and then “fall[ing] on his knees.” Rodriguez then went outside, observed a man on the ground about 45 to 50 feet from the house and approached him, asking him if he was okay. The man responded, “I was preaching to the drug dealer on the bike and he shot me. Why?” Rodriguez recognized the man, who was bleeding and losing consciousness, as “a guy who preaches out in the street.”

When the detectives came to talk to him the next day, Rodriguez did not tell the detectives that he saw the man on the bike go by his window, or the direction that the bike went. Although the detectives came to his home once or twice and asked him if he was willing to go to the precinct to look at “mugshots,” or a lineup, Rodriguez told them he could not identify anyone and the detectives never forced him to go to the precinct, or otherwise pressured him in any way to identify anyone or even look at photographs.

Although Rodriguez initially testified that he could not remember whether he told the trial prosecutor that he saw the man on the bike go by his window, or the direction that the bike went, upon having his recollection refreshed by reviewing his affidavit, he recalled that he did tell the trial prosecutor about seeing the man on the bike and the direction he went. Rodriguez also acknowledged that his memory about the events of September 10 was better when he testified in the grand jury (in October 1994) and at trial (in March 1996) than it is now, almost 20 years later. And Rodriguez admitted that he never testified in the Grand Jury or at trial that he looked out the window and saw someone on a bike.Rodriguez testified that he first learned about these new proceedings because someone from attorney Hoffman's office reached out to him, saying that defendant “is innocent, so they are going to reopen the case.” Rodriguez told them that “it was a long time ago,” “I'm trying to get my bearings on it,” “after nineteen years.” When Hoffman's office again reached out to Rodriguez sometime later to get him to sign his affidavit, a woman from the office again told Rodriguez that they “had reason to believe that Mr. Jones was innocent” and that “an innocent man was still in jail.” Rodriguez testified that he repeatedly asked Hoffman's office to provide him with his prior testimony before he signed the affidavit, but they never showed it to him, even though Rodriguez had also repeatedly told Hoffman that whatever he testified to at trial was “the truth.” Rodriguez also admitted that he told ADA Saunders that if there is any difference between the affidavit and what he testified to back in 1994 and 1996, his testimony is the “accurate version.” He also admitted that he probably told ADA Saunders, “[n]ow, I'm not sure about seeing anybody on a bike.”

Regarding his memory, Rodriguez, who for many years has worked at several jobs at the same time and gets only two or three hours of sleep a day, testified that he told ADA Saunders and people in Hoffman's office that the “passage of all this time had affected [Rodriquez's] ability to remember everything and that [Rodriguez] had become confused over the years about the sequence of events,” and that “[i]t has been a long time. I don't remember much.... It is not like it happened a month or year ago. It is nineteen years.” Rodriguez also admitted that he told ADA Saunders that “the shooting actually occurred at about one in the afternoon,” and testified that he remembers that it was “light outside.”

Rodriguez testified that the ADA in the grand jury was the same ADA that appeared at the trial.¹⁶ He testified that when he testified in the grand jury the ADA and the detectives did not attempt in any way to “get [him] to change” his proposed testimony in the grand jury, or otherwise attempt to pressure him to testify one way or another. Nor did ADA Pomodore or the detectives attempt to “coach” Rodriguez, or suggest proposed trial testimony prior to Rodriguez's trial testimony.

16 The minutes of the grand jury proceeding demonstrate that the trial ADA was not the same ADA who presented the case in the grand jury.

Investigator Nelson Lassalle

Nelson Lassalle, a licensed private investigator, testified that he has been working as an investigator since 1997, and was retained by defendant in April 2011.

In April 2012, Lassalle located and met with Englebert; in February 2013, Lassalle located and met with Purser; and in March 2013, Lassalle spoke with Rodriguez on the telephone. Contrary to the testimony of Englebert and Rodriguez, but consistent with the testimony of Purser, Lasalle testified that he never told Englebert, Rodriguez or Purser, that defendant was innocent or that the defense team had proof of defendant's innocence. Nor did Lasalle tell the witnesses what to say in their affidavits. Lasalle admitted, however, that when he spoke to the deceased's brother, he did tell the brother about the ballistics link to another homicide, as well as the fact that defendant “passed a polygraph.”

When Lasalle first located Englebert, Lassalle told him that he wanted to speak to Englebert about “what he remembers from” the Jones trial in “1994.” During the first interview, Englebert never expressed any “lingering concerns” about having participated in the prosecution of defendant in 1994 and 1996, and never indicated that he was pressured by the police in any way. Englebert told Lassalle that he did not even remember testifying at Jones' trial and only remembered testifying at the grand jury. Lassalle testified that when he met with Englebert the second time, Lassalle and Hoffman brought the police reports and a copy of Englebert's trial testimony for Englebert to read. Lassalle testified that after Englebert read the transcripts and the reports, Englebert began to talk about the events that were later put in his affidavit.

Lassalle testified that when he met with Purser, Purser never mentioned anything about the detectives saying that they knew where her husband worked or where her children took the bus or went to school. Lassalle also testified that when he talked to Rodriguez, Lassalle specifically asked Rodriguez whether the police pressured him or engaged in other misconduct, and Rodriguez told Lassalle that he was never pressured.

Attorney Barry Turner

Barry Turner, defendant's trial attorney, testified that he refreshed his recollection of the trial and the circumstances of the murder of Stone, and generally had a “fairly good memory of what happened” but “a lot of things” may be “sketchy.”

Turner testified that he graduated from law school in 1967, and has continuously practiced law since then—first as an Assistant District Attorney in Kings County and then as a private practitioner doing criminal defense work, while also serving on the Kings County 18–B Panel, and the CJA Panels in the Southern and Eastern District. Turner has always done criminal law work throughout his 45–year career, during which time he has represented thousands of defendants, including approximately fifty defendants charged with murder. He has tried about twenty murder trials over the last forty years.

Turner testified that he was aware that defendant has alleged three grounds for a claim of ineffective assistance of counsel against him: (1) counsel's failure to investigate the alleged narcotics notebook which was found near the deceased, but later lost; (2) counsel's failure to investigate the ballistics report, which indicated that the gun used in the Stone homicide was also used in another recent homicide at a location which was in close proximity to the location of the Stone homicide; and (3) counsel's failure to move for a mistrial when a detective gratuitously testified that the weapon used in the Stone homicide was also used in another homicide.

Regarding his failure to investigate the alleged narcotics notebook, Turner testified that he did not recall whether he specifically viewed the notebook or demanded to review the notebook, but he assumed that he did ask to review it. Turner testified that he felt strongly that he did not “want any reference to the notebook to come” out at trial because he did not “want any connection of that notebook,” which “contained notations that referenced drug dealings,” to defendant, given Stone's declaration that a drug dealer shot him. Turner did not want to “cloud up the trial with some sort of inference of drug dealing which could be construed” against defendant from the narcotics notebook. According to Turner, this was important because one of his defense strategies in the trial was that defendant, who had a long-standing relationship with Stone, could not have been the shooter since Stone's dying declaration indicated that a drug dealer on a bike shot him. His argument was that if defendant shot Stone, Stone would have identified defendant by name given their prior relationship.

Turner therefore “wanted” the narcotics notebook “kept out” of the trial because it “would hurt” defendant and “would have been prejudicial” to defendant, and keeping it out “was in the best interest of [his] client.” Turner believed that evidence of a “notebook found at the scene” would be “a negative in terms of raising reasonable doubt in the case,” and would have caused the jury to speculate that defendant “was a drug dealer.” Based upon Turner's experience, narcotics notebooks usually contain information about narcotic transactions, money, weight and dates but not the names of participants.¹⁷

17 According to DD5 Number 14 (admitted as People's Exhibit 4), Detective Van Houten from the 102 Precinct Squad interviewed Rodriguez at about 6:30pm on the date of the shooting. During the interview, Rodriguez provided Detective Van Houten with a “notebook” which Rodriguez claimed to have picked up from the street near where Stone stumbled. Van Houten described the notebook as a “blue/green New York Times notebook with narcotic related transactions listed inside. One page missing (torn out).”

Regarding the claim that counsel failed to investigate the ballistics report which indicated that the gun used to kill Stone was previously used in a nearby and recent homicide, Turner testified that although he remembers receiving a DD5 which requested that the Stone ballistics be compared to the ballistics in other homicides in the Precinct's Squad, he did not recall whether he received any reports which completed the comparison or which revealed a match.¹⁸ He testified that if he did receive a ballistics report which demonstrated a match, he “would most likely want that kept out in total because [he] wouldn't want the jury to hear about another homicide, another shooting,” and infer or speculate that defendant was involved. Turner testified that it was also “possible that [he] thought that if” the prosecutor was not aware of it, “it would be best just to keep it out” and “not make noise about it” since “it could come back to haunt us if in fact [the prosecutor] ... found something, after she did review it, that would connect” defendant to the other homicide. This was particularly so if the ballistics report indicated that the shells in the Stone homicide matched the shells in another unsolved homicide that occurred only 8 days before the Stone homicide, and a little less than a mile away. Turner acknowledged, however, that if the ballistics match “precluded” defendant from being involved in the other homicide, this exculpatory evidence—which constitutes Brady material—“might be relevant in the case.”

18 DD5 number 23, admitted as Defendant's Exhibit I, indicates that Detective Weiser requested that the ballistics evidence in the Stone homicide “be compared” to other ballistics evidence from other shootings in the precinct. The Ballistics Unit Case Worksheet, admitted as Defendant's Exhibit J, indicates that after a ballistics comparison was completed, it was determined that the gun used in the Stone homicide was the “same gun” used in another shooting. Although Turner testified that he was not sure whether he received the Ballistics Unit Case Worksheet, a letter from the People addressed to Turner (admitted as Defendant's Exhibit F), indicates that the Worksheet was indeed sent to Turner well before trial.

Finally, Turner offered several explanations for his decision not to move for a mistrial when Detective Weiser unresponsively “blurted out” that the shell in the Stone homicide matched the ballistics evidence in another homicide. Turner testified that he decided not to move for a mistrial, first and foremost, because he believed that defendant was going to be acquitted given the equivocal identification testimony of Purser, the unreliable identification testimony of Englebert, and the exculpatory nature of the dying declaration. Furthermore, Turner had by then obtained a “very, very, very, very good discretionary ruling” in which the trial judge precluded the People from introducing into evidence extremely prejudicial statements (including one in which defendant told the detectives that if they had arrived at his home a week earlier, they would have found five or six guns) and prejudicial physical evidence (i.e., ammunition, a BB-gun, a gun cleaning kit, a gun box, etc.). Turner believed that if a mistrial were granted, the excluded evidence may then be admissible at the new trial.

Turner also did not move for a mistrial because he believed that the jury was not “really cognizant” of the “blurt out” given how fast it happened and how quick Turner followed up with other questions. Indeed, according to Turner, the trial judge and Turner needed to have the “blurt out” testimony read back outside of the presence of the jury because they were uncertain of the exact substance of the blurt out given how quickly it happened. Under these circumstances, Turner believed that striking the prejudicial testimony from the record and preventing the prosecutor from referring to it on summation was sufficient to mitigate any prejudice. Finally, Turner did not believe that the trial judge would have granted the motion for a mistrial, even if he moved for a mistrial.

Turner did not “think” that he consulted defendant on the question of whether he should request a mistrial because it was a legal determination and Turner did not believe that defendant would understand it or appreciate the “detriment of starting the trial over.” Turner testified that when he represented defendant during his murder trial, he also did not tell defendant that this was his first murder case. Turner testified that after he was retained by defendant in October, 1994, he met with defendant frequently, moved to suppress statement and physical evidence, went to the scene of the crime in Far Rockaway, and examined the streets, subway stations and lighting conditions. Turner believes that he effectively represented defendant during his murder trial and “actually thought he was going to be acquitted of the charges.”

Robert Jones

Defendant Robert Jones testified on his own behalf. He acknowledged that he previously was convicted in 1988 of Attempted Criminal Sale of a Controlled Substance in the Third Degree, after he, acting in concert with others, sold crack cocaine to an undercover officer in December 1987, at a location where 42 vials of crack cocaine was recovered. Defendant also acknowledged that he previously was convicted in 1991 of Resisting Arrest, after he attempted “a strong-armed robbery of a man for his coat” and then resisted the arrest of police officers who had observed the incident near the vicinity of the homicide. Defendant also acknowledged that in 1992, he was convicted in Nassau County of Attempted Criminal Possession of a Weapon in the Fourth Degree.

Defendant testified that although he had known Antoine Stone for many years and had a friendship and a sexual relationship with him, he did not kill Antoine Stone and had no involvement in his murder. Nor did he know who killed Mr. Stone. Defendant admitted, however, that the homicide occurred just “a couple of blocks” away from where defendant and his mother used to live and in the same precinct where he previously had sold drugs to an undercover officer, and where he frequently rode his bicycle and spent time.

Defendant's relationship with Stone began in Far Rockaway, Queens, about thirteen years before Stone was murdered. The relationship became “sexual” when defendant, who admittedly began selling drugs, became “seriously” “addicted to cocaine” and Stone offered to provide defendant with money in exchange for sexual acts and favors. Defendant would use the money to purchase drugs. Defendant's drug problem began when he was about 15 or 16 years old but he “stopped using drugs” in “1993,” and moved out of Far Rockaway in 1992, when he moved to Harlem. In Harlem, defendant commenced a relationship with Amira Grant, with whom defendant shared a daughter who was born in April 1994.

Defendant claimed that he was not selling drugs while he lived in Harlem but was illegally selling guns which he would buy in Georgia and sell in New York City, the last occasion having occurred during the summer of 1994. He kept one such gun, a “.25 automatic,” in his apartment but his fiancée convinced him to get rid of it. He also kept ammunition and a “BB-gun” which looked like a .45 in his apartment. In addition, defendant admitted that he shot numerous guns at gun ranges in Pennsylvania and Georgia.

After moving to Harlem, defendant would return to Far Rockaway to visit his mother, siblings and family about three times a month. Although defendant knew where Mr. Stone resided in Far Rockaway, defendant never visited him after defendant moved to Harlem but he did see Stone in Far Rockaway on two occasions about two years prior to his arrest in September 1994. During the time that defendant saw Stone in 1992, they “had a homosexual affair.”

Defendant testified that on the day that he was arrested for the Stone murder (September 29, 1994), a family friend named Edward Lawson had unexpectedly visited him in his Harlem apartment, telling defendant that his mother was worried about him because detectives had been calling the house asking for defendant and expressing concern about a murder. Lawson told defendant that the person who was murdered was defendant's friend, Antoine Stone; defendant testified that this was the first time he heard this information and he was completely shocked by the news.¹⁹ Approximately twenty minutes after Lawson arrived, homicide detectives—whom he later learned were Detective Weiser and Detective Lehner—knocked on defendant's door. When defendant opened the door and confirmed that he was Robert Jones, the detectives asked defendant to step out in the hallway and placed him under arrest. Because defendant wished to put on a pair of pants, the detectives brought defendant back into the apartment, during which time defendant stated, “I didn't kill Antoine Stone.” Defendant acknowledged that the detectives observed a BB gun, various ammunition, a gun cleaning box, and a mountain bicycle in his apartment. Defendant also told the detectives that “if they would have come a week earlier they would have found six guns in the apartment”—which was a true statement since defendant had “.25 semi-automatics” in his apartment.

19 In an audiotaped interview of defendant's fiancée, Amira Grant (a transcript of which was admitted as People's Exhibit 5), Grant indicated that defendant had learned about the Stone homicide a week prior to his arrest. Grant knew this because defendant talked to her about Stone's death after defendant learned of it in a telephone conversation with “Eddie” and defendant's mother.

Although defendant claimed to have been working as a security guard on a City College construction site around the date of the homicide, he admitted that he never mentioned this job to the Criminal Justice Agency (on October 1, 1994) after his arrest, and in fact said he was working for a “Temp Agency” on 14th Street in Manhattan at the time of his arrest. Defendant also admitted that following the guilty verdict, he told the Department of Probation that his “off the books” employment as a “security guard” ended in June 1994, several months prior to the homicide.

Defendant also admitted that he made several statements to Detective Weiser regarding guns—namely that he had a .25 but “got rid of it” because of his girlfriend, that he liked .45s because they were accurate, and that his “preferred weapon of choice is .380.” Defendant testified that he preferred a .380 because it was even more accurate and it was the gun that he used at the gun ranges.

Regarding his relationship with Stone, defendant admitted that he stated that he “did not shoot Antoine, that [he] knew him for many years and that about four years ago [he] had a homosexual affair with” Stone, but that “everything ended when [defendant] stole the older brother's jewelry.” Defendant testified that that portion of the statement to the detectives in which he said the affair occurred four years ago was not true because the affair occurred just two years prior to defendant's arrest. Defendant also explained that he did in fact steal some jewelry from Stone's home and sold it for drugs, but he and Stone spoke a few times and defendant apologized, before he moved to Harlem. Defendant acknowledged that the reason that he and Stone had a “falling out” was that Stone was very opposed to drug use.

Defendant testified that his fiancée Grant retained Mr. Turner as his counsel. He testified that Turner “barely spoke” to him, never visited him at Riker's Island and was “hard to deal with.” Defendant also testified that he asked Turner to visit the crime scene but Turner, as far as defendant knew, did not do so. Defendant admitted, however, that he lied in his sworn allegation when he alleged that Turner had told him that this was Turner's “first murder case.” Also, defendant admitted that Turner's principal defense strategy—challenging the “uncertain” identification testimony of Purser and the unreliable identification testimony of Englebert, and relying on the exculpatory nature of the dying declaration—“all made sense to” defendant. Defendant nevertheless insisted that “more work” should have been done in connection with the trial strategy. Defendant also recognized that Turner made an “important application” to keep out prejudicial ballistics evidence recovered from defendant's home, as well as certain prejudicial statements that defendant made. Although defendant knew that the Judge granted that application and defendant “thought we were okay,” defendant testified that he still did not know whether he was going to get “convicted” at that point in the trial and would have wanted a re-trial after the Weiser blurt out.

Defendant testified that he recalled that during the trial, Detective Weiser blurted out that the “shell” in the Stone homicide was “matched up to another shell, to another murder.” According to defendant, Turner never discussed with defendant how Turner should address the Weiser blurt out. Defendant admitted that before the jury rendered its verdict, defendant attempted to escape because he was “extremely emotional” and he did not “feel like [he] was being represented fairly.” He acknowledged that he later pled guilty to a felony, arising out of his assault of the court officers and his attempt to escape.

During defendant's testimony, he would often answer a question and then immediately change his answer when it appeared that the answer was implausible or inconsistent with his prior or proposed testimony. For example, when defendant was asked about his condition—his mental state—on the night he was in a cell after his arrest, he first said, “I was a little hung over from the night before.” The following colloquy then ensued:

DC: Were you on drugs at the time?

DEFENDANT (D): I'd been using drugs, yes.

DC: Were you on drugs at the time of your arrest?

D: No, I was intoxicated.

The Court: You were what?

D: Intoxicated. Hung over.

The Court: From drugs or alcohol?

D: Alcohol.

Of course, defendant's initial answer that he had been using “drugs” the night before he was arrested contradicted his earlier testimony that he “stopped using drugs” since 1993.

On another occasion when defendant was asked the simple question of whether he was working when Stone was shot, he first answered, “yes,” and then changed his answer to “no.” Likewise, when defendant was asked at some point whether he had “heard anything about” Edward Lawson, defendant first said, “no,” and then said, “I did hear something about him.” When he was asked, “what did you hear about him?” defendant answered: “He was saying that he was a CI. That he basically worked for the police department and he was a known snitch and normally they would use him to, you know, to bust different drug spots in the neighborhood and in the area.” Yet, when defense counsel followed up with the question of whether Lawson ever told defendant that he was a confidential informant, defendant inexplicably answered, “no.”

On another occasion, when defendant was asked whether he signed the Miranda form before, during or after he made statements in the jail cell, defendant first was uncertain, saying it “was probably after I made those statements rambling” in the jail cell. When defense counsel asked defendant if he was “sure,” however, defendant answered, “yeah.” On cross-examination, however, defendant again testified that he was “not sure” if he made the “bullpen” statements before he was read his Miranda rights. Upon refreshing his recollection by reviewing several police reports, however, defendant recalled that in fact he was provided Miranda warning before he made his statements in the cell.When the People questioned defendant about his gun selling efforts, defendant likewise changed his testimony as to why he stopped selling guns. Defendant initially testified that he stopped selling guns because he “just didn't feel good about it so [he] just didn't do it.” The followed colloquy then ensued:

P: And you didn't feel good about crossing several state lines with illegal guns?

D: That's why I stopped.

P: Well, you stopped because you got arrested; isn't that true? ... I'm saying you only sold guns about a week before you got arrested; right?

D: Yeah, yes.

P: So your stopping had a lot to do with being arrested and unable to go out and buy and sell guns anymore; right?

D: Yes, yes.

Defendant also had a difficult time explaining how or why he lied in his sworn affidavit when he alleged that Turner told him that this was Turner's first murder trial. Defendant first evaded questions from the Court and the People regarding exactly when he realized that he made his mistake. The People asked defendant two times when it was that he discovered that the affidavit was inaccurate and twice defendant avoided the question. When the Court then followed up, asking defendant whether he “realize[d]” the affidavit was “false” when he signed it in July, defendant simply answered, “I didn't think about it after that.” Defense counsel and the Court then returned to this topic on re-direct but defendant's answers were inconsistent:

DC: And there was some suggestion about the statement in the affidavit under oath. Was it your intention to lie in that affidavit?

D: No

DC: When did you learn that it was not Mr. Turner's first murder trial?

D: It was brought to my attention some time later.

......

DC: Was it after you wrote the affidavit—after you signed the affidavit?

D: Yes.

DC: At the time that you signed the affidavit, was that your best understanding of the relevant facts?

D: Yes.

C: You just told me when you signed the affidavit that you knew it wasn't true that Mr. Turner said that. Didn't you tell me that a little while ago? I specifically asked you a pointed question: why you would swear in an affidavit that Mr. Turner told you, not that other people told you, that Mr. Turner told you that this was his first murder case?

D: Judge, I just messed up. I just put it in there.

C: Now, you're saying that you didn't realize at the time that you did it? That it wasn't true? When you wrote that in your affidavit, you knew it wasn't true, is that correct, that Mr. Turner had told you that that was his first trial?

D: (no response).

C: I'm asking you now. I'm confused.

D: I'm trying to remember. It has been a while.

DC: Do you have a recollection one way or another?

D: Not really.

Also, when defendant explained that it was his sister and fiancée who told him that this was Turner's first murder trial, he never suggested that they received that information from Turner. And defendant never explained how he attributed that statement to Turner in his affidavit.

Retired Detective Charles Lehner

Lehner, a retired NYC Police Department Detective, testified that in 1994 he worked in the 101st Precinct's Detective Squad with Detective Jerry Weiser, who passed away in 2002. He testified that in his experience as a detective and police officer, primary responsibility for a case shifts from the Police Department to the District Attorney's Office after the indictment is voted, and at that point the District Attorney's Office is responsible for the prosecution and for contacting witnesses.

Lehner, who retired in 2003, testified that on September 10, 1994, Weiser was assigned to the shooting death of Stone which occurred on “Mott and Eggert,” and Lehner helped Weiser with the investigation. Although Lehner attempted to refresh his recollection of the Stone investigation and trial by reviewing numerous documents, he admitted that he did not independently recall anything about the case except for a few selected events. He recalled, for example, the following: that the investigation was slow for the first few weeks after the murder; that an anonymous crime stoppers tip gave them a lead which lead to defendant's arrest;²⁰ that they executed a search warrant at defendant's apartment; and that Lehner did not play any role in the prosecution of defendant after defendant was indicted.

20 According to DD5 Number 25, the Crime Stoppers Call was made on September 25, 1994.

Lehner testified that he was aware that there were allegations in this case that he and/or Weiser told Purser “to lie,” “showed [Purser] who to pick out in the photos,” “threatened [Purser's] children,” “went to [Purser's] husband's place of employment,” told Englebert “the length of defendant's record,” “who to pick out,” or that “we have our man,” and pressured Enlgebert to say the “make of the bike” during his testimony. Lehner denied that he ever did any of these things or that Weiser ever did any of these things in Lehner's presence, and testified that he knows that he never did these things, and that Weiser never did these things in his presence, because they have never done such things ever, “in any case.” He further testified that he: never “point[ed] out the photo of any individual and say, let me make it easier for you that's the man;” ‘ never “le[ft] a photo book with a suspect's picture in view for a potential witness;” never “falsif[ied] the results of any lineup;” never “appear[ed] at a witnesses' home in an effort to extract an identification from a witness who insisted on an inability to identify;” never “suggest[ed] that [he] w[as] aware of a potential witness's spouse's place of employment, the schedule of her children” or her “vulnerability [with] immigration;” never told “a witness in a homicide that they could provide false testimony at a proceeding, because the defendant would be sent to a program, or a trade school upon conviction;” never went “to the home of a witness and offer[ed] reward money” after a conviction; never “pressure[d] a witness to testify in ... a trial in a false manner;” never “provide[d] written instructions to a witness;” or never “instruct[ed] a witness to just say yes to whatever is asked” or to “identify the person sitting next to the lawyer who is in the picture we showed you.”

According to Lehner, nor did Detective Weiser ever do any of those things in Lehner's presence. Lehner admitted, however, that he was not with Detective Weiser “the entire time” during the investigation into the Stone homicide and did not know what Weiser may have done or said outside of Lehner's presence. Lehner also testified that ADA Pomodore never told him or Weiser in Lehner's presence to “fix” a reluctant witness. Lehner testified that he was “proud of [his] service for twenty years,” working on over three thousand crimes in “two of the toughest precincts in the City,” and that he is “angry” about the untrue allegations of misconduct leveled against him.

Assistant District Attorney Debra Pomodore

Pomodore testified that she currently works as a Senior Trial Assistant in the Homicide Trial Bureau, and has worked in the Queens District Attorney's Office for almost 28 years. Pomodore testified that she was assigned to defendant's case in November 1994, when the Homicide Trial Bureau was located in Jamaica, Queens close to the Supreme Court building on Sutphin Boulevard, where homicide cases were often tried. Pomodore also explained that homicide cases generally would not be assigned to her until sometime after the Supreme Court arraignment on the indictment. That is also the “line in the sand” point in which the investigation conducted by the New York City Police Department generally ends, and the prosecution conducted by the Queens District Attorney Office generally begins. Although there is sometimes some “overlap,” usually once a case is indicted, the Queens District Attorney's Office no longer relies upon the New York City Police Department resources to conduct further investigations; instead the Office would rely upon their own Detective Squad. Pomodore testified that given the foregoing protocols, she would not have utilized Detectives Weiser or Lehner to pick up witnesses in defendant's case to arrange for an interview. But Pomodore did not know whether Detective Weiser continued to investigate this case after defendant was arraigned on the indictment.

Pomodore testified that she is aware of the current claims of misconduct asserted by defendant. Pomodore categorically denied the allegations of misconduct leveled against her, saying that they are “one hundred percent false,” and that “no misconduct on anyone's part took place in [her] presence.” Pomodore testified that in her entire career she has never showed a witness a “mugshot” book, told a member of the New York City Police Department “to fix a witness,” or “to insure that a witness provide[s] ... an identification.” Pomodore further testified that in her career she has also personally never “instructed” or “pressured” a witness to “provide false testimony.”

Pomodore testified that she recalled the three witnesses who testified at defendant's trial in 1996 and at the CPL 440 hearing in 2014: Rodriguez, Purser and Englebert. Pomodore testified that Rodriguez never told her that he saw the man on the bicycle after he heard the shots on the night of the shooting, or the direction in which the man went. Pomodore admitted, however, that she did not recall whether she asked Rodriguez whether he saw the man on the bicycle. Nor did Pomodore purposely neglect to adduce a portion of his testimony.

As to Purser, Pomodore testified that she was “anxious,” “very apprehensive” and “fearful.” Pomodore inferred that this apprehension was the result of the fact that Purser knew that “defendant had seen her” on the night of the shooting and he “knew who she was.” Pomodore admitted, however, that witnesses may be fearful for many reasons and Pomodore did not specifically remember whether she asked Purser if she was afraid. According to Pomodore, Purser “absolutely” never expressed an inability to identify the assailant or expressed doubts about her prior identifications. Nor did Purser ever indicate to Pomodore that the detectives were pressuring her to testify about anything. Pomodore also insisted that she never showed Purser a “mugshot book,” or “lineup photos,” and never “tape record[ed] a conversation with her.”

When Pomodore was asked whether Purser's identification of defendant at trial was “uncertain,” Pomodore asserted that she “did not believe [Purser] was uncertain.” Pomodore attributed Purser's hesitancy at trial instead to her “fear” and “visceral reaction to looking” at defendant and to her “particular way of talking.”

Pomodore likewise testified that Englebert never expressed an “inability to identify” the person on the bicycle, or expressed doubts about his prior identifications. Nor did Englebert ever indicate to Pomodore that the detectives were pressuring him to testify about anything or to identify the manufacturer of the bicycle. Pomodore testified that she also never pressured him to identify the manufacturer of the bicycle or to change any portion of his testimony.

Regarding the notebook which contained references to drug dealing, Pomodore recalled that there was a DD–5 which indicated that a Detective Van Housen from a different precinct took custody of the notebook and vouchered it in his precinct. When Pomodore later attempted to locate the notebook by reaching out to Detective Van Housen and directing others to search for it, it became clear that the notebook could not be found. Pomodore testified that at some point she informed Turner that she “exhausted all efforts” to find the lost notebook to no avail. Pomodore testified that she had the impression that Turner believed the notebook was “radioactive” and that Turner was not “disturbed about the fact that it could not be found.”

Pomodore further testified that she was aware that there was a “ballistics report that matched the ballistics from this case” and another shooting that occurred eight days earlier, which was an “open case,” and “investigation,” and for which no arrest had been made. Pomodore testified that she turned the reports over to Turner “very early on” in the case, but Pomodore did not recall if she discussed it further with Turner. Pomodore admitted, however, that Turner never asked her to follow up or pursue anything further for him, and never asked for the “investigative file” in connection with the other shooting.

Assistant District Attorney Daniel Saunders

Saunders, Deputy Executive of the Major Crimes Division in the Queens District Attorney's Office, testified that in 1994, he served as Chief of the Homicide Trial Bureau and assigned defendant's case to ADA Pomodore after the case was indicted.

Saunders testified that after defendant filed his CPL 440 motion, he interviewed Englebert, Purser and Rodriguez. Saunders testified that Englebert said that after being unable to make an identification from the photo books, the police showed him a number of loose photos. Englebert could not remember how many photos there were but it could have been six, seven or eight. Englebert identified one of the photos of a man who he recognized as the man on the bicycle. When Saunders specifically asked Englebert whether anyone did “anything inappropriate or improper” to influence him, or make any suggestions to him regarding his identifications during the photo display, the lineup, his grand jury and trial testimony, Englebert said, “absolutely not” and stated that he “picked whom he wanted to pick.” Although Englebert was initially cordial and friendly, at some point Englebert became “tearful” and began “sobbing,” and, responding to Saunders questions, said that “it's all [his] fault” that “there is an innocent man in jail,” and that Englebert “made a mistake” by identifying the “wrong man.” Upon further questioning, Englebert explained to Saunders that the defense investigator told him that defendant is an “innocent man,” that the defense had “proof that he is an innocent man” and that Englebert had “made a mistake.” Englebert told Saunders that he did not think that he made a mistake after the trial or during the twenty years after he testified, but began to think that he made a mistake after the defense team told him he made a mistake.

Saunders also interviewed Rodriguez. When Saunders asked Rodriguez what he recalled from the day of the shooting, Rodriguez first told Saunders that the shooting “happened sometime in the afternoon,” around 1 pm. Rodriguez indicated that after he heard two gunshots, he brought his nephew to a back room, looked out the window and observed the man on the bicycle. When Saunders confronted Rodriguez with the fact that he never previously said he saw the man on the bicycle in his grand jury or trial testimony or to police officers at the scene, Rodriguez said that if he did not previously indicate that he saw the man on the bike, it must have been because he “didn't know that it was important.” But when Saunders then read Rodriguez excerpts from his grand jury and trial testimony in which Rodriguez said that the dying man had claimed that a drug dealer on a bicycle shot him, Rodriguez became “red in the face” and appeared “angry,” and began to complain that he had asked the defense team to provide him with a copy of “testimony” before he “signed anything,” but they would not let him “see it.” Pointing to the excerpts of his testimony, Rodriguez then stated they contained the truth, and that if they were different than the affidavit, then what he said “under oath” in his testimony was “the truth.” Saunders then promised to send Rodriguez a transcript of his testimony.

According to Saunders, Rodriguez also indicated that the defense team told him that defendant “was an innocent man,” that the defense team had “proof that he was innocent,” and that “he shouldn't be in jail.”

Former Assistant District Attorney Piper Paul

Piper Paul, a former Assistant District Attorney with the Queens District Attorney's Office, testified that on September 6, 1994, she was assigned to the Homicide Investigations Bureau which required her to sometimes be on “pager duty,” requiring her to respond to homicides or police shootings.In 1994, the Homicide Investigation Bureau was in Kew Gardens and the Homicide Trial Bureau was in Jamaica, Queens. Paul testified that her participation in the prosecution of defendant began when she was paged about the shooting on September 10, 1994. She eventually prepared documents related to the shooting, including the search warrant, met with witnesses, prepared the case for grand jury presentation and presented the case to the grand jury with ADA Neil Morse.

Paul testified that she attended the lineup in which Englebert identified defendant on September 30, 1994, and recalled that Englebert had previously identified defendant in a photo array containing six photos and was never shown a single photograph of defendant in Paul's presence. During Paul's meetings with Englebert, he never expressed any inability to identify defendant and never claimed that he received “pressure” from law enforcement to participate in the identification of defendant.

Although Paul testified that she was not present when Purser identified defendant at the lineup, Paul did recall meeting with Purser. During the meeting, Purser did not express an inability to identify defendant or claim that she received “pressure” from law enforcement to identify defendant. Paul did recall, however, that Purser had expressed that she “was afraid to identify defendant,” because he had seen her “through the window and she was afraid of retaliation” and “felt very vulnerable” since her “family lived there,” she “lived in the neighborhood,” and she was seven months' pregnant.

Paul also recalled meeting with Rodriguez. Paul testified that Rodriguez never told her that he looked out of his window and saw a man on a bicycle. On the contrary, Paul testified that she recalled that Rodriguez indicated that he did not see anyone on a bike outside of his window.

Paul testified that sometime in December of 2013, she talked to attorney Hoffman who insisted that defendant was an innocent man and urged her to review the website that was created.

The Ballistics Link and the Rivera Homicide File

Prior to the commencement of the CPL 440 hearing, defendant moved for disclosure of the file in the on-going, open investigation in the Rivera homicide, the ballistic evidence of which had been linked to the Stone homicide. Defendant argued that the Rivera file would reveal Brady material which should have been disclosed to defendant prior to his trial. The People initially objected to the disclosure of the file because the Rivera homicide was still an open, “active” investigation. The People's initial opposition to disclosure aside, the People nevertheless did reveal that Rivera was a homeless man who was shot in the same precinct as Stone about eight days prior to the Stone shooting. The People also claimed that the only “person of interest” in the Rivera homicide was defendant, that there was no exculpatory material in the Rivera file, and that the “largest part” of the investigation in the Rivera homicide was “identifying the deceased.” The People also indicated that a “re-investigation” of the Rivera homicide was underway.

Defendant did not substantiate his speculative claims that the Rivera file would contain Brady material, and was unable to cite any statutory or case-law authority which would have compelled disclosure. Nevertheless, the Court indicated that, with the consent of the parties, it would review the file in camera for the presence of Brady material out of an excess of caution. The Court later reviewed the Rivera file during in camera proceedings on April 29, and May 15, 2014, and in the Court's Chambers. At the May 15, 2014 proceeding, the Court requested that the People disclose to defendant the various documents.²¹

21 The defense's objection to the ex parte nature of the in camera proceedings, as well as their requests for disclosure of the proceedings and their demand for the full Rivera file, was addressed in the Court's interim order, dated September 8, 2014 (see generally People v. Contreras, 12 N.Y.3d 268 [2009] [authorizing Court's use of ex parte proceedings where Court reviews documents in camera to determine whether documents contain Brady material] ).

Because fingerprints lifted from a public railing on the beach boardwalk (directly above where the Rivera shooting occurred) did not match defendant's fingerprints, the Court requested that the People disclose to defendant that 1994 fingerprint report (dated October 5, 1994) which was in the Rivera file, as well as reports (and an e-mail) which reflected that a more recent fingerprint comparison with negative results was also completed during the re-investigation. The Court also requested that the People disclose a one-page handwritten document prepared by Detective Moran,²² the detective assigned to the Rivera homicide. That document sets forth the ballistics link between the Rivera and Stone homicides, indicating the following:

22 Although the People, in their letter to defense counsel and during a July 8, 2014, court proceeding, originally indicated that the one-page handwritten document was written by an unnamed person, in a Court-initiated telephone conference with the parties on July 21, 2014, the People conceded that the document was written by Detective Moran.

9/30/94 1900 HRS/with Waldren

Interviewed Robert Jones

Named Edward Lawsen (37), Prints to Latent

Finally, the Court requested that the People disclose to defendant a three-page handwritten, narrative document which references (a) the Rivera and Stone homicides; (b) the ballistic link between the homicides; and, (c) defendant's name and the names of three others (“Edward Lawsen,” “Keisha Brown,” and “Amira Grant”), under or near the word “Witnesses.” The narrative also makes a reference to defendant's trial and sentencing in 1996.

The People provided the foregoing documents to defendant in a letter on May 19, 2014. Defendant responded to the letter by moving to reopen the CPL 440 hearing, arguing that the recently disclosed documents constitute Brady material. The People opposed the motion to reopen the CPL 440 hearing, arguing that the recently disclosed documents do not constitute Brady material and that there is really nothing to further explore at a re-opened hearing.

The Court then heard oral arguments regarding the newly disclosed documents on July 8, 2014. The Court, in requesting that the People disclose the foregoing documents, did not make any finding that the documents constituted Brady material. Instead, the Court explained that the Court, in requesting that the People disclose the foregoing documents, simply wished to afford defendant an opportunity to be “heard”—to set forth his arguments, or supplement his arguments, regarding his Brady and ineffective assistance of counsel claims. The Court also indicated that the Rivera file revealed that defendant was the “primary suspect in the Rivera murder,” and that the Court “will be making findings” later about the newly disclosed documents and the Court's in camera review. The Court denied the application to reopen the hearing but permitted the parties to submit further briefs regarding the issues raised.²³

23 This Court is in possession of a sealed file containing the minutes of the in camera proceedings, as well as the un-redacted Rivera homicide file that the court reviewed during those proceedings.

In the Court's interim order dated September 8, 2014, the Court otherwise expressly denied the defense motion for full disclosure of the Rivera file on Brady grounds, finding that there is nothing in the Rivera file, save the documents already disclosed, which even arguably or remotely constitutes Brady material. On the contrary, the Court's review of the Rivera file confirmed the People's contention that defendant was a person of interest in the Rivera homicide after the ballistics link was discovered. The Court's review also confirmed the People's contention that most of the Rivera investigation focused on identifying the deceased.

Legal Conclusions

The Actual Innocence Claim

Criminal Procedure Law § 440.30(4)(a) provides, in pertinent part, that “upon considering the merits of [a motion to vacate,] the court may deny it without conducting a hearing if [t]he moving papers do not allege any ground constituting a legal basis for the motion.” Moreover, “[a] prima facie showing of actual innocence [requiring a hearing] is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court” (People v. Woods, 120 A.D.3d 595, 990 N.Y.S.2d 827 [2d Dept 2014] [motion to vacate based upon an actual innocence claim was properly denied without a hearing]; see People v. Caldavado, 116 A.D.3d 877, 878, 983 N.Y.S.2d 410 [2d Dept 2014] [same]; cf. People v. Hamilton, 115 A.D.3d 12, 27, 979 N.Y.S.2d 97 [2d Dept 2014] [finding that defendant had established “a prima facie showing based upon evidence of a credible alibi and manipulation of the witnesses, and the fact that the witnesses against him had recanted”]; People v. Jones, 115 A.D.3d 984, 982 N.Y.S.2d 770 [2d Dept 2014] [defendant made prima facie showing warranting a hearing where defendant, “in support of his claim of actual innocence, ... submitted affidavits from alibi witnesses who ... had not testified at trial”] ).

Here, defendant initially asserted a general claim of actual innocence based upon the results of a polygraph examination and his vague claim that “there is evidence that was suppressed that someone else committed the murder.” Almost five months after filing the motion to vacate, defendant for the first time submitted an affidavit in which he asserted that he is innocent. The Affidavit was attached to his “Reply Memorandum of Law.”

Defendant's claim fails to set forth “a sufficient showing of possible merit to warrant a fuller exploration by the court” (People v. Woods, at 595, 990 N.Y.S.2d 827 ), and therefore his motion to vacate the judgment of conviction on this ground is denied without a hearing. Significantly, as defendant concedes, the results of a polygraph test are legally inadmissible and cannot warrant a hearing (see People v. Stevens, 95 A.D.3d 1451, 1453–1454, 944 N.Y.S.2d 343 [3d Dept 2012] [lower court properly held that defendant's claim of actual innocence based upon the results of a polygraph examination did not warrant a hearing]; see generally People v. Shedrick, 66 N.Y.2d 1015, 1018 [1985] [“The reliability of the polygraph has not been demonstrated with sufficient certainty to be admissible in this State”] ). Furthermore, defendant's additional claim that “there is evidence that was suppressed that someone else committed the murder” is wholly unsupported by any actual factual allegations and is otherwise purely speculative. The claim, as it turns out, is also untrue. Finally, defendant's eleventh hour, self-serving claim of innocence cannot possibly be sufficient to warrant a hearing. Accordingly, in the absence of a prima facie showing of actual innocence, defendant's motion to vacate the judgment on this ground is denied.

The Newly Discovered Evidence Claims and Related Rosario/Brady Claims

Criminal Procedure Law § 440.10(1)(g) provides, in pertinent part, that the Court may vacate a judgment when: “new evidence has been discovered since the entry of 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.” At a hearing on a motion pursuant to CPL 440.10, defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL 440.30[6] ; People v. Tankleff, 49 A.D.3d 160, 180, 848 N.Y.S.2d 286 [2nd Dept 2007] ).

The Court of Appeals has enunciated a multi-part test for the sufficiency of newly discovered evidence in the context of post-verdict motions in People v. Salemi, 309 N.Y. 208, 216, 128 N.E.2d 377 (1955). The language in CPL 440.10(1)(g) is essentially a restatement of the Salemi test, which requires that the newly discovered evidence be “material,” “[non-]cumulative” and of such character that it “will probably change the result if a new trial is granted” (id. ). In this respect, newly discovered evidence which “merely impeach[es] or contradict[s]” the trial evidence would be insufficient (id. ). Furthermore, the newly discovered evidence “must have been discovered” sometime following the trial and “must be such as could not have been discovered before the trial by the exercise of due diligence” (id.; see also People v. Tankleff, 49 A.D.3d at 179, 848 N.Y.S.2d 286 ).

Newly discovered evidence may of course come in many different forms, including that of a trial witness who recants his trial testimony (see People v. Shilitano, 218 N.Y. 161, 170 [1916] [the People's argument that “evidence of recantation upon the part of a [trial] witness is not newly discovered evidence ... is in error”] ). The People are correct that courts have often looked upon recantation evidence with skepticism (see e.g., id. at 170, 112 N.E. 733 [“There is no form of proof so unreliable as recanting testimony;” recanting testimony has an “untrustworthy character”]; People v. Smalls, 70 A.D.3d 1328, 1330, 894 N.Y.S.2d 791 [4th Dept 2010] [“It is well established that recantation evidence is inherently unreliable”]; People v. Lawrence, 247 A.D.2d 635, 669 N.Y.S.2d 242 [2d Dept 1988] [“It is well settled that there is no form of proof so unreliable as recantation testimony”]; see also People v. Lavrick, 146 A.D.2d 648, 536 N.Y.S.2d 548 [2d Dept 1989] ; People v. Cassels, 260 A.D.2d 392, 687 N.Y.S.2d 681 [2d Dept 1999] ). Where the “recantation [is] true,” however, recantation evidence “may ... destroy the basis upon which the judgment of conviction rests and might be sufficient of itself to justify the granting of a new trial” (Shilitano at 170, 112 N.E. 733 ; see also People v. Singh, 111 A.D.3d 767, 974 N.Y.S.2d 578 [2d Dept 2013] ; People v. Bellamy, 84 A.D.3d 1260, 923 N.Y.S.2d 681 [2d Dept 2012] ; People v. Bronson, 32 Misc.3d 201, 921 N.Y.S.2d 509 [Crim Ct, Queens County 2011] ).

When the purported newly discovered evidence is recantation evidence, courts should consider the following factors: “(1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reconfirmed in the recantation; and (6) the relationship between the witness and the defendant as related to the motive to lie” (People v. Wong, 11 A.D.3d 724, 725–726, 784 N.Y.S.2d 158 [3d Dept 2004] ; see also People v. Tucker, 40 A.D.3d 1213, 1214–1215, 834 N.Y.S.2d 590 [3d Dept 2007] ). In addition, a recantation may “acquire an aura of believability” where it is corroborated by “the testimony of ... other witnesses at the [recantation] hearing” and where there is a “lack of trial evidence connecting defendant with the commission of the crime” (Wong at 726, 784 N.Y.S.2d 158 ).

Here, the Court finds that the newly discovered recantation evidence provided by Englebert and Purser and the new evidence provided by Rodriguez is not “true” (Shilitano at 170, 112 N.E. 733 ), and lacks “inherent believability” (Wong at 725, 784 N.Y.S.2d 158 ), and therefore cannot “destroy the basis upon which the judgment of conviction rests” (Shilitano at 170, 112 N.E. 733 ). Specifically, the Court finds that defendant failed to prove that the witnesses falsely identified defendant or that the detectives and/or the trial ADA engaged in any form of misconduct at all. In the Court's view, there is indeed no “reasonable probability” (id. at 180, 112 N.E. 733 [Cardozo, J., concurring; Majority Opinion, agreeing with Cardozo, J.] ), that the recantation witnesses are credible and reliable. And considering the “likely cumulative effect” (People v. Singh, 111 A.D.3d at 768, 974 N.Y.S.2d 578 ) of the unbelievable and unreliable recantation testimony, it cannot be said that the “new evidence” (id. ) was “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g] ). Accordingly, the motion to vacate the conviction on this ground is denied in all respects.

As a preliminary matter, it is important to recognize that the recantation witnesses here—Purser and Englebert—as well as the witness who testified to new facts—Rodriguez—were being asked throughout their testimony to recall events that happened almost twenty years ago and each of them expressed extreme recall difficulty given the time that has elapsed since 1994. Englebert, for example, admitted that his “memory may not be that good” and that he has a “bad memory,” and repeatedly complained during his testimony that he was being asked to remember events which happened almost twenty years ago (i.e., “it was nineteen years, how do you want me to keep that in my mind, I want to get it out of my mind, I don't want to think about that. I have other things to think about;” “it's been so long, I don't remember everything;” “I don't remember. C'mon. You know how long this is? What 18, 19 years? ... Can't remember everything. I'm old now. What do you want?”). Rodriguez likewise expressed difficulty in remembering the events of 20 years earlier, saying that the “passage of all this time had affected [his] ability to remember everything and that [he] had become confused over the years about the sequence of events,” and that “[i]t has been a long time. I don't remember much.... It is not like it happened a month or year ago. It is nineteen years.” Indeed, Rodriguez testified that when the defense team first approached him about the case, he told them, “it was a long time ago,” “I'm trying to get my bearings on it,” “after nineteen years.” Purser likewise testified, “[i]t's so much I can't remember it. It's so long and so much different activity into that case I can't put it together all to complete.”

Furthermore, each of the three witnesses (Purser, Englebert and Rodriguez), agreed that their memories of the events on the night of the shooting were much better in late 1994 (when the shooting happened and when they talked to the police and testified in the grand jury) and early 1996 (when they testified at trial), than their memories are now in 2014 when they testified at the CPL 440 hearing. Of course, the Court is not suggesting that a 20–year–old memory could never be reliable—only that the Court must consider the recantation and new-evidence testimony in light of the passage of almost two decades, the frailty of human memory and the possibility that witnesses may be misremembering events (see People v. Watson, 43 Misc.3d 1234(A), *16–17 [Supreme Ct Bronx County 2014] ).

Second, it is important for the Court to be cognizant of the fact that Purser, Englebert and Rodriguez were being called upon to recall 20–year–old events and to commit their cold memory of those events to a certain narrative contained in a sworn affidavit without the simple benefit of first reading their prior testimony and their prior statements to the police.²⁴ Logic dictates that the accuracy and reliability of one's memory regarding 20–year–old events could only be enhanced by refreshing that person's recollection with available reports and transcripts of what that person said about those events on prior occasions. Indeed, Rodriguez figured this out immediately when he specifically demanded (but nevertheless did not receive), a copy of his transcript before he signed his CPL 440 affidavit. This is not an innovative approach to eliciting accurate testimony in CPL 440 hearings—it is simply a time—honored, common sense practice designed to promote an accurate account of prior events in all cases and is routinely used even when the events about which a witness is expected to testify happened just six months earlier, let alone twenty years earlier. Obviously, the best practice in this case would have been for the witnesses to read their prior testimony and police reports containing their statements before they committed themselves to swearing to the truth of statements contained in an affidavit.

24 Although Lassalle testified that he believed that Purser and Englebert reviewed the transcripts of their testimony before they signed the affidavits, the Court credits the testimony of Purser, Englebert and Rodriguez that they did not read their trial testimony before they signed the affidavits inasmuch as they have no reason to lie or to be mistaken about these events that happened within the last year of their testimony.

The defense's failure to refresh their witnesses' recollection of 20–year–old events aside, the Court nevertheless finds that the hearing testimony from Purser, Englebert and Rodriguez is wholly unreliable and otherwise merely impeaches and contradicts their trial testimony. Of course, as is the case of all recanting witnesses, Purser and Englebert admitted that they knowingly provided false testimony under oath—they knowingly lied—when they testified in the grand jury and at defendant's trial. Indeed, this is the reason why for almost a century courts have been saying, “[t]here is no form of proof so unreliable as recanting testimony” (Shilitano at 170, 112 N.E. 733 ).

Because the defense relies mostly upon Purser to overturn the conviction, the Court will address her testimony first. Considering the various factors set forth by People v. Wong, the Court declines to credit the “substance of [Purser's] recanting testimony” (Wong at 725, 784 N.Y.S.2d 158 )—that she falsely identified defendant at trial because of misconduct on the part of detectives and the trial ADA.

Purser's current claim that she could not make an identification because she did not “see” or “know” the biker's face, aside from being completely inconsistent with her trial and grand jury testimony, is belied by her numerous admissions at the CPL 440 hearing. Significantly, Purser conceded at the hearing that she observed two black men, one of whom had a bike, talking on the “bright and clear” street outside of her window about twenty to twenty-five feet away for about fifteen to twenty minutes; that she was able to provide a clothing description of the man on the bike; that the man on the bike rode his bike toward another man who Purser knew as the “preacher” and that when they met, Purser heard a “pow, pow,” and observed flashes of light emanating from where the men met; and that the man on the bike twice looked up into Purser's eyes and stared at her—the first time while he was standing under her window and the second time when he returned to the other guy after the “pow, pow.” Indeed, Purser's concession, after some prodding on cross-examination, that she was able to recognize Stone—“the preacher man”—further away on the street, raises some serious doubts as to how Purser was unable to see the face of the biker who was standing under her window for 15 to 20 minutes and looked directly at her two times.

Purser's admission of the foregoing facts demonstrates that she was not being honest with the Court when she testified that she did not see the face of the biker and could not identify him.²⁵ Those facts also demonstrate that her equivocal identification of defendant at trial (and at the lineup), far from being “false,” was actually true, based as it was upon a sufficient, though not perfect, opportunity to observe. Indeed, former ADA Piper Paul, whose testimony the Court fully credits, and ADA Pomodore, whose testimony the Court fully credits, each testified that when they met with Purser she never expressed an inability to identify the man on the bike.In short, the “facts established at trial” have not been “reaffirmed in the recantation” (Wong at 726, 784 N.Y.S.2d 158 ). On the contrary, Purser's detailed descriptions of the perpetrator at trial—his complexion, age, stature, and clothing—discredits her recantation, as does her failure to raise during trial any of the claims of misconduct which she raises now, notwithstanding the fact that Purser was afforded numerous opportunities to raise these claims during the open-ended, non-leading questions asked by the prosecutor during the trial.

25 Purser's admissions at the hearing also demonstrate that she was not being honest with the police when, according to Purser, she repeatedly told them during the beginning of the investigation that she did not see “anything” and “did not know anything” about the shooting.

Of course, the Court does not doubt that Purser did not want to identify anyone related to the shooting. But that reluctance, the Court finds, had nothing to do with an inability to identify, and instead had everything to do with her reasonable fear arising from the fact that the shooter had stared directly at her while she stood at the window—once while he was standing there and then a second time after the shooting. This explanation for her reluctance is consistent with her own CPL 440 hearing testimony in which she told the detectives that she did not want to look at photos because she was afraid that the shooter had recognized her, given that he stared at her before he left the scene. It is also consistent with DD5 Number 21 (which reported that Purser did “not wish to view photos out of fear that the perp saw her because at one point he stared at her”), with the testimony of former ADA Piper Paul (who testified that Purser had expressed that she was “afraid to identify defendant” because he had seen her “through the window and she was afraid of retaliation”), and with the testimony of ADA Pomodore (who testified that Purser was “very apprehensive” about the fact that “defendant had seen her” on the night of the shooting and he “knew who she was”).

Likewise, the Court declines to credit Purser's claim that the detectives and the trial ADA engaged in misconduct to pressure Purser to make a false identification. Nor does the Court credit any of Purser's other various claims of misconduct, such as the claim that ADA Pomodore tape-recorded her interview with Purser.²⁶ Initially, Purser's claims were specifically denied by ADA Pomodore and retired Detective Lehner. The Court fully credits ADA Pomodore's consistent and forthright testimony that she did not show Purser a “mugshot” book or pressure her to make an identification, or tape-record a conversation with her, or direct detectives to “fix” Purser.²⁷ Indeed, Pomodore's testimony is consistent with the non-leading way in which Pomodore questioned Purser at trial, asking numerous open-ended questions which provided Purser with various opportunities to disclose to the judge and jury, in open court, the allegation of “pressure” and other improprieties.

26 Of course, Purser also testified that someone from the defense team took notes during their interview of her but the defense team promptly denied the truth of that claim.

27 Purser's testimony that the detectives brought her to an alleged meeting with ADA Pomodore on the very day she testified at trial and in the same building (“on Queens Boulevard”) in which the trial occurred is inconsistent with the protocol about which Detective Lehner and, Assistant District Attorneys Pomodore, Paul and Saunders testified, and is otherwise clearly not true given the fact that the trial in this matter occurred in the Jamaica courthouse.

The Court also fully credits retired Detective Lehner's consistent and forthright testimony that he never, and Detective Weiser never, in Lehner's presence, pointed out a photo to a witness or falsified the results of a lineup or “extract[ed] an identification from a witness who insisted on an inability to identify.” Of course, Detective Lehner's credible testimony was supported by, and consistent with, ADA Paul's credible testimony that when she met with Purser prior to her grand jury testimony, Purser never claimed that law enforcement officers were pressuring her to identify defendant—all of which constitutes “evidence corroborating the trial testimony” (Wong at 725–726, 784 N.Y.S.2d 158 ).

The testimony of ADA Pomodore, retired Detective Lehner and former ADA Paul aside, Purser's testimony about the alleged pressure to identify is, standing alone, simply implausible and does not have the ring of truth. It does not make any sense, for example, for a detective to bring a witness to a lineup after the witness persists in refusing to make a photo identification (as Purser testified that she did), or for a prosecutor to bring a witness to the grand jury to testify about a lineup identification after the witness persisted in refusing to make a lineup identification (as Purser testified that she did). Nor does it make sense for a prosecutor to bring a witness to the trial and ask the witness to make an in court identification, immediately after the witness boldly told the prosecutor that she could not make an in court identification (as Purser testified that she did). It also does not make sense to the Court that Purser, after repeatedly standing up to the two detectives and an assistant district attorney, would, for no sensible reason, just completely collapse, abandon her conviction and make an identification, however uncertain, in court in front of a judge and jury. In the Court's view, Purser's story is implausible every step of the way.

Nevertheless, Purser's claims that she refused to make a lineup identification and that she merely said that defendant looked like the man in the photos (which were improperly shown to her), are completely belied by the lineup form which, as Purser admits, contained not only her handwriting but her signature. That form, admitted as Defendant's Exhibit C, indicates that Purser recognized defendant (“I think it's No.4,” who “has the same body has the same face”), as the man “on the bike” who “shot the man.” And that form is completely consistent with Purser's testimony a few days later in the grand jury, where she never claimed that she was pressured to make an identification. Accordingly, the foregoing evidence likewise “corroborate[s] the trial testimony” (id. ).

Significantly, Rodriguez's experience with the same detectives and ADA does not corroborate Purser's claims. Rodriguez testified that when he told the detectives that he could not identify anyone, they never forced him to go to the precinct, or otherwise pressured him in any way to identify anyone or even look at photographs. Rodriguez's testimony in this regard was also corroborated by Investigator Lassalle's testimony. Rodriguez also conceded that the detectives, the grand jury ADA and the trial ADA never attempted to “get [him] to change” his proposed testimony, or “coach[ed]” him in any way.

Furthermore, the Court declines to credit the “reasons [Purser] offered” for her false “trial testimony” (id. )—namely that she was afraid that the detectives, after learning of her immigration status and mentioning that they knew where her husband worked and where her children went to school, “could make tremendous trouble for [her] life” if she “didn't do exactly what Detective [Weiser] wanted [her] to do.” This belated explanation for providing false testimony at trial (and for suddenly abandoning her allegedly persistent refusal to identify anyone) is wholly unconvincing. Of course, Purser never said a word about this fear, nor the detectives' comments, to anyone at all until just before the CPL 440 hearing commenced almost 20 years after the fear allegedly arose and the detectives' comments were allegedly made. That is why this belated explanation—this afterthought—never made its way into the affidavits which Purser signed. And of course the fear and comments only surfaced after Hoffman, no doubt attempting to get to the bottom of why Purser would finally succumb to the detectives' purported demands, began to ask Purser the most obvious question not answered by her affidavits—namely, whether Detective Weiser was “like threatening” her. It appears to the Court that Purser took that question and ran with it. The problem is that her current explanation raises another question: if she was so afraid of what the detectives would do to her, why did she then give them less than what they demanded—an uncertain and equivocal identification.

Notably, Purser finally conceded that she mentioned the alleged fear and comments to Hoffman only after repeated questioning by the People at the CPL 440 hearing and repeated claims of an inability to recall—circumstances which caused the Court to believe that Purser was purposely attempting to hide the truth from the Court. It is very interesting, for example, that Purser claimed to not have a recollection of an event that occurred just a month earlier and yet was remarkably able to readily recall all sorts of other events occurring almost twenty years earlier. Further, it is difficult for the Court to believe that Purser would have this abiding fear of what the detectives would do to her inasmuch as she admitted that the detectives never threatened her, or even spoke to her in a “threatening” tone about her husband, children or immigration status. Indeed, Purser admitted that the detectives spoke about “it very humb[ly],” and she really “didn't take it for nothing at that time.”

Retired Detective Lehner, of course, categorically denied that he ever “suggest[ed]” to a witness “that [Lehner] was aware of a potential witness's spouse's place of employment, the schedule of her children” or her “vulnerability [with] immigration.” He also denied that Detective Weiser made such suggestions in his presence.

Nor does the Court credit the “reasons [Purser] offered” for the 20–year–old “recantation” (Wong at 726, 784 N.Y.S.2d 158 )—namely that she wanted to get the “burden ... removed from [her]” by “telling the truth” because the “truth will set [her] free.” Purser's testimony, delivered in a shouting tone, that she was speaking the truth now “to set [herself] free” was repeated numerous times during her testimony, often in an emotional, long-winded, agenda-driven narrative that was not responsive to the question being asked. That narrative came to life a little when, at the conclusion of her hearing testimony, Purser sought to approach defendant as she left the witness stand, seeking to “just say a word to Mr. Jones” directly. The Court is not persuaded by her out-of-context explanations which were previously never uttered to a single soul—not even her close family members or her spiritual counselors.

Yet, even when Purser was staying on point and answering the questions asked about the reasons offered for her recantation, the Court was left unsatisfied by her answers. Significantly, Purser initially insisted many times that the defense team never told her that defendant was “innocent” or that they were working to free defendant—an insistence that ran completely counter to what the defense team said to Englebert (i.e., that defendant was an “innocent man” in jail and that they had proof that he was innocent)²⁸ , Rodriguez (i.e., that defendant “is innocent, so they are going to reopen the case” and that “an innocent man was still in jail”), former ADA Paul (i.e., that defendant was an innocent man), the deceased's brother (i.e., that there was a ballistics link to another homicide and that defendant had “passed a polygraph”), and Justice Robert McGann, the trial judge (“it appears Mr. Jones is innocent”).

28 According to ADA Saunders, the defense team also told Englebert that he had “made a mistake,” at defendant's trial.

Her insistence to the contrary notwithstanding, on cross-examination Purser three times admitted, apparently unwittingly, that the defense team did in fact tell her that they were trying “to set [defendant] free”—unremarkable testimony which would have been consistent with what the defense team said to other witnesses. What is remarkable, however, is that Purser then inexplicably backed away from this unremarkable admission to tie it into her agenda-driven narrative. When the People and the Court confronted Purser about her prior testimony that the defense team said to her that they were “trying to get the truth to set him free” (emphasis added), Purser said, “I don't know about that”—even though she said it two times just seconds earlier. Purser then said, “[m]aybe I just said by setting him free, but I was trying to tell you [the Court] that I was speaking the truth to set me free ” (emphasis added). Again, this testimony simply did not have the ring of truth.

Finally, although the Court finds that Purser's general “demeanor ... at the evidentiary hearing” (Wong at 725–726, 784 N.Y.S.2d 158 ) was appropriate, except for those occasions when she shouted during her unresponsive narrative answers, the Court otherwise hesitates to rely on her testimony for the reasons set forth above. The Court also declines to credit her testimony because it was often characterized by numerous additional internal inconsistencies, including the following: (1) she first testified that “all of” her trial testimony—“everything”—was untrue but then testified that only her trial testimony regarding the lineup and in court identifications was untrue; (2) she first testified several times that the detectives brought the photo book to her home the first time they visited but then admitted that they did not have the photo book with them the first time they visited her; (3) she first told the detectives the first time they visited her that she did not see “anything” and “did not know anything” regarding the shooting but then admitted that she saw many things regarding the shooting; (4) she first testified that the detectives threatened to bring a police woman to “lock [her] up” when she refused to open the door but then admitted that the detectives threatened to have the police women “open up” the door, admitting that her initial testimony was untrue; (5) she first testified that the defense team never asked her questions but then admitted that they had asked her questions; (6) she first testified that she did not see the biker's face but then admitted that she did see the biker's face; (7) she first testified that she did not recognize the deceased but then admitted that she did recognize him; and, (8) she first testified that the “police actually told [her] to lie,” but then admitted that the police did not “say lie.” Significantly, the foregoing internal inconsistencies related to material and important issues, and cannot be fairly characterized as minor inconsistencies related to collateral or ancillary matters.

In short, the Court finds that Purser's recantation testimony was not true and the Court cannot credit it.

Likewise, the Court, considering the various factors set forth by People v. Wong as to Englebert, declines to credit Englebert's CPL 440 hearing testimony.²⁹ As a preliminary matter, the Court finds that Englebert's general “demeanor ... at the evidentiary hearing” (Wong at 725–726, 784 N.Y.S.2d 158 ) was wholly inappropriate for a witness who was claiming that he lied at trial and now “want[ed] to fix this.” Indeed, instead of exhibiting remorse and humility during the hearing—the appropriate attributes for one who is trying to rectify a grievous wrong—Englebert exhibited hubris, impatience, indifference, carelessness, hostility and disrespect. Englebert was evasive and imprecise in his answers, unapologetically failed to recall even recent events, refused to make eye contact with the Court, and was contemptuous of the Court's directives. In the Court's view, Englebert was playing fast and loose with the truth and was otherwise clearly misremembering important events which occurred 20 years earlier. Indeed, he inexplicably and stubbornly refused to concede facts that were not even in dispute, such as the fact that he originally testified at trial that he saw the man on the bike on Mott Street (not Eggert Place), and that he saw the man riding a “Ross” bike.

29 In his Affidavit in Support of the CPL 440 Motion, Englebert originally claimed that the police pressured him to testify that the shooter's bicycle was a “Ross” bike. At the CPL § 440 hearing, however, Englebert failed to provide testimony in support of this meritless allegation. Because defendant failed to prove this allegation at the hearing by a preponderance of the evidence, the motion to vacate the judgment on this ground is denied (CPL 440.30[3] ).

Further, Englebert was clearly biased against, and angry with, the attorney for one of the parties in this litigation—the District Attorney—calling the prosecutor's colleagues “goons,” and falsely accusing the prosecutor of going to Englebert's home. Englebert then stubbornly refused to accept an apology which he did not even deserve to receive in the first place.

Although Englebert testified that he was in court to “fix everything” because he “put an innocent man away,” he made it painfully clear that he did not want to be in the courtroom for long because, as he said it, “I got things to do. C'mon. I want—I got a life.... This is my day off. I got other things to do.” From the moment Englebert sat in the witness chair, he had his eyes on the exit door, yearning to go back “home” and “put this all behind [him],” and threatening not to return to court after a luncheon recess (“No, I am not coming back no more.... I'm going home. Read my lips. I'm going home”), despite the Court's order to return (“I don't care what you say. I'm not coming back. I'm going home”). Notably, Englebert's demeanor was so poor during the hearing that the Court is somewhat shocked that defendant's experienced attorneys are still asking the Court to rely on his testimony. This the Court will not do.

Englebert's poor demeanor aside, the Court declines to credit the “substance of [Englebert's] recanting testimony,” as well as the “reasons offered for both the trial testimony and the recantation” (Wong at 725–726, 784 N.Y.S.2d 158 ). Englebert testified that he falsely identified defendant as the man on the bike in a photo, at a lineup and at trial because he was “pressured” by the police and he “just wanted to get [this] over [and] done with and put this all behind [him].” According to Englebert, Englebert came to Court for the CPL 440 hearing because he “put an innocent man away” and now did not “feel right” and “want[ed] to fix this.”

The Court finds Englebert's recantation testimony—every single part of it—to be completely unbelievable and unreliable. Englebert's claim that he falsely identified defendant in a photo array, at the lineup and at trial because of police “pressure” was quickly cast in doubt by his own CPL 440 hearing testimony in which he stated that upon reviewing the photographs he “selected the person that [he] thought was the person that was riding the bicycle” and that it was possible that he selected defendant's photo “without [any] pressure” and that he made the selection not to “satisfy” the officers but because the photo “looked like the man on the bike.” Englebert also admitted that the police never told him to “do anything” and that the police did not say anything to him when they showed him the photos beyond saying, “we have more pictures to look at.”

Englebert's claims about false identifications and pressure were also cast in doubt by ADA Saunders' testimony which the Court credits in all respects. According to Saunders, when Saunders specifically asked Englebert whether anyone did “anything inappropriate or improper” to influence him, or make any suggestions to him regarding his identifications during the photo display, the lineup, or his grand jury and trial testimony, Englebert said, “absolutely not” and stated that he “picked whom he wanted to pick.” This of course is also consistent with Investigator Lassalle's acknowledgement that during his first interview with Englebert, Englebert never expressed any “lingering concerns” about having participated in the prosecution of defendant in 1994 and 1996, and never indicated that he was pressured by the police in any way.

Finally, Englebert's claims were also directly refuted by former Detective Lehner who testified that he never told Englebert “who to pick out,” or that “we have our man,” and that Detective Weiser also never said those things in Detective Lehner's presence. Likewise, ADA Paul testified that she attended the lineup in which Englebert identified defendant and recalled that Englebert had identified defendant in a photo array containing six photos. According to Paul, Englebert was never shown a single photograph of defendant in Paul's presence and never expressed any inability to identify defendant or a concern that the police were pressuring him to participate in the identification of defendant. Likewise, ADA Pomodore testified that Englebert never expressed an “inability to identify” the person on the bicycle, or expressed doubts about his prior identifications. Nor did Englebert ever indicate to Pomodore that the detectives were pressuring him to testify about anything.

Nor is there any indication in the police reports or Englebert's grand jury testimony that he falsely identified defendant or that the police pressured him in any way. Indeed, all of the aforementioned evidence “corroborat[es] [Englebert's] trial testimony,” and not his recantation testimony, and none of the “facts established at trial” have been “reaffirmed in the recantation” (Wong at 726, 784 N.Y.S.2d 158 ). Indeed, at trial, Englebert testified about the identifications with a degree of certainty and never intimated in the slightest that anyone at all pressured him in any way.

Significantly, Englebert's vague allegations of police “pressure” at the CPL 440 hearing amounted to a claim that the police and the District Attorney's Office “kept showing [him] pictures,” and “kept saying we got the guy.” Yet, when the People attempted to elicit testimony from Englebert as to who exactly “pressured” him, Englebert answered, “the DA and the detectives. How many times do you want me to tell you this?” Englebert, however, never answered the question and when the Court tried to refocus him on the question, Englebert said, “I'm answering his question. If they don't like it, then tough.”

Furthermore, Englebert demonstrated during the CPL 440 hearing that the word “pressure” is an extremely relative term. At one point he said, “it seemed like they were pressuring me” (emphasis added). Further, Englebert compared the “pressure” that he received from the police to the “pressure” that he received from the Court during the CPL 440 hearing. When Englebert repeatedly began to “cut off” the attorneys and the Court, the Court directed him, yet a third time, to let the attorneys complete their question before he begins to answer. And Englebert responded, “[t]his is what I am doing, again I am getting pressured ” (emphasis added). In Englebert's world, he is being “pressured” when he is being directed to follow the rules. The Court finds Englebert's recantation testimony to be completely implausible.

Furthermore, Englebert's claim at the CPL 440 hearing that the man on the bike was Caucasian is a brand new allegation that was not even contained in Englebert's Affidavit in support of the motion to vacate the conviction. The Court, of course, never ordered an evidentiary hearing on this claim. In any event, Englebert's newfound claim that the biker was Caucasian is contradicted by (a) his first statement to the police when “pressure” was never even alleged (man on the bike was Hispanic with “short afro”);³⁰ (b) his subsequent statements to the police (man on the bike “was either black or Hispanic, dark skinned”); (c) his grand jury testimony in which he identified a black man as the man on the bike; and, (d) his trial testimony in which he described the biker as a “dark” man and identified a black man as the man on the bike. Under these circumstances, the Court does not credit this claim either.

30 Given that Englebert first described the man on the bike as an Hispanic man with a short afro, his subsequent review of a photo book of “male white and Hispanics” does not prove that the man on the bike was white, given that the one photo book that was shown to Englebert contained photos of both white and Hispanic males.

Significantly, the “reasons offered” by Englebert for the “recantation” (Wong at 726, 784 N.Y.S.2d 158 )—he “put an innocent man away” and now did not “feel right” and “want[ed] to fix this”—was likewise cast in doubt by the testimony of ADA Saunders and by Englebert's own additional testimony. According to ADA Saunders, at some point during his interview of Englebert, Englebert became “tearful” and began “sobbing,” and in response to Saunders' questions, said that “it's all [his] fault” that “there is an innocent man in jail,” and that Englebert “made a mistake” by identifying the “wrong man.” Upon further questioning, Englebert explained to Saunders that the defense investigator told him that defendant is an “innocent man,” that the defense had “proof that he is an innocent man” and that Englebert had “made a mistake.” Yet, according to Saunders, Englebert did not think that he made a mistake after the trial or during the twenty years after he testified, but only began to think that he made a mistake after the defense team told him he made a mistake. Indeed, Englebert himself corroborated Saunders' testimony when he conceded that he did not even think an innocent man was in jail until the defense's investigator told him that an innocent man was in jail and that the defense team had proof that he was innocent.

In short, the Court finds that there is no truth in Englebert's recantation testimony or the “reasons offered” (Wong at 725–26, 784 N.Y.S.2d 158 ) therefor, and the Court declines to credit his testimony.

As to Rodriguez, although the Court finds that he was trying to be truthful and was not intentionally testifying falsely, the Court declines to rely upon Rodriguez's testimony that he observed the biker “fly” past his window towards Dickens Street after the shots, especially given his own concerns about the accuracy of his own memory.³¹ As indicated above, Rodriguez was concerned that the “passage of all this time had affected his ability to remember everything” and that he had “become confused over the years about the sequence of events.” Moreover, Rodriguez's other testimony at the CPL 440 hearing casts doubt on his new testimony about seeing the biker. Rodriguez admitted, for example, that he probably told ADA Saunders, “[n]ow, I'm not sure about seeing anybody on a bike.”

31 Although the Court permitted the defense to call Rodriguez to testify, there is no question that this new testimony alone would not meet the test for “newly discovered evidence” inasmuch as it cannot be said that the defense, exercising due diligence, “could not have ... produced” the new evidence at trial (CPL 440.10[1][g] ).

Rodriguez also admitted that he told ADA Saunders that if there is any difference between the affidavit and what he testified to back in 1994 and 1996, his testimony is the “accurate version.” In other words, the accurate version is the one where he did not see the biker outside of his window. Indeed, when ADA Saunders read excerpts of Rodriguez's trial testimony to Rodriguez, Rodriguez stated that the excerpts contained the truth, and that if they were different than the affidavit, then what he said “under oath” in his testimony was “the truth.” Of course, this is why the better practice here would have been to facilitate Rodriguez's reading of his trial testimony before having him commit to what he remembers in an affidavit.

ADA Paul's testimony also casts doubt on Rodriguez's claim that he saw the biker outside his window. Paul testified that Rodriguez never told her that he looked out of his window and saw a man on a bicycle. On the contrary, Paul testified that she recalled that Rodriguez indicated that he did not see anyone on a bike outside of this window.

Of course, Rodriguez likewise admitted that he never testified in the grand jury or at trial that he looked out the window and saw someone on a bike. This omission in his grand jury and trial testimony speaks volumes inasmuch as Rodriguez was specifically asked (at trial and at the grand jury) what he saw when he sat in his living room on the night of the shooting and he never mentioned seeing the biker. Had Rodriguez seen the biker, it would have been natural for him to say so given that his attention was specifically drawn to what he saw outside of his window during the questioning in the grand jury and at trial. At the very least, his failure to do so raises the inference that he did not see the biker, and is simply misremembering what he saw and what he may have heard from others.

Likewise, Rodriguez's claim that he told the trial prosecutor about seeing the man on the bike go in the direction of Dickens Street is cast in doubt by the absence of any document reporting it, as well as by ADA Pomodore's testimony that Rodriguez never told her that he saw the man on the bicycle after he heard the shots on the night of the shooting, or that he saw the direction in which the man went. Indeed, Rodriguez initially testified that he could not remember whether he told the trial prosecutor that he saw the man on the bike go by his window, or the direction in which bike went. It was not until he refreshed his recollection by reviewing his affidavit—an affidavit which he signed before he had a chance to read the transcript of his testimony—that he recalled that he did tell the trial prosecutor about seeing the man on the bike.

In any event, even were the Court to credit Rodriguez's testimony that he saw the man on the bike ride toward Dickens Street, that testimony (like Purser's similar testimony) does not demonstrate that the biker could not have been the same biker whom Englebert saw on Mott Street. Significantly, Rodriguez admitted that he did not observe the man for more than a second or two and did not observe how close he got to Dickens or if he reached Dickens because he only observed him ride for seven to eight feet, and “didn't look” any further. Purser likewise admitted that she did not see the biker turn on Dickens Street and could not “see anything more about it after that.” Under these circumstances, their testimony, even if credited, does not preclude the possibility that the shooter/biker made a quick two-second detour to go east on Mott Avenue such that he would later eventually pass Englebert on Mott Avenue consistent with Englebert's trial testimony. Indeed, even if the biker turned on Dickens Street, it would have been very easy for the biker to redirect his course and get back on Mott Avenue.

Accordingly, contrary to defendant's argument, Rodriguez's “corroborative” testimony did not provide an “aura of believability” (Wong at 726, 784 N.Y.S.2d 158 ) to the testimony of Purser or Englebert.

Finally, although the Court did not order a hearing on defendant's insufficient and unsubstantiated claims of actual innocence (see Decision, at 83–85), and defendant's testimony cannot be deemed to be “newly discovered evidence” (CPL 440.10[1][g] ), the Court did permit defendant to testify at the CPL 440 hearing since his testimony was proffered to “corroborate” the testimony of the recanting witnesses.³² The Court finds that defendant's testimony failed to corroborate any of the testimony of the recanting witnesses and the Court otherwise finds defendant to be incredible and unworthy of belief.

32 The Court also permitted defendant to testify regarding his ineffective assistance of counsel claims.

First, during defendant's CPL 440 hearing testimony, defendant, an interested witness as a matter of law, ultimately admitted that he lied when he swore in his affidavit in support of the CPL 440 motion that his trial attorney (Turner) told him that defendant's case was Turner's “first” murder trial. Turner of course had testified that at the time of defendant's arrest in 1994, he had served as defense counsel in many murder cases. Significantly, defendant initially evaded questions from the Court and the People regarding this lie and throughout the questioning on this issue the Court was left with the distinct impression that not only did defendant purposely lie when he signed the affidavit, but he was also untruthful with the Court when he tried to explain the genesis of the lie and the reasons therefor (“Judge, I just messed up. I just put it in there”). Further, defendant's lie weighs heavily with the Court in assessing defendant's credibility because it was a lie not about something insignificant and immaterial, but instead was a lie that sought to persuade the Court about an issue squarely before it—namely, whether trial counsel failed to provide the effective assistance of counsel. In other words, defendant, who has a tremendous motive to lie, lied precisely to influence the Court's ruling in this matter. Defendant also conceded that he lied when he told Detective Weiser that his sexual affair with Stone occurred four years prior to Stone's murder, admitting that the affair occurred only two years prior to the murder.

Second, the Court finds that defendant was otherwise often evasive with the Court and lacked forthrightness throughout his hearing testimony, occasionally displaying inappropriate demeanor during the People's cross-examination. Demeanor and evasiveness aside, defendant also often provided inconsistent answers to the questions asked of him regarding various topics. He provided inconsistent answers, for example, when he was questioned: (a) about his mental state in the jail cell on the night of his arrest (first saying that he was “hung over” from drugs, then saying he was hung over from “alcohol”); (b) about whether he was working when Stone was shot (first saying “yes,” then saying “no”); (c) about whether he heard anything about Edward Lawson (first saying “no,” then saying “yes”); (d) about whether Lawson ever said he was a confidential informant (first saying yes, then saying no); (e) about whether he signed the Miranda form before or after he made his statements in the cell (first saying “after,” then saying “before”); and, (f) about why he stopped selling guns (first saying it was because he “just didn't feel good about it,” then saying it was because he “got arrested”).

Third, defendant was impeached throughout the hearing with other prior inconsistent statements about material issues. For example, when he testified at the hearing that on the night of the shooting he was at his apartment in Manhattan and went to pick up his security job paycheck from his employer at City College, the People impeached defendant with prior statements he made to the Department of Probation to the effect that his employment as a “security guard” ended in June 1994, several months prior to the date of the homicide. Defendant also admitted that he never mentioned this security job to the Criminal Justice Agency when he was interviewed by them after his arrest, and that in fact he identified a “Temp Agency” on 14th Street as his employer. Likewise, while defendant testified at the CPL 440 hearing that he first learned of the Stone shooting from Lawson just prior to his arrest in his apartment, the People admitted into evidence a transcript of a statement by Amira Grant, defendant's fiancée at the time of the homicide, in which Grant asserted that defendant learned of the Stone homicide a week before defendant's arrest because she heard him talking about it a week earlier.

Moreover, defendant's credibility was undermined by not only his numerous criminal convictions (Attempted Criminal Sale of a Controlled Substance in the Third Degree; Resisting Arrest; Criminal Possession of a Weapon in the Fourth Degree; and felony Escape), but also by his admission that he committed numerous other crimes, charged and uncharged (a “strong-armed robbery;” possession of numerous guns and ammunition in his apartment in Manhattan during the months before the Stone homicide; the sale of drugs in the neighborhood where Stone was murdered; the sale of numerous guns on multiple occasions in New York; possession and use of crack-cocaine and marijuana on multiple occasions; theft of Stone's brother's jewelry; prostitution-related crimes involving Stone; and assault on Court Officers). Although the Court recognizes that all of these convictions and bad acts are remote in time from his 2014 testimony, and that defendant is not “incredible as a matter of law” (People v. Tankleff, 49 A.D.3d at 181, 848 N.Y.S.2d 286 ), defendant's criminal convictions and bad acts are not irrelevant in assessing defendant's credibility.

To the extent that defendant is asking the Court to consider defendant's testimony in determining his actual innocence claims, the Court finds defendant's protestations of innocence to be unbelievable and implausible for the reasons set forth above and given the evidence presented at the CPL 440 hearing and trial. In short, the Court declines to credit defendant's testimony at the CPL 440 hearing, finding his testimony to be wholly unreliable and otherwise not corroborative of the testimony offered by the recanting witnesses.

* * * * * *In sum, the Court finds that defendant failed to prove that Detective Lehner, Detective Weiser or ADA Pomodore, improperly pressured Purser or Englebert to make an identification, or that they engaged in any other misconduct in this case.³³ Likewise, the Court finds that defendant failed to prove that the detectives or ADA Pomodore failed to disclose any Rosario or Brady material related to Purser's or Englebert's alleged inability to identify defendant, there being no credible evidence that exculpatory statements by these witnesses, or an audiotape, were ever made (see People v. Aviles, 119 A.D.3d 871, 989 N.Y.S.2d 381 [2d Dept 2014] [defendant's Rosario claim is without merit because “there was no evidence in the record that th[e] material existed”]; People v. Tieman, 112 A.D.3d 975, 976, 978 N.Y.S.2d 67 [2d Dept 2013] [same] ). The motion to vacate the conviction on the grounds of newly discovered evidence is denied in all respects, as is the motion to vacate on the related grounds of alleged Brady or Rosario violations. Defendant's other claim of a Brady violation regarding ballistics and other related reports is addressed below (see Decision at 143–160 [The Brady Claim Regarding the Ballistics Match and the Rivera File ] ).

33 Defendant also alleged, without the support of a single affidavit or a sole piece of evidence, that one of the two investigating detectives made an anonymous phone call to Crime Stoppers identifying defendant as the perpetrator, and that after defendant was convicted, the detectives told one of the witnesses that she was entitled to “government money.” According to defendant, “there [was] a reasonable likelihood,” which he hoped to “further develop” at a hearing, that the money offered to the witness was the money that the detectives received after making the anonymous telephone call to Crime Stoppers. Inasmuch as the moving papers do not contain sworn allegations substantiating or tending to substantiate all of the essential facts, the motion to vacate judgment on this ground is denied (CPL 440.30[4][b] ).

The Ineffective Assistance of Counsel Claims

Defendant sets forth three general claims of ineffective assistance of counsel. Defendant first argues that his attorney's representation was deficient because trial counsel failed to request a mistrial after one of the testifying detectives blurted out at trial that the shell recovered from the crime scene matched the shell recovered from the Rivera homicide. Second, defendant contends that counsel was ineffective for failing to investigate a notebook that was recovered from the ground near the deceased at the crime scene. Third, defendant claims that his attorney failed to investigate a ballistics report that indicated that the shell casing recovered from the crime scene matched the shell casing of a firearm that was used in another homicide one mile away and one week prior.

The Sixth Amendment to the United States Constitution grants a defendant the right to receive reasonably effective assistance of counsel, gauged by prevailing professional norms (see Strickland v. Washington, 466 U.S. 668, 687–688 [1984] ; Greiner v. Wells, 417 F.3d 305, 319 [2d Cir2005] ). To establish that counsel was ineffective under the Sixth Amendment, a defendant must show, first, that “counsel's representation fell below an objective standard of reasonableness” (Strickland v. Washington, 466 U.S. at 688 ). In this regard, a defendant is required to “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment” (id. at 690 ). In turn, a “court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance” (id. ). Because assessing an attorney's performance is a difficult task, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged act might be considered sound trial strategy” (id. at 689 ).

The second component of an ineffective assistance of counsel claim under the federal standard requires a defendant to demonstrate that counsel's deficient performance actually prejudiced the defense (id. at 691–692 ). To establish the prejudice prong, the “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (id. at 694 ). “A reasonable probability is a probability sufficient to undermine confidence in the outcome” (id. at 694 ).

The state constitutional requirement of effective assistance of counsel is met under New York law when “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Benevento, 91 N.Y.2d 708, 712 [1998], quoting People v. Baldi, 54 N.Y.2d 146, 147 [1981] ). To prevail upon a claim of ineffective assistance of counsel under this standard, a defendant must overcome the strong presumption that defense counsel rendered effective assistance (see People v. Myers, 220 A.D.2d 461, 632 N.Y.S.2d 27 [2d Dept 1995] ; People v. Finch, 199 A.D.2d 278, 604 N.Y.S.2d 222 [2d Dept 1993] ). Indeed, “[w]hat constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case” (People v. Rivera, 71 N.Y.2d 705, 708 [1988] ). Unless a defendant demonstrates “the absence of strategic or other legitimate explanations” to pursue a trial strategy, defense counsel will be presumed to have rendered adequate assistance to the defendant (People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; see People v. Taylor, 1 N.Y.3d 174, 176 [2003] ; People v. Ryan, 90 N.Y.2d 822, 823 [1997] ).

Furthermore, a court will not “second-guess whether a course chosen by defendant's counsel was the right trial strategy, or even a good one, so long as defendant was afforded meaningful representation” (People v. Satterfield, 66 N.Y.2d 796, 799–800 [1985] ; see also People v. Rivera, 71 N.Y.2d at 708–09, 530 N.Y.S.2d 52, 525 N.E.2d 698 [“A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics”]; People v. Gordon, 248 A.D.2d 634, 670 N.Y.S.2d 537 [2d Dept 1998] [same] ). Moreover, “[t]he right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel” (People v. Sullivan, 153 A.D.2d 223, 227, 550 N.Y.S.2d 358 [2d Dept 1990] ) quoting People v. Aiken, 45 N.Y.2d 394, 399 [1978] ). For “[i]t is always easy with the advantage of hindsight to point out where trial counsel went awry in strategy. But trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness” (People v. Baldi, 54 N.Y.2d at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see also People v. Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [“counsel's efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective”] ).

Finally, to demonstrate ineffective assistance of counsel in New York, a defendant is required to show that he or she did not receive a fair trial because counsel's conduct was both “egregious and prejudicial” (People v. Benevento, 91 N.Y.2d at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). The Court of Appeals has expressly “recognized that a defendant's showing of prejudice [is] a significant but not indispensable element in determining whether the standard of meaningful representation was achieved” (People v. Heidgen, 22 N.Y.3d 259, 278–279 [2013] [internal quotations omitted]; see also People v. Benevento, 91 N.Y.2d at 714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [“whether defendant would have been acquitted of the charges but for counsel's error is relevant, but not dispositive under the State constitutional guarantee of effective assistance of counsel”] ). The claim of ineffectiveness focuses on the fairness of the process as a whole rather than its particular impact on the outcome of a case (id. ). Here, the Court finds that defendant's trial counsel, Barry Turner, provided defendant with the effective assistance of counsel and meaningful representation. The trial transcript and the record of the CPL 440 hearing as a whole demonstrate that counsel's strategy consisted of two equally important parts. First, trial counsel set out to undermine the People's identification evidence by casting Purser and Englebert as completely unreliable witnesses. Toward this end, trial counsel argued during his opening statement and on summation that Purser's equivocal identification testimony was weak and that Englebert's identification of a man on a bike, made when an ambulance was already at or near the crime scene, was completely irrelevant inasmuch as the timing of the observation by Englebert made it unlikely that the bicyclist was the shooter. In an effort to highlight the unreliability of the identifications, on cross-examination trial counsel challenged the witnesses' ability to perceive due to inadequate lighting, and highlighted how Englebert's testimony in the grand jury that the bicyclist was going at normal speed conflicted with his testimony at trial that the bicyclist was going fast.

The other important aspect of the defense strategy was to argue that defendant, who had a long-standing relationship with Stone, could not have been the shooter since Stone's dying declaration was that a drug dealer shot him. In this regard, counsel asked the jury to adopt the common sense argument that if defendant shot Stone, Stone would have identified defendant by name as the perpetrator given their prior relationship.

These reasonable defense strategies were part of a coordinated effort by trial counsel to demonstrate to the jury that the People failed to prove defendant's guilt beyond a reasonable doubt—an overall strategy, which, by defendant's own admissions, “all made sense to” defendant during the trial. Although defendant has in retrospect changed his mind, the Court now finds that defendant failed to demonstrate (a) that Turner's conduct fell below an objective standard of reasonableness, (b) that defendant was prejudiced by trial counsel's alleged actions or omissions, and (c) that defendant was deprived of meaningful representation. In short, the Court credits Turner's testimony in all respects and finds that counsel's performance was not deficient under either the federal or state standards.

Failure to Move for a Mistrial

Defendant's initial claim was that trial counsel, Barry Turner, was ineffective because he failed to move for a mistrial after Detective Weiser blurted out that a shell casing in the Stone homicide matched the ballistics in another homicide. Defendant's trial counsel, who had served as counsel in over fifty homicide cases, testified at the CPL 440 hearing, however, that he decided not to move for a mistrial, first and foremost, because he believed that defendant was going to be acquitted. The Court finds that this decision was an objectively reasonable strategy. Counsel's abiding belief that an acquittal was likely was reasonable given the equivocal identification testimony of Purser, the arguably unreliable identification testimony of Englebert and the exculpatory nature of the dying declaration—themes which were argued not only by Turner in his closing argument, but themes that were also argued by appellate counsel in her Appellate Division brief, invoking the Appellate Division's weight-of-the-evidence jurisdiction. The belief was also reasonable given that the “blurt out” occurred after the weaknesses in the identification testimony and the exculpatory nature of the dying declaration were exposed—that is, at a time when trial counsel had a sufficient opportunity to evaluate the import and strength of the People's case and to arrive at the reasonable belief that an acquittal was impending.

Indeed, defendant himself has also unwittingly conceded that trial counsel's belief that an acquittal was impending was reasonable because throughout defendant's voluminous submissions in the CPL 440 litigation, defendant has steadfastly described the People's case against him at trial as exceedingly “weak,” particularly given the “problematic identifications.” Accordingly, the Court finds that this credible reason alone is sufficient to establish that Turner's decision to refrain from moving for a mistrial was the product of reasonable professional judgment.The CPL 440 hearing record, however, is replete with other sound strategic reasons that informed Turner's decision. Indeed, Turner's hearing testimony demonstrates that counsel believed that a request for a mistrial would have been an ill-conceived strategy because it would have jeopardized the “very, very, very, very good discretionary ruling” which precluded the People from introducing into evidence many of defendant's prejudicial statements (including one where he told the detective that had the detective arrived at his home a week earlier the detective would have found five or six guns) and prejudicial evidence (ammunition, a BB-gun, a gun cleaning kit, a gun box, etc.). Indeed, defendant himself recognized that Turner's motion to keep out prejudicial ballistics evidence recovered from defendant's home, as well as certain prejudicial statements that defendant made, was an “important application” by his trial counsel which was granted by the trial court.

Furthermore, trial counsel's prospective thinking was strategically sound because it sought to protect an advantageous ruling that counsel reasonably believed may not be rendered at a new trial (see People v. Evans, 94 N.Y.2d 499, 504 [2000] [in limine rulings do not constitute the law of the case and are not binding upon the judge who may later preside over the re-trial] ). Ultimately, the CPL 440 hearing record demonstrates that, his expectation of an acquittal aside, Turner's decision to forego a mistrial was part of a sound strategy designed to preclude the People from using highly prejudicial evidence against defendant.

The Court finds that it was also reasonable for Turner to refrain from moving for a mistrial because he reasonably believed that the jury was not “really cognizant” of the “blurt out” given how fast it happened and how quickly he followed up with unrelated questions. Indeed, Turner's belief that the offending statement was fleeting is reflected by the trial judge's statement at side bar that Turner did not “hear” the “blurt out” as it happened, causing the trial judge to have the testimony “read back.” Because Turner's CPL 440 testimony demonstrates that the passing offending statement was not so “prejudicial” that it “deprive[d]” defendant “of a fair trial,” Turner's failure to move for a mistrial was legally and professionally sound (see CPL 280.10 [a defendant's motion for a mistrial must be granted “when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to defendant and deprives him of a fair trial”] ). Moreover, the trial transcript aptly demonstrates that Turner's decision not to “highlight” the unresponsive statement by immediately asking other questions after the “blurt out,” by declining the court's offer for a curative instruction, and by requesting that the offending comment be stricken from the record, was not only reasonable—it was remarkably prescient. Indeed, by seeking to neutralize the statement in a coordinated manner, Turner ensured that the offending comment could not be repeated by the People during their summation and that the offending comment was not part of the record when the jury later asked for a read-back of Detective Weiser's testimony. By all accounts, this can only be described as good lawyering.

Furthermore, defendant has completely failed to demonstrate that trial counsel did not have a strategic reason for not moving for a mistrial. In People v. Alexander, 109 A.D.3d 1083, 972 N.Y.S.2d 124 (4th Dept 2013), the Appellate Division rejected the defendant's ineffective assistance of counsel claim because the defendant “failed to establish the absence of a strategic reason” for his trial attorney's failure to move for a mistrial or seek a curative instruction after “an outburst by the mother of the victim” which occurred “during the testimony of the victim's sister.” Like defendant in Alexander, defendant here has failed to establish that counsel did not have a strategic reason for failing to request a mistrial. On the contrary, the robust hearing record details trial counsel's many strategic reasons.

Nor has defendant shown that he was prejudiced by trial counsel's actions or omissions. Indeed, even if Turner moved for mistrial, it is unlikely that the court would have granted the motion as there is nothing in the trial transcript to indicate that the “blurt out,” which happened so quickly that the trial judge asked to have it read back, was so prejudicial that it deprived defendant of a fair trial. In this regard, Turner cannot be deemed ineffective for failing to make a motion that was not likely to succeed (see People v. Walker, 115 A.D.3d 889, 982 N.Y.S.2d 378 [2d Dept 2014] ) quoting People v. Ennis, 41 A.D.3d 271, 839 N.Y.S.2d 720 [1st Dept 2004] [“A lawyer is not ineffective for failing to make a motion that is not likely to succeed”]; People v. Cromwell, 99 A.D.3d 1017, 952 N.Y.S.2d 302 [2d Dept 2012] [same] ).

Accordingly, the Court finds that trial counsel provided defendant with the effective assistance of counsel and meaningful representation.

To the extent that defendant contends that his ineffective assistance of counsel claim is underscored by Turner's failure to consult him on the question of whether to seek a mistrial, this argument is also without merit. Since the decision to move for a mistrial involved strategy requiring Turner to make nuanced legal decisions that could not only jeopardize the possibility of an acquittal but could also present profound evidentiary consequences at a new trial, “prevailing professional norms” did not mandate that Turner consult defendant beforehand (see United States v. Burke, 257 F.3d 1321, 1324 [11th Cir2001] [counsel's decision to request a mistrial is binding on defendant even if he expresses a “contrary wish to his lawyer”]; Howard v. Scully, 1988 U.S. Dist LEXIS 570, *12 [D Ct N.Y.1988] [writ of habeas corpus petition denied because “counsel's failure to consult with petitioner before deciding not to move for a mistrial does not rise to the level of error contemplated by Strickland ”]; People v. Hambrick, 96 A.D.3d 972, 973, 947 N.Y.S.2d 139 [2d Dept 2012] [“Strategic and tactical decisions entrusted to defense counsel include ... whether to consent to a mistrial”]; see also People v. Colon, 90 N.Y.2d 824, 825–826 [1997] [“With respect to strategic and tactical decisions concerning the conduct of trials, defendants are deemed to repose decision-making authority to their lawyers”] ). Accordingly, like counsel's refusal to move for a mistrial, counsel's failure to consult defendant did not constitute the ineffective assistance of counsel.

Failure to Investigate

The Court likewise finds that counsel's failure to investigate a narcotics notebook found at the crime scene and a ballistics report did not constitute the ineffective assistance of counsel.

The federal standard governing ineffective assistance of counsel claims “require no special amplification” when a court is tasked with assessing an attorney's duty to investigate. It is well established that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (Strickland v. Washington, 466 U.S. at 691 ). The duty to investigate, however, “does not ... compel defense counsel to investigate comprehensively every lead or possible defense or to scour the globe on the off-chance something will turn up” (Greiner v. Wells, 417 F.3d at 321 quoting Rompilla v. Beard, 545 U.S. 374 [2005] ). Ultimately, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigations” (Greiner v. Wells, supra ). And, oftentimes, an attorney's decision not to investigate rests on “defendant's own statement and actions” (id. ). For that reason, “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable” (id.; see also Sacco v. Cooksey, 214 F.3d 270, 275 [2d Cir2000] [counsel's decision to refrain from introducing certain telephone calls into evidence was reasonable given the “potential downside” of that evidence, which was open to both an innocent and damaging inference] ).

Under state law, the constitutional right of meaningful representation also requires counsel to conduct appropriate investigations (see generally People v. Bennett, 29 N.Y.2d 462 [1972] ; People v. Droz, 39 N.Y.2d 457 [1976] ). In People v. Oliveras, 21 N.Y.3d 339, 971 N.Y.S.2d 221, 993 N.E.2d 1241 (2013), the Court of Appeals held that an attorney provided the ineffective assistance of counsel when he failed to investigate certain psychiatric records that were critical to a defense premised on the proposition that defendant's mental weaknesses undermined the voluntariness of his admissions of guilt.The issue for the Court in that case was “whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitute[d] meaningful representation as a matter of law” (id. at 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ) (emphasis added).Because counsel in Oliveras advanced a defense about defendant's mental capacity without knowing the substance of defendant's psychiatric records, the Court found that counsel's decision not to investigate the documents was a “strategy” that was admittedly “born in the blind,” and that there was “simply no legitimate explanation for th[e] purported strategy” (id. citing People Benevento, 91 N.Y.2d 708 [1998] ).

Initially, the Court finds that trial counsel investigated the narcotics notebook that was found at the crime scene. Although Turner testified at the CPL 440 hearing that he could not recall whether he had made a demand to review it, Turner “assumed” that he had made such a demand. Further, ADA Pomodore's testimony established that counsel did in fact make such a request. Indeed, ADA Pomodore contacted the detective who had recovered and later vouchered the notebook precisely because a defense request had been made. Unfortunately, since the notebook was vouchered in a precinct other than the precinct where the Stone homicide had occurred, the notebook was lost and could not be found. As a result, Pomodore informed Turner that she “exhausted all efforts” to find the lost notebook to no avail. By all accounts, Turner's inquiry into the whereabouts of the notebook, the existence of which was referenced in a DD5, demonstrates that trial counsel made every effort to conduct an investigation of all evidence in the case as he prepared for trial.

Significantly, although defendant strenuously maintains that Turner was somehow ineffective for failing to conduct an investigation into the “lost” notebook, defendant says nothing at all about what exactly trial counsel was supposed to do, or what the proposed contours or goals of the investigation should have been. And, of course, the Court itself is hard pressed to imagine what Turner could have done when the prosecutor told him that, after “exhaust [ing] all efforts,” it was apparent to her that the notebook was irretrievably lost. If the purpose of the proposed investigation is to find the lost notebook, it is unclear what kind of inquiry could have been pursued given the fact that the recovering detective and others had already failed to locate the property after an exhaustive search. Under these circumstances, the Court declines to find Turner ineffective for failing to view property that was lost by law enforcement.

In any event, the CPL 440 hearing record establishes that Turner's alleged failure to investigate the notebook—that is, if there were any such failure—was objectively reasonable given the defense theory that defendant could not have been the shooter since Stone's dying declaration indicated that a drug dealer on a bike shot Stone. Trial counsel's considered decision not to pursue any reference to a notebook that “contained notations that referenced drug dealings”—which would have had the potential to “cloud up the trial with some sort of inference of drug dealing which could be construed” against defendant—not only made a further investigation of the lost notebook unnecessary, but it also demonstrates that the supposed omission was the product of sound professional judgment. Indeed, this sound professional judgment was likewise reflected in, and is consistent with, Turner's successful and strenuous opposition during trial to the People's Molineux application in which the People sought to introduce on their direct case defendant's conviction for third-degree criminal sale of a controlled substance. And trial counsel's testimony regarding his view of the notebook was completely consistent with ADA Pomodore's testimony that Turner believed the notebook was “radioactive” and that Turner was not “disturbed about the fact that it could not be found.” Accordingly, counsel's strategy to have the notebook “kept out” of the trial because it “would hurt” defendant and “would have been prejudicial” to defendant, 1was, under the circumstances of the case, objectively reasonable and “in the best interest of” defendant.³⁴

34 For this reason, defendant's belated claim that counsel should have moved for an adverse inference charge with respect to the lost narcotics notebook, is without merit inasmuch as that application would have compelled counsel to develop a record in the jury's presence about the notebook and otherwise argue that the lost notebook was “reasonably likely” to have been of “material importance” in the case (see CJI2d, Adverse Inference Charge), which, as demonstrated above, was at odds with his defense strategy.

Nor was defendant deprived of meaningful representation inasmuch as counsel's supposed failure to investigate the lost notebook was informed by his strategic desire to exclude any reference to narcotics so that the jury would not speculate that defendant was the unnamed drug dealer on the bike that Stone identified in his dying declaration. This explanation not only demonstrates that Turner's strategy was not “born in the blind,” it simultaneously undermines defendant's argument that the failure to investigate the notebook was devoid of a legitimate strategy (see People v. Cass, 18 N.Y.3d 553, 554–556 [2012] [counsel's failure to object on summation did not constitute ineffective assistance of counsel because defendant failed to show the lack of a legitimate strategy] ). Finally, because the notebook would not have “undeniably provided valuable information to the defense” (People v. Oliveras, 21 N.Y.3d at 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ), counsel's supposed failure to investigate did not compromise the meaningful representation that he received at trial, or otherwise compromised defendant's right to a fair trial.Nor has defendant demonstrated that he was prejudiced under Strickland by counsel's action or omission, since defendant failed to show that there was a reasonable probability that the result of the proceeding would have been different had trial counsel investigated the lost narcotics notebook. Given the nature of a narcotics notebook—which according to Turner usually contains information about narcotic transactions, money, weight and dates but not the names of participants—there is no way to know for certain whether a review of the notebook found at the crime scene would have changed the result of the proceeding in any way. Furthermore, although defendant contends that the narcotics notebook could have allowed Turner to “develop potentially exculpatory evidence,” and would have been “instrumental in Mr. Jones' defense,” those contentions amount, in the end, to wishful thinking. Indeed, it is equally (or more) likely that such an investigation could have harmed defendant, whose criminal record included a conviction for the sale of a controlled substance and three convictions for the sale of marijuana (cf. People v. Maldonado, 278 A.D.2d 513, 514, 718 N.Y.S.2d 387 [2d Dept 2000] [“[I]t is hard to perceive of any defense strategy which would justify counsel's failure to interview and/or call witnesses who had exculpatory information which tended to exonerate the defendant and substantiate his defense ”] [emphasis added] ). Inasmuch as the notebook was not likely to strengthen the defense theory, counsel's supposed failure to investigate the lost narcotics notebook in no way undermined confidence in the outcome of the proceeding.

For similar reasons, counsel's failure to investigate the ballistics match connecting Stone's murder to the Rivera homicide was also objectively reasonable. Again, the CPL 440 hearing record is dispositive inasmuch as it demonstrates that Turner's omission (which Turner admits)³⁵ was the product of sound professional judgment. Indeed, Turner testified that if he had received additional reports that demonstrated a ballistics match to an unsolved shooting or homicide, he would not have wanted the “jury to hear about” it because he would be concerned that the jury might infer or speculate that defendant was the perpetrator of both murders. Of course, that is precisely why trial counsel moved, in the first instance, to strike the unresponsive reference to the ballistics match during Detective Weiser's testimony. The potential prejudice arising from a jury inference or speculation that defendant was the perpetrator of both homicides is also the precise reason for one of the very claims defendant is currently raising in his motion to vacate (see Decision at 124–130 [Failure to Move for a Mistrial ] ).

35 ADA Pomodore's testimony supports a finding that Turner never asked her to follow up or pursue anything further regarding the ballistics match, and never asked for the “investigative file” related to the Rivera homicide.

Furthermore, Turner testified that it was “possible” that he believed that if he made “noise” by demanding further documents related to the ballistics match, the People, upon a more diligent “review,” may have “found something” that “would connect” defendant to the other homicide, and “it would come back to haunt” defendant. Ultimately, trial counsel's strategy was to create distance between defendant and an unsolved murder by failing to discuss the matter with the prosecutor, thereby avoiding or reducing the possibility that defendant would be inculpated for the commission of yet another homicide, which remained unsolved. The Court finds that trial counsel's strategy was objectively reasonable, particularly since trial counsel had no reason to believe that a more pro-active investigation in this regard would be helpful to defendant in his current murder case. Of course, if the ballistics match or other evidence in the Rivera file did tend to exculpate defendant in the Stone homicide, there was nothing inherently unprofessional in trial counsel's inclination to rely upon the People to promptly disclose the exculpatory information to trial counsel, as required by Brady.

Moreover, trial counsel's failure to investigate the ballistics match did not prejudice defendant. Even if trial counsel had conducted an investigation and obtained the additional documents which were disclosed to defendant after the in camera inspection (i.e., the fingerprint documents and other handwritten pages), defendant would not be able to demonstrate that there is a reasonable probability or possibility that the outcome of the proceeding would have been different. According to the People, the only “person of interest” in the Rivera homicide was (and is) defendant—who the People describe as the “prime suspect” in the Rivera homicide.Indeed, the Court's review of the Rivera file confirmed the People's contention that defendant was a person of interest in the Rivera homicide after the ballistic link was discovered. Of course, this information would never have helped trial counsel as he prepared a defense in the murder of Stone.

Secondly, although the fingerprints lifted from a public railing on the boardwalk (above where the Rivera shooting occurred) did not match defendant's fingerprints, the absence of defendant's fingerprints on a public railing near the Rivera crime scene does not exculpate defendant in any way in the Stone homicide or raise even the slightest suspicion that someone other than defendant committed the Stone murder (see Decision at 143–160 [The Brady Claim Regarding the Ballistics Match and the Rivera File ] ). Nor would the other newly disclosed documents³⁶ have done anything else to help defendant other than frustrate trial counsel's effort to exclude all reference to the Rivera shooting (id. ). Thus, because the Rivera file did not contain information that would have helped to advance the defense strategy, or that would have affected the defense strategy in any way, failure to further investigate the ballistics link would not have undermined confidence in the outcome of the proceeding.

36 The newly disclosed documents from the Rivera file include the one page handwritten document prepared by Detective Moran which sets forth the ballistic link between the two homicides and the three-page handwritten narrative document which also references the ballistic link.

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For those same reasons, defendant was not deprived of meaningful representation as he cannot demonstrate that trial counsel's procurement of the additional ballistics reports or the additional reports in the Rivera file “would have undeniably provided valuable information to assist counsel in developing a strategy during the pre-trial investigation phase of the criminal case” (People v. Oliveras, 21 N.Y.3d at 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ).

People v. Oliveras and the other cases upon which defendant relies do not require a different result. Significantly, in each of those cases the reviewing court found that trial counsel failed to investigate either a complete defense or a defense which would have effectively amounted to a frontal attack on the crux of the People's case against defendant. In Oliveras, for example, the Court of Appeals found that defendant was deprived of the effective assistance of counsel because trial counsel “failed to conduct an appropriate investigation of records critical to the defense” (Oliveras at 341, 971 N.Y.S.2d 221, 993 N.E.2d 1241 [emphasis added] )—that is, “crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pre-trial investigation phase of a criminal case” (id. at 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ). The “critical” and “crucial” records to which the Court of Appeals referred was defendant's psychiatric records; the records were properly deemed “critical” and “crucial” because trial counsel's whole defense strategy was anchored to using defendant's diminished mental capacity (i.e., his psychiatric history) to strike at the heart of the People's case against defendant, namely defendant's confession to murder. This is the important context in which the Court of Appeals held that the “utter failure to obtain these documents constituted denial of effective assistance” and “seriously compromised defendant's right to a fair trial” (id. at 348, 971 N.Y.S.2d 221, 993 N.E.2d 1241 ).

Of course, nothing of the sort could be said about trial counsel in defendant's case, where the un-obtained documents relating to the ballistics match and Rivera file were not in any way, shape or form, “critical” or “crucial” to the defense strategy of challenging the reliability of the identifications, or to any other defense, real or imagined. Indeed, the worst that could be said about trial counsel regarding this issue is that he failed to investigate that which he tried so hard to keep from the jury's ears—namely, any reference to a ballistics match involving an unsolved homicide. The second worst thing that could be said is that trial counsel had the audacity to actually rely upon the People to provide any additional further information or documents which may constitute Brady material.

Further, unlike trial counsel's failure to investigate in Oliveras, trial counsel's failure to investigate here was not inherently inconsistent with his defense strategy and theory in the case. If anything, the facts in Oliveras demonstrates why defendant's failure to investigate here did not deprive defendant of meaningful representation, the ineffective assistance of counsel, or defendant's right to a fair trial.

For similar reasons, trial counsel's failure to investigate here is completely different than the other cases upon which defendant heavily relies (see e.g., People v. Bennett, 29 N.Y.2d 462, 467 [1972] [defendant was deprived of meaningful representation where trial counsel completely failed to investigate defendant's psychiatric conditions in a case where the “only possible defense was that of insanity' when the crime was committed”]; People v. Cyrus, 48 A.D.3d 150, 848 N.Y.S.2d 67 [1st Dept 2007] [defendant was deprived of meaningful representation where trial counsel, inter alia, completely failed to investigate surveillance video which showed defendant brandishing a box-cutter in a case where the defense was that defendant committed petit larceny not robbery, and where trial counsel was responsible for eliciting the testimony which caused the video to be introduced at trial]; People v. Bussey, 6 A.D.3d 621, 622–623, 775 N.Y.S.2d 364 [2d Dept 2004] [defendant was deprived of meaningful representation where trial counsel completely failed to investigate and assert an alibi defense in a case where trial counsel was apprised that “there were as many as seven potential alibi witnesses” and failed to obtain any report from his investigator who was hired to interview two alibi witnesses]; People v. Fogle, 307 A.D.2d 299, 300–301, 762 N.Y.S.2d 104 [2d Dept 2003] [defendant was deprived of meaningful representation where trial counsel, inter alia, completely failed to investigate two important witnesses, at least one of which would have exonerated defendant]; and People v. Maldonado, 278 A.D.2d 513, 514, 718 N.Y.S.2d 387 [2d Dept 2000] [defendant was deprived of meaningful representation where trial counsel, inter alia, completely failed to investigate “witnesses who had exculpatory information which tended to exonerate the defendant and substantiate his defense”] ).

* * * * * *In sum, the Court finds that defendant received the effective assistance of counsel under the federal and state standards. The hearing transcript convincingly demonstrates that counsel's failure to move for a mistrial was objectively reasonable and did not prejudice defendant or otherwise deprive defendant of meaningful representation or a fair trial. Furthermore, the Court finds that there is no merit to defendant's claim premised on trial counsel's failure to investigate. In view of the foregoing, defendant's motion to vacate the judgment based upon claims of ineffective assistance of counsel is denied in its entirety.

The Brady Claim Regarding the Ballistics Match and the Rivera File

Finally, defendant claims that the People committed a Brady violation by failing to disclose portions of the police file pertaining to the open investigation in the unsolved Rivera homicide, the ballistic evidence of which had been linked to the Stone homicide. Although defendant concedes that he received, prior to trial, the ballistics report that linked the Stone and Rivera shootings, defense counsel's argument primarily centers around the People's failure to disclose from the Rivera police file, prior to trial: (1) reports which showed that the Rivera homicide occurred eight days prior to, and a mile away from, the Stone homicide, and (2) a fingerprint report (and associated reports) that showed that a fingerprint lifted from a public railing on the beach boardwalk (directly above where the Rivera shooting occurred) did not match defendant's fingerprints. According to defendant, these newly disclosed documents were “relevant” to defendant's guilt and “patently favorable to [the] defense.”

Because defendant fails to allege a “legal basis” for vacating the conviction, his motion to vacate is denied without a hearing (see CPL 440.30[4][a] ; People v. Baxley, 84 N.Y.2d 208, 214 [1994] ). Although the Court originally denied this claim as premature, the motion was effectively renewed after the Court conducted an in camera review of the Rivera file and requested that the People disclose to the defense various documents, including those specified above.

It is well established that a criminal defendant is entitled to discover favorable evidence that is in the People's possession and is material to guilt or punishment (People v. Fuentes, 12 N.Y.3d 259, 263 [2009] ; see Brady v. Maryland, 373 U.S. 83 [1963] ). To establish a Brady violation, the defendant must demonstrate that “(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (see People v. Garrett, 2014 N.Y. Slip Op 4876, *10–*11 (2014) ; People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 ).

Here, there is no real dispute that, save the ballistics report demonstrating the ballistic link between the Stone and Rivera homicides, the People failed to disclose, prior to trial, any portions of the Rivera police file to defendant. Although it is true that the People may not have been in actual possession of the Rivera file, the People were in “constructive possession” of the file and it was known to the investigating detectives and the trial prosecutor (People v. Garrett, supra; see also People v. Santorelli, 95 N.Y.2d 412, 421 [2000] ). Although the Court finds that the Rivera files were not disclosed to the defense, defendant's Brady motion must still fail because defendant has otherwise failed to demonstrate the favorability and materiality elements of his Brady claim (People v. Garrett, supra ).

First, the Court finds that defendant has failed to demonstrate that the newly disclosed documents in the Rivera file were favorable to defendant on the grounds that it was either exculpatory or impeaching in nature. “Evidence is favorable to the accused if it either tends to show that the accused is not guilty or if it impeaches a government witness” (id.; see also People v. Negron, 112 A.D.3d 741, 976 N.Y.S.2d 220 [2d Dept 2013] [“To establish a Brady violation the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching”] ). Moreover, a court that is tasked with deciding whether impeachment evidence is favorable should do so “without regard to the weight of evidence as a whole” (People v. Garrett, supra [internal quotations omitted] ). In Garrett, the Court of Appeals found that civil complaints against an investigating detective alleging that the detective had used “coercive tactics” against another unrelated defendant was favorable evidence because it had an “impeachment character that favored the defendant's false confession theory” (id. ).

Here, defendant argues that the non-matching fingerprint report and the revelation of the date and location of the Rivera homicide would have impeached Detective Weiser's testimony—his unresponsive “blurt out”—that a shell casing in the Stone homicide matched the ballistics in another homicide. Defendant postulates that this “impeachment” would have exposed Detective Weiser's “dishonest efforts to prejudice” defendant, inasmuch as the blurt-out, according to defense counsel, led to the “inescapable implication” that defendant had committed two homicides. Defense counsel is wrong. The newly disclosed documents from the Rivera police file lacked an “impeachment character” and were not favorable to defendant as impeachment evidence.

Significantly, the “testimony” which defendant says “could have been” effectively impeached with the newly disclosed documents was irretrievably stricken from the trial record such that it was never brought up again during the trial—not during the People's summation and not during a jury-requested read-back of Detective Weiser's testimony during jury deliberations. Inasmuch as the “testimony” regarding the ballistics match—assuming that it was even heard by the jury—was effectively removed from the record, there was nothing left for trial counsel to impeach.

Moreover, cross-examining Detective Weiser about the Rivera homicide would have been far more prejudicial and damaging to defendant than any possible benefit to be gained from the impeachment, especially given the potential prejudice which may arise from a full-throttling of that evidence—namely that the jury would unfairly infer or speculate that defendant was the shooter in both homicides. Although defendant's current attorneys have, throughout the entirety of this litigation, argued that trial counsel provided ineffective assistance of counsel, some might strongly counter, with good reason, that any proposed use of the Rivera materials and its reference to another homicide at defendant's trial for the murder of Stone, is a textbook example of deficient representation under both the federal and state constitutions (see People v. Felder, 186 A.D.2d 1050, 588 N.Y.S.2d 491 [4th Dept 1992] [defendant was deprived of constitutionally sound representation when counsel, while cross-examining the arresting officer, “elicited testimony concerning uncharged crimes”]; see also People v. Wiggins, 213 A.D.2d 965, 966, 624 N.Y.S.2d 318 [4th Dept 1995] [defendant was deprived of effective representation when counsel, among other things, “elicited prejudicial hearsay testimony that defendant was trying to force the victim into prostitution”]; cf. People v. Karst, 166 A.D.2d 920, 560 N.Y.S.2d 577 [2d Dept 1990] [“Trial counsel's failure to impeach the victim with her prior inconsistent statements was apparently based on a tactical decision that to do so would result in the jury's being made aware of uncharged crimes”] [emphasis added] ).

Indeed, it is precisely because of the above-mentioned prejudice that the newly disclosed material would not have tended to show that defendant “is not guilty” (People v. Garrett, supra ). At most, the Rivera materials would have given rise only to an additional Molineux application by trial counsel to preclude any mention of the Rivera homicide; it certainly would not have supported or “favored” (id. at *13) the defense which was actually raised by defendant. Nor would the Rivera materials have “favored” defendant's newly proposed third-party culpability defense (id. ). Significantly, although defense counsel now argues that the “Rivera materials” would have “further support[ed] the third party culpability defense offered during Mr. Jones' trial,” the trial record squarely demonstrates that there was no “third-party culpability” defense offered at defendant's trial. Indeed, not a single reference was made to a “third-party” shooter during the defense summation and the trial record is otherwise barren of any claim of third-party culpability. Of course, the underlying thrust of every misidentification defense, like the misidentification defense proffered at trial in defendant's case, is that someone other than defendant committed the crime. The assertion of that misidentification defense, however, does not concomitantly raise the more particularized third-party culpability defense. Under these circumstances, contrary to defendant's claims, the newly disclosed documents from the Rivera file could not have “support[ed] the third party culpability defense offered during Mr. Jones' trial” because no such defense was ever raised at defendant's trial. Nor do the Rivera materials “support” a new-found third-party culpability defense, or otherwise “tend[ ] to show that [defendant] is not guilty” (id. at *13).

In People v. Primo, 96 N.Y.2d 351, 728 N.Y.S.2d 735, 753 N.E.2d 164 (2001), the Court of Appeals expressly adopted the “probative versus prejudice” standard for the admissibility of a third-party culpability defense. The Court cautioned, however, that the “admission of evidence of third-party culpability may not rest on mere suspicion or surmise” (id. at 357, 728 N.Y.S.2d 735, 753 N.E.2d 164 ), and that “[e]vidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh the countervailing risks” of prejudice, confusion and delay (id. at 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 ; see also People v. Schulz, 4 N.Y.3d 521, 529 [2005] [“before [evidence of third-party culpability] can be received there must be such proof of connection with it, such a train of facts or circumstances as tend clearly to point out someone besides the prisoner as the guilty party ... Remote acts, disconnected and outside of the crime itself, cannot be separately proved to show that someone other than the defendant committed the crime”] [citations and quotations omitted] ). Applying the foregoing standard to the facts before it, the Court in Primo ruled that a ballistics report, linking the bullets found at the crime scene to a gun used by an identified third party two months later in an unrelated homicide, was admissible evidence because its probative value, when coupled with the proof that that third party was at the scene of the shooting, outweighed the dangers of delay, prejudice and confusion.

Applying the Primo standard here, it is evident that the newly disclosed non-matching fingerprint report and the report establishing a ballistic link to the unsolved Rivera murder for which defendant was the only “person of interest,” was “insufficiently probative” (Primo at 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 ) and therefore did not “tend to show that [defendant] is not guilty” (Garrett at *13), especially given the potential prejudice which may arise from that evidence, as referenced above. Moreover, unlike the evidence in Primo, the newly disclosed documents in the Rivera file fail to demonstrate that someone other than defendant killed Stone since the evidence that his fingerprints did not match the fingerprint recovered from the public railing on the boardwalk at a public beach in the summertime near where Rivera was shot, does not “tend to show” (id. ) that defendant did not shoot and kill Antoine Stone a week later at a different location about a mile away from where the Rivera shooting occurred (see Decision at 152–155).

Under these circumstances, the Court finds that defendant has failed to demonstrate that the newly disclosed documents would have been favorable to the defense.Nor has defendant established that “prejudice arose because” the withheld documents were “material” (Garrett at *5).

Where a defendant, prior to trial, “makes a specific request for a document, the materiality element is established provided there exists a reasonable possibility' that it would have changed the result of the proceedings” ( [id. ] quoting People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 ; People v. Vilardi, 76 N.Y.2d 67, 73 [1990] ; see People v. Nedrick, 166 A.D.2d 725, 727, 561 N.Y.S.2d 477 [2d Dept 1990] ). By contrast, when a defendant makes a general request for a document “evidence will be deemed material if there is a reasonable probability that had it been disclosed to the defense, the result would have been different—i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial” (People v. Bryce, 88 N.Y.2d 124, 128 [1996] ).

Defendant contends that this Court should review materiality under the “reasonable possibility” standard, selectively quoting from a portion of defendant's pretrial discovery request in support of that argument, while deleting the language which dooms his claim (i.e., the language in italics below). The defense request, read in its entirety, sought:

any written report or documentation, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial (emphasis added).

Because the fingerprint report in the Rivera file cannot fairly be characterized as a “scientific test” “relating” to the case of People v. Jones, defendant's foregoing pre-trial demand cannot be equated with a specific request for the document, sufficient to trigger application of the “reasonable possibility” standard. Indeed, defense counsel's current claim that the foregoing constitutes a sufficiently specific request is undermined by the fact that defense counsel has already strenuously argued the very opposite point—that trial counsel did not specifically demand the documents in the Rivera file (see Decision, at 136 [Failure to Investigate ] ). In addition, during the CPL 440 hearing, defendant's trial counsel, Barry Turner, candidly admitted that he never made a specific request for the investigative file in the Rivera matter and his admission was confirmed by ADA Pomodore's testimony that Turner never asked for the investigative file related to the Rivera homicide.

Given the lack of a specific, pre-trial request for the subject documents, the Court will examine the Brady materiality element under the “reasonable probability” standard. In any event, even if the Court were to apply the less demanding standard, it would find that there is no “reasonable possibility” (or probability) that the People's failure to disclose the newly disclosed fingerprint report or other documents from the Rivera file would have changed the result of the trial.

Defendant argues that “it is most likely that the same person shot both Mr. Rivera and Mr. Stone,” and that the negative fingerprint results “makes it less likely” that defendant “killed either man” (Stone or Rivera), all of which therefore “undermines confidence in the jury's conviction of [defendant] for the Stone murder.” The problem is that defendant's whole premise rests upon layers of false assumptions. First, defendant assumes that the same person committed both murders simply because of the ballistics link which indicated that shell casings in both homicides came from the same gun. This assumption “rest[s] on mere suspicion and surmise” (Primo at 357, 728 N.Y.S.2d 735, 753 N.E.2d 164 ), and ignores the fact that the homicides were committed over a week apart and that the gun was never recovered. Of course, it also ignores the reasonable possibility that the firearm was transferred between different people some time after the Rivera shooting but before the Stone shooting. Defendant himself testified at the CPL 440 hearing about the ease with which he was able to buy firearms in other states and then sell them in New York. Indeed, defendant specifically admitted during the hearing that he himself had numerous guns in his apartment but sold them a week before the police arrested him. Common sense and practical experience dictates that sometimes a murderer will get rid of his weapon after he shoots someone—an obvious and unremarkable proposition which casts in doubt the validity of defense counsel's assumption that one person killed both Rivera and Stone. Of course, if defense counsel's assumption is accepted as true and reasonable, that would not bode well for defendant since defendant could then be charged with the murder of Victor Rivera, since a jury has already determined that he murdered Antoine Stone. Since a jury found beyond a reasonable doubt that defendant murdered Stone, defendant must have also killed Rivera since, according to defendant, the “same person shot” Rivera and Stone. But we know that the law does not accept these false assumptions.

Second, defendant's postulation assumes that the fingerprint that was recovered from the “precise presumptive location of the shooter,” could only have been left by the perpetrator. This assumption too “rest[s] on mere suspicion and surmise” (Primo at 357, 728 N.Y.S.2d 735, 753 N.E.2d 164 ), and defies common sense. It ignores the fact that the fingerprint could have been left by someone other than the shooter—by one of the many other people who likely frequented the Rockaway Beach boardwalk during the summertime in early September of 1994: a bicyclist who stopped by the railing for a break, a jogger who used the railing to stretch, a beachgoer who leaned on the railing to get the sand out of her shoes, etc. It also ignores the possibility that the shooter was wearing gloves when he shot Rivera or that he did not touch the railing at all when he shot Rivera. The possibilities are limitless.

Although the non-matching fingerprint may have been favorable to defendant in a prosecution charging him with the Rivera homicide (People v. Dombrowski, 163 A.D.2d 873, 874, 558 N.Y.S.2d 401 [4th Dept 1990] [“fact that a fingerprint lifted from a beer bottle held by the robber was not that of the defendant” is a “significant exculpatory fact”] ), it would not have been favorable or material to defendant in a prosecution charging him with the Stone homicide since its utility was premised upon a series of speculative assumptions and theories (see People v. Finley, 190 A.D.2d 859, 593 N.Y.S.2d 876 [2d Dept 1993] [“[S]ince the exculpatory value of the evidence was entirely speculative it did not fall within the rule enunciated in Brady ”]; see also People v. Schlau, 117 A.D.3d 461, 985 N.Y.S.2d 79 [1st Dept 2014] [defendant's “theories” about how undisclosed information “may have affected” the credibility of witnesses “rest entirely on speculation” and therefore do not constitute Brady material] ).Because defendant's arguments are entirely conjectural, the Court finds that there is no reasonable probability or possibility that the result would have been different, had the fingerprint results and other reports been disclosed to the defense prior to trial.

Furthermore, inasmuch as trial counsel did everything within his power to keep out the prejudicial blurt-out highlighting a ballistics link to another homicide, the newly disclosed documents from the Rivera file would not have compelled trial counsel to adopt a different trial strategy which would have changed the outcome of the proceeding (see People v. McCray, 23 N.Y.3d 193, 200 [2014] [“Inadmissible evidence can be material under Brady if it will be useful to the defense, perhaps as a lead to admissible evidence or as a tool disciplining witnesses during cross examination”] [internal quotations omitted] [emphasis added]; see also People v. Garrett, 2014 N.Y. Slip Op 0876 at *26. None of the newly disclosed documents, for example, would have been useful to the defense “as a lead to” admitting evidence of third-party culpability (McCray at 200, 989 N.Y.S.2d 649 ), since, as set forth above, the import of the non-matching fingerprint evidence was way too speculative and conjectural to form the predicate for the assertion of a third-party culpability defense (see People v. Gamble, 18 N.Y.3d 386, 399 [2012] [trial court properly precluded “entirely speculative” third-party culpability claim]; People v. Schulz, 4 N.Y.3d at 529, 797 N.Y.S.2d 24, 829 N.E.2d 1192 [in prosecution for robbery of a small business restaurant, trial court properly precluded defendant from introducing evidence that a third party committed several small business robberies in close temporal and physical proximity to the crime charged]; People v. Devaughn, 84 A.D.3d 1394, 1395, 925 N.Y.S.2d 114 [2d Dept 2011] [third-party culpability testimony was properly precluded by the trial court since the defendant's “line of questioning was based only on speculation”]; People v. Cameron, 74 A.D.3d 1223, 905 N.Y.S.2d 619 [2d Dept 2010] [trial court “properly precluded the defendant from presenting evidence ... that an unidentified third party committed the shooting at issue, since such evidence ... was purely speculative in nature”]; People v. Rhodes, 49 A.D.3d 668, 853 N.Y.S.2d 375 [2d Dept 2008] [trial court properly precluded third-party culpability defense which was “based upon mere speculation and lacked any probative value”] ).

Furthermore, given the general prejudicial nature of the Rivera file, it is likely that had the jurors heard more specific evidence about the Rivera homicide, which would have been introduced on redirect or rebuttal after the defense presented the purported third-party culpability defense or impeached Detective Weiser, the jurors may have convicted defendant based upon the speculation that he had the propensity to commit murder. Of course, the proposed use of the newly discovered documents may have also opened the door to all sorts of other evidence which would have been damaging to defendant, such as the fact that defendant was the only “person of interest” in the Rivera homicide, the fact that defendant was specifically questioned about the Rivera homicide after the ballistics link was discovered, and the fact that defendant ditched a host of guns a week prior to his arrest. Although it is true that the trial court, exercising appropriate discretion, would have to make these admissibility determinations during trial, any purported use of the newly disclosed document has to be weighed against the real possibility of additional potential prejudice. In the Court's view, the only reasonable possibility or probability created by disclosure of the Rivera materials is that it would have made the People's case against defendant stronger, not weaker.

Ultimately, the weakness infecting the defense argument that the newly disclosed documents would have allowed defendant to impeach Detective Weiser or advance a vigorous third-party culpability defense “against the weakness of the overall prosecution,” is that that defense argument is wholly undercut by the defense's corollary, pre-disclosure argument. Prior to disclosure of portions of the Rivera file, defense counsel argued that any mention at all about the ballistics match to another homicide would have been so prejudicial that a mistrial would have been the only way to cure it (see Decision at 124–130 [Failure to Move for a Mistrial ] ). Now defense counsel argues, however, that the incidental mention of the ballistics match would not be so terrible after all, and that, on second thought, perhaps other information about another shooting a week earlier should have been admitted into evidence as well—all to simply prove that defendant's fingerprints did not match a fingerprint lifted from a public railing on the boardwalk of a public beach in the summertime above where Rivera was shot. The problem is that the newly disclosed documents get defendant nowhere in his prosecution for the Stone homicide and would have affirmatively damaged not only the remedy successfully obtained by trial counsel (i.e., striking the blurt-out from the record), but the viable defense actually presented, had the newly disclosed documents been used at defendant's trial as defense counsel now proposes. The defense's newfound willingness to double-down on the ballistics link to the Rivera homicide, despite its obvious (and conceded) accompanying risks and dangers regarding unfair jury speculation, turns the defense's prior arguments on its head, and otherwise defies common sense. Under these circumstances, there is no reasonable probability or possibility that the newly disclosed documents “might have led to a trial strategy that resulted in a different outcome” (Vilardi at 78, 556 N.Y.S.2d 518, 555 N.E.2d 915 ).

Although defendant urges the Court to consider his Brady claim “in conjunction with the additional claims raised in his CPL 440 motion,” the Court has already found that those claims lack merit (see Decision at 83–143). The Court finds that there is no reasonable probability or possibility that the result of the trial would have been different had the newly disclosed documents from the Rivera file been disclosed to the defense prior to trial. The Court makes this finding in light of all of the evidence in the case—including the identification of defendant, however equivocal, by Purser; the identification of defendant by Englebert; evidence that Rivera and Stone were killed with defendant's weapon of choice, a .380; evidence that defendant denied killing Stone before being told what he was being arrested for; evidence that defendant had a relationship with Stone that involved the exchange of sexual favors for money so that drugs could be purchased; evidence that defendant was familiar with Far Rockaway, having lived in the neighborhood for many years; and evidence that the detectives recovered from defendant's apartment a bicycle identical to the bicycle that the shooter used to flee the crime scene.Finally, to the extent that defendant claims that other newly disclosed portions (i.e., the handwritten narratives) of the Rivera file constituted Brady, the Court finds that those purely speculative claims are completely without merit because those reports would not have been favorable or material to defendant. Likewise, to the extent that defendant argues that the full Rivera police file should have been disclosed to the defense, that claim is without merit since the Court has found, upon its full in camera review of the Rivera file, that there is nothing in the Rivera file, save the documents already disclosed, which even arguably or remotely constitutes Brady material. On the contrary, the Court's review of the Rivera file confirmed the People's contention that defendant was a person of interest in the Rivera homicide after the ballistics link was discovered and that most of the Rivera investigation focused on identifying the deceased (see Court's interim Order, dated September 8, 2014).

In sum, the Court finds that defendant's Brady claim is without merit inasmuch as he failed to demonstrate that the newly disclosed material was both favorable and material to the defense.

For the reasons stated above, defendant's motion to vacate the judgment of conviction is denied in its entirety.

This constitutes the decision and order of the Court.