The Facts of the Case:
A New York Sex Crimes Lawyer said that on 10 September 1992 evening, two people arrived at the corner of East 213th Street and Bronxwood Avenue in a BMW. Already present were Defendant and seven (7) other people, two of which were brothers. All of these individuals were known to each other, had some type of criminal background. Four (4) of them all sold drugs in the vicinity, with one working for Defendant.
Meanwhile, two other brothers, one went into a nearby restaurant while the other did the same or used a nearby telephone.
Back to defendant, he gave a nine millimeter pistol to one of his companions in a nearby alley. After his companions, the brothers, returned to their vehicle, defendant obtained the gun from one of his companions, walked to the rear passenger side window of a vehicle, and fired ten to fourteen shots, killing the two other brothers; a gun crime. With the exception of one of his companions, all of his companion as well as one other witness, who also had a criminal record, witnessed the incident.
After defendant was arrested, he telephoned one of his companions and told him to tell his trial attorney that, when the shooting occurred, he and the other witnesses observed a brown car circle the block while defendant was merely sitting on a nearby crate. This request was also made to the others. All five men complied. However, a New York Sex Crimes Lawyer said that after a series of shootings in the vicinity, including those in which Defendant, two (2) of his companions and one of his companion’s brother were all victims, the latter two of whom were killed, one of them informed the police that he and two others witnessed defendant murder the two other brothers, and he waited more than two years to inform them because he didn’t feel scared of defendant, he thought he was still his friend. Once defendant turned against him he pushed up to this point.
At trial, six (6) of defendant’s companions testified to witnessing him commit the murders.
Furthermore, during the cross-examination of one of the witnesses, defense counsel elicited that he was once arrested for marijuana possession, a drug crime, which was later dismissed, and once received a ticket for drug possession. When the People turned over further case file information, despite having the opportunity to do so, defendant did not recall the aforesaid witness.
On 5 December 1995, defendant was convicted by a jury of two counts of Murder in the Second Degree and sentenced to two consecutive indeterminate terms of imprisonment of from twenty-five years to life.
Defendant now moves, pursuant to Criminal Procedure Law Article 440.10, to vacate his conviction on the grounds that: he was denied a fair and impartial jury because a juror was his grandfather’s sister’s estranged husband; the People failed to disclose that a witnesses had a pending criminal case, allowed that witness to perjure himself, and relied on that testimony; there is a newly discovered evidence in that it is reasonable to conclude that one of the A Nassau County Sex Crimes Lawyer said that the people’s witnesses committed the murders for which defendant was convicted because he committed a murder in a similar fashion at the same location less than two years later, attempted to murder defendant, and had a motive to commit the murders and frame defendant; and there is a newly discovered evidence in that two of the People’s witnesses signed affidavits stating they lied at trial, one of the witnesses admitted committing the murders, the other witness stated that one of the witnesses committed the murders, and another individual filed an affidavit stating that one of the witnesses confessed to him.
The main issue here is whether or not the testimonies presented were sufficient to prove beyond reasonable doubt that defendant did commit the crime charged.
The Ruling of the Court:
In the instant case, the recantations and confession suffer from many defects in that: they are inherently unreliable; they were signed under suspicious circumstances; they were prompted by corrupt and unworthy motives; those recanting were fearful for their lives due to constant intimidation; defendant appeared to have considerable influence over those surrounding the witnesses and the witnesses clearly had a real and founded fear of defendant; the witnesses were surely aware of the murder of the eyewitness who testified in the Grand Jury; one of the witnesses had to deal with the peril attending one labeled a “rat”; the trial testimony was reasonable and probable; the recantations strain credulity; defendant and his friends and family went to great lengths to induce the recantations; the Court was impressed with the demeanor of one of the witnesses; a significant amount of time has lapsed between the witnesses’ trial testimony and their recantations; the alleged misconduct by the People was highly implausible; the recantations were inconsistent with the other trial testimony; there appears to be bribery afoot via the actions of one other witness; one witness had to be moved to federal custody due to the danger to his life as a result of his trial testimony; there was no credible reason given for allegedly providing false testimony at trial; and there was no reasonable possibility that the confession and recantations might be true. Indeed, regarding the actions of defendant, his wife, and his cohorts in and out of custody, it is well settled that manipulative conduct of the kind presented in the case should not and will not be rewarded.
In evaluating the testimony of the witnesses at the hearing, including their demeanor, one witness (herein referred as the credible witness) was clearly credible not only in his reaffirming his trial testimony, but also his detailed explanation as to why he signed affidavits claiming that he lied at trial and committed the murders for which defendant was convicted. It was readily apparent that these affidavits were both signed not because they were true, but because of the catalogue of threats and harassment he underwent ever since being incarcerated in the state correction system. Indeed, such witness was clearly in a situation by which he had to choose between likely having his life taken and executing the two affidavits. Moreover, on all material matters, the aforesaid witness’ testimony was entirely consistent with the credible testimony of another person. In addition, a Queens Sex Crimes Lawyer said that one detective’s testimony regarding his interview was entirely credible and it established, via the photographic array identification procedure, that one of the witnesses (the alleged inmate) never, in fact, met with the witness.
The court finds the other testimonies incredible.
Furthermore, defendant’s subsequent motion regarding sanctions against the People is baseless as the Court completely credits the People’s explanation as to their discovery of the alleged inmate of the credible witness, and the recorded telephone conversations clearly do not constitute as material as they contain nothing of value. Indeed, despite the assertions of defendant in his motion papers, it is well settled that hyperbole is rarely an effective form of persuasion.
Also, in light of defendant’s failure to disclose numerous relevant and important documents prior to the hearing, which both the Court and the People acknowledge were likely oversights, for him to then claim that the People’s failure to disclose these meaningless recordings were some type of purposeful, violation is akin to the pot calling the kettle black. Indeed, even in submitting the motion wherein this claim was made, Defendant omitted several pages of these allegedly exculpatory recordings. It is also noted that although the Court finds nothing improper with defense counsel’s contacting the credible witness, as leave on his direct appeal had not yet been denied when they first met, the better practice would have been to first contact his attorney, especially in light of the fact that the first newly discovered evidence claim directly implicates the conviction he was appealing.
Accordingly, the defendant’s motion to vacate his judgment of conviction is denied.
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