People v. Buari

Full title: THE PEOPLE OF THE STATE OF NEW YORK, v. CALVIN BUARI, Defendant

Court: Supreme Court of the State of New York, Bronx County

Date published: Apr 10, 2006

2006 N.Y. Slip Op. 50597 (N.Y. Sup. Ct. 2006)

Opinion

2111/1993.

Decided April 10, 2006.

Honorable Robert T. Johnson, District Attorney, Bronx County, New York, For the People of the State of New York.

Allen P. Karen, Esq., David S. Weisel, Esq., Assistant District Attorneys.

Richard M. Greenberg, Esq., Office of the Appellate Defender Brian W. Stull, Esq., Risa Gershon, Esq., for Calvin Buari.

DOMINIC R. MASSARO, J.

Calvin Buari was convicted by a jury on December 5, 1995, of two counts of Murder in the Second Degree (Penal Law § 125.25), and sentenced to two consecutive indeterminate terms of imprisonment of from twenty-five years to life (Cerbone, J.). 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 newly discovered evidence in that it is reasonable to conclude that one of 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 newly discovered evidence in that two of the People's witnesses signed affidavits stating they lied at trial, one of the witnesses (Dwight Robinson) admitted committing the murders, the other witness stated that Mr. Robinson committed the murders, and another individual filed an affidavit stating that Mr. Robinson confessed to him.¹ The Court granted Defendant's motion to the extent of ordering a hearing regarding the second newly discovered evidence issue. Finding the testimony of Mr. Robinson, Risa Gerson, Esq., and Detective Frank Viggiano credible, and the testimony of Kenneth Smith and Kintu Effort incredible, the motion is denied.

1 On October 19, 1999, Dwight Robinson was convicted of Murder in the Second Degree (Penal Law § 125.25 [1]), in an unrelated matter, and sentenced to an indeterminate term of imprisonment of from twenty-five years to life. See People v. Robinson, 298 AD2d 161 (1st Dept. 2002), lv. denied, 99 NY2d 563 (2002).

Chronology

Criminal History: Jerry Connor

On April 12, 1994, Jerry Connor, a prosecution witness, was given an Adjournment in Contemplation of Dismissal (CPL § 170.55) for a case in which he was originally charged with Criminal Possession of Marijuana in the Fifth Degree (Penal Law § 221.10). On March 8, 1995, Mr. Connor was issued a Desk Appearance Ticket for marijuana possession in a separate incident. However, when this trial occurred, he had yet to be arraigned on a complaint in that matter.² Prior to trial, the People informed Defendant that Mr. Connor had no criminal convictions and provided him with Mr. Connor's name, date of birth and social security number. While the People were initially unable to locate the files from Mr. Connor's two cases, they did indicate that one case was adjourned in contemplation of dismissal and the other was never arraigned. The record indicates on numerous occasions that Mr. Connor's rap sheet was disclosed.

2 On November 21, 1995, Mr. Connor was arraigned on a complaint which charged him with Criminal Possession of Marijuana in the Fifth Degree (Penal Law § 221.10). The case was later disposed of when he pled guilty to Disorderly Conduct (Penal Law § 240.20).

Facts Elicited at Trial

On the evening of September 10, 1992, Elijah and Salhaddin Harris arrived at the corner of East 213th Street and Bronxwood Avenue in a BMW. Already present were Defendant, John Parris, Kintu Effort, Jerry Connor, Clarence Seabrook, Brian Johnson, Dwight Robinson and his brother Peter Robinson. All of these individuals were known to each other, had some type of criminal background, and Messrs. Effort, Seabrook, Johnson, and Dwight Robinson all sold drugs in the vicinity, with Dwight Robinson working for Defendant.

Elijah Harris went into a nearby restaurant while Salhaddin Harris did the same or used a nearby telephone. Meanwhile, Defendant gave a nine millimeter pistol to Mr. Effort in a nearby alley. After the Harris brothers returned to their vehicle, Defendant obtained the gun from Mr. Effort, walked to the rear passenger side window of the vehicle, and fired ten to fourteen shots, killing the Harris brothers. With the exception of Mr. Parris, all of the abovementioned individuals as well as Kenya Holder, who also had a criminal record, witnessed the incident.³

3 Also present was Alrick Griffiths, who testified as an eyewitness in the Grand Jury. However, between the time of his Grand Jury testimony and the trial, Mr. Griffiths was murdered.

After Defendant was arrested, he telephoned Dwight Robinson 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 Messrs. Effort, Connor, Seabrook and Peter Robinson; all five men complied. However, after a series of shootings in the vicinity, including those in which Defendant, Mr. Parris, Peter Robinson and Mr. Seabrook's brother were all victims, the latter two of whom were killed, Dwight Robinson informed the police that he and Messrs. Connor and Seabrook witnessed Defendant murder Elijah and Salhaddin Harris, and he waited more than two years to inform them because "we didn't feel scared of Calvin, we thought he was still our friend. Once he turned against us he pushed up to this point." At trial, Messrs. Effort, Connor, Seabrook, Johnson and Holder testified to witnessing Defendant commit the murders. Furthermore, during the cross-examination of Mr. Connor, defense counsel elicited that he was once arrested for marijuana possession, 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 Mr. Connor.

The Related Juror: Thomas Jeffrey

After Defendant's conviction, but prior to sentencing, a member of his family informed his trial attorney that juror Thomas Jeffrey was related to Defendant through Mr. Jeffrey's estranged wife.⁴ Defendant requested that sentencing be adjourned because he needed to determine if a CPL § 330.30 motion to set aside the verdict should be filed. Specifically, he needed to determined if Mr. Jeffrey was aware of the relationship, dishonestly concealed it, and harbored any animus toward Defendant. The trial court denied Defendant's request and proceeded to sentencing.

4 During voir dire, Mr. Jeffrey indicated that had never seen or heard of Defendant.

On August 15, 2001, Mr. Jeffrey passed away. Defendant subsequently submitted an affidavit claiming that he did not recognized Mr. Jeffrey, but if he had, he would have struck Mr. Jeffrey from the jury due to his estrangement from Defendant's great-aunt. In addition, affidavits from his mother and her sister claimed that: their father is the brother of Mr. Jeffrey's estranged wife; Defendant lived in Mr. Jeffrey's home for a year more than twenty-five years beforehand; and, "during the trial," they noticed Mr. Jeffrey on the jury and informed trial counsel.

Defendant also submitted an affidavit from his trial counsel's investigator as well as an affirmation from his trial counsel stating that Mr. Jeffrey informed the investigator that he was unaware of any relation to Defendant. Trial counsel's affirmation also contradicted the affidavits of Defendant's mother and aunt, in that he stated that he was not informed of the relationship between Defendant and Mr. Jeffrey until after trail, specifically "one week before sentencing."

Defendant's CPL § 440.10 motion

In his first motion, Defendant claims that the Court's failure to conduct a hearing in which Mr. Jeffrey could have been examined about his familial relation and whether it was deliberately concealed was error. He further claims that because Mr. Jeffrey is now deceased, this error cannot be rectified, and, therefore, the verdict must be vacated. Defendant next claims that the District Attorney failed to disclose that Mr. Connor had a pending criminal charge, he allowed Mr. Connor to perjure himself about the matter, and relied on this known perjured testimony. Lastly, Defendant claims that there is newly discovered evidence that Mr. Robinson committed the murders for which Defendant was convicted because Mr. Robinson was convicted of a murder committed in a similar fashion at the same location as these murders less than two years afterwards and he committed all of the murders in order to protect his "drug turf."

Defendant's Supplemental CPL § 440.10 motion

Mr. Robinson stated in an affidavit dated December 30, 2003, that Defendant is innocent of the murders for which he was convicted because he, and not Defendant, was the actual perpetrator. He stated that he committed the murders due to a drug related dispute with the victims. He further stated that he lied when he testified that he witnessed Defendant commit the murders because he and Defendant had a dispute over drug distribution, and after failing to gain control by not killing Defendant and Mr. Parris when he shot them, he decided to frame Defendant for these murders and have Messrs. Connor, Seabrook and Johnson do the same.

Mr. Effort stated in an affidavit dated September 19, 2002, that neither he nor Defendant were involved in the murders for which Defendant was convicted, but rather, he was playing basketball at the time with Defendant watching. Mr. Effort further stated that he testified falsely because the People claimed that they had five witnesses who saw him hand over the gun and he was afraid that if he did not testify against Defendant, he also would be tried for the murders. Defendant claims that these affidavits constitute newly discovered evidence of his innocence.

Affidavits obtained by the People

Mr. Robinson stated in subsequent affidavits dated May 6, 2004, and June 2, 2004, that his trial testimony is true and accurate and all of the information in his previous affidavit is false and executed solely because of a series of events that caused him to fear for life. First, while in custody, Mr. Robinson received letters from Defendant demanding that he recant his trial testimony. Indeed, in one letter, Defendant stated "do what's right or game's over." However, Mr. Robinson had no intention of so doing, and, instead, gave Defendant "the run around." Then, individuals with whom Mr. Robinson was incarcerated approached him and said that they were sent by Defendant. They showed Mr. Robinson a photograph of himself when he was young and said to him, "Calvin say [you] went to the left and testified against him," and they were sent to make him recant. He stated that this encounter caused him to fear for his life because he understood the term "went to the left" to be that he was considered a "rat." As a result, he caused himself to be transferred.

When Mr. Robinson was transferred, he was sent to the same correction facility in which Defendant was housed, and, while there, received an unannounced visit from Mr. Parris, Mr. Parris's wife, and another male he knew "from the street" in which they instructed him to recant his trial testimony and to reveal the location of the other witnesses so they could be convinced to do likewise. Later, at that same facility, Mr. Robinson received an unsolicited visit from defense counsel. On his way to the visiting area, Mr. Robinson passed Defendant and his wife Pamela Williams, who was visiting, and they both stared at him. At that time, he informed defense counsel that he did not lie when he testified at trial. After this visit, Mr. Robinson was approached by an individual known as "Riz," who told Mr. Robinson that he learned that he was a "snitch" and a "rat."

Defendant subsequently gave Mr. Robinson a prepared affidavit, allegedly sworn to November 18, 2003, which stated that Mr. Robinson recanted his trial testimony and caused the other witnesses to testify falsely against Defendant. He agreed to sign the affidavit because he was afraid for his life due to the abovementioned incidents. After this affidavit was submitted to defense counsel, they visited him again. However, he refused to recant his trial testimony.

Later, Defendant told Mr. Robinson that he was not only to recant his trial testimony, but also claim that he committed the murders for which Defendant was convicted. By so doing, Defendant indicated that he would provide him with money and make sure that he was not harmed while in custody. Defendant also informed Mr. Robinson that the People would not subsequently charge him with the murders. Because he was afraid for his life, Mr. Robinson complied and met for a third time with defense counsel and signed the December 30, 2003, affidavit. Mr. Robinson later informed defense counsel of his transfer to another facility so that Defendant would believe that he was still cooperating. Lastly, Mr. Robinson stated in his latter two affidavits that:

I know Calvin Buari for about 17 years. . . . [H]e's a very dangerous man. I saw him kill two people and I know his [sic] killed many more. He's very strong in jail and on the street, he could have me and my family killed at any time. The only reason I sign those affidavits is so I could stay alive and keep my family safe. I testified truthfully at [the] Calvin Buari trial and never brought any witnesses or told any witnesses to lie.

Mr. Effort stated in an affidavit dated July 9, 2004, that his trial testimony was true and accurate and the information in his first affidavit was false and he signed it because he feared for the safety of himself and his family. Specifically, Mr. Effort stated that: since being released from prison, Defendant, his wife and Mr. Parris have continuously pressured him to recant his trial testimony; Defendant has sent him several letters critical of his testimony and referring to him as "Sammy the Bull"; various individuals in his neighborhood have called him a "rat"; and an individual known as "Slay" called him a "rat" and assaulted him. Lastly, Mr. Effort states that:

Due to the foregoing events . . . I have not been able to get on with my life ever since I testified against Calvin. . . . I have been fearful that he might get someone to harm me or my family members.

CPL § 440.10 hearing

At the commencement of the CPL § 440.10 hearing, Mr. Connor's current rap sheet indicated that he had no criminal record. In addition, Andrew Mandel, Esq. of the Legal Aid Society informed the Court that Mr. Effort, who was not subpoenaed, would not appear at the hearing.⁵ Credible testimony

5 Upon ordering a hearing in this matter, due to both Messrs. Robinson and Effort swearing to contradictory affidavits for which they could be charged with perjury, the Court appointed Susan Starr, Esq., to represent Mr. Robinson and Peter Cervini, Esq., to represent Mr. Effort. However, upon being informed that Mr. Mandel already represented Mr. Effort, he so continued.

On September 10, 1992, Mr. Robinson witnessed Defendant execute the Harris brothers at the corner of 213th Street and Bronxwood Avenue, to which he truthfully testified at Defendant's trial. Indeed, throughout his testimony at the hearing, Mr. Robinson repeatedly stated "I didn't kill the Harris brothers. The man that killed the Harris brothers is sitting right there [indicating Defendant]. . . . I didn't murder the Harris brothers. Calvin Buari did" (Tr. at 141, 156).

Mr. Robinson was subsequently convicted for an unrelated murder and sentenced to an indeterminate term of imprisonment of from twenty-five years to life. While imprisoned, Defendant began writing to Mr. Robinson in a cordial manner. However, when Mr. Robinson indicated that he did not want to communicate and gave him "the run around," Defendant began to communicate aggressively. This included a letter in which he stated "Stop playing games. Do the right thing or game's over." Mr. Robinson interpreted this letter to mean that if he did not recant, he would be killed. Mr. Robinson believed that Defendant had this ability because he had "influence amongst other inmates," due to his alleged ability to obtain narcotics.

Afterwards, several inmates who claimed to be friends of Defendant approached Mr. Robinson and told him that they were informed that he testified against Defendant. Mr. Robinson believed that this would cause him to be labeled a "rat." During the encounter, these individuals showed Mr. Robinson a youthful photograph of himself and stated that they wanted him to recant. Although he did not seek protective custody following this incident, Mr. Robinson had himself transferred by being caught with a razor blade. However, Mr. Robinson was unknowingly transferred to the same facility holding Defendant. As a result, Mr. Robinson attempted to be transferred again, but was informed that it could not occur for six months. While waiting, Mr. Robinson provided Defendant with several "false leads," so that Defendant would believe he was cooperating. Mr. Robinson subsequently received an unannounced visit from Mr. Parris, Mr. Parris's wife and another individual. During this visit, Mr. Parris asked Mr. Robinson, in sum and substance, "are you ready to do the right thing and help my man get out of jail." Mr. Robinson was also informed that paperwork was circulating indicating that he was "a rat," and other inmates who "stepped up to him," indicated that they were so doing on Defendant's behalf.

In November, 2002, defense counsel visited Defendant, learned that Mr. Robinson was also incarcerated at the same facility, and decided to attempt a visit with him the next day. In addition, they encountered Defendant's wife Pamela Williams, who informed them that she would be visiting the next day when they would be visiting Mr. Robinson. On that next day, while Ms. Williams was visiting Defendant, Mr. Robinson met with defense counsel via an unannounced visit in the same visiting room where other inmates were also present and visiting with friends and family. On his way to meeting defense counsel, Mr. Robinson passed Defendant and Ms. Williams and they both stared at him. In the course of his visit with defense counsel, Ms. Williams approached Mr. Robinson and offered him some food. He explained that this was an "aggressive move," because she brought food to someone she knew did not get along with her husband. However, defense counsel told her to leave because it was not appropriate for her to be present. Ms. Williams complied. During this meeting, Mr. Robinson was uncomfortable because he had no privacy, was surrounded by other inmates, and was "talking about [my] business." At no time during this meeting did Mr. Robinson state that he committed the murders for which Defendant was convicted or provide substantive information. Defense counsel was unaware that when this meeting occurred, the Court of Appeals had not yet denied leave on Mr. Robinson's direct appeal, and thus, his attorney, Susan Epstein, Esq. of the Legal Aid Society, was not contacted.

Following this meeting, Mr. Robinson received an affidavit from Defendant, although he believed it was from defense counsel, and was told by Defendant to sign it. The affidavit stated that Mr. Robinson lied at Defendant's trial and convinced others to do the same. The affidavit further stated that Mr. Robinson attempted to murder Defendant and Mr. Parris, and after he was unsuccessful, he decided to use the judicial system to orchestrate a murder case against him, and was provided assistance by Messrs. Effort, Connor, Seabrook and Johnson, as well as his brother Peter Robinson. The affidavit did not state that Mr. Robinson committed the murders for which Defendant was convicted. In addition, this affidavit had several defects, including being: addressed Bronx, New York, but having a zip code that does not exist in Bronx County; initially dated 2001; and subsequently dated after the date it was mailed by Mr. Robinson to defense counsel. Due to the aforementioned pressure, Mr. Robinson signed this affidavit and mailed it to defense counsel.⁶ Accompanying the affidavit was a letter that was alleged to have been written by Cynthia Wolpert, Managing Attorney of the Criminal Appeals Division of the Legal Aid Society. However, all parties agree that this letter was not written by her, based, in part, on its language, which included:

6 Throughout these proceedings, defense counsel failed to properly disclose several documents to the People, including a portion of the first letter Mr. Robinson sent to defense counsel, the first affidavit Mr. Robinson sent to defense counsel and accompanying letter which they declined to use, a portion of Mr. Robinson's letter in which he requested that defense counsel prepare a confession, a letter sent by Mr. Robinson to defense counsel subsequent to his first affidavit, certain material relating to Kevin Smith's testimony, and several pages of the transcript of a recorded telephone call.

What goes around, comes around. I wish you well on your case money in the future. Look forward to retained skilled counsel if your card is played, but don't waste time. Time is money. So you don't have a second to waste. The ball is in your court. Play it right or lose the game. Playing with it instead of being take care true to it be well.

Afterwards, defense counsel visited Mr. Robinson for a second time and asked him about this affidavit. Mr. Robinson was upset during this interview, and although he did state that he signed the affidavit, he did not state who committed the murders for which Defendant was convicted, indicated that he did not commit the murders, and wanted to know if someone informed them that he committed the murders. At the conclusion of the interview, defense counsel informed Mr. Robinson that the affidavit he submitted would not assist Defendant's case and was not going to be used.

Because the abovementioned affidavit was insufficient, Defendant further pressured Mr. Robinson to additionally state that, in addition to lying in his trial testimony, he committed the murders for which Defendant was convicted. In so doing, Defendant created a story for Mr. Robinson to convey regarding the shooting. He again complied because Defendant caused him to fear for his life by stating that it was known "all over the block" that he was a "rat." Based upon this conversation, Mr. Robinson sent a letter to defense counsel asking them to prepare an affidavit in which he would confess to committing the murders for which Defendant was convicted.

After being transferred to a facility separate from Defendant, defense counsel met for a third time with Mr. Robinson over a two day period in December, 2003. On the first day, Mr. Robinson provided defense counsel with the story that he was given by Defendant. As a result, on the second day, defense counsel gave him an affidavit containing this version of events, which he signed after correcting his Department Identification Number and being informed that he may be called as a witness at a hearing and could be tried for these murders and perjury as a result of his executing the affidavit. He was also informed that he could assert his right not to incriminate himself if he were called to testify, although such an assertion would make the affidavit moot.⁷

7 Although defense counsel did not hold themselves out to be Mr. Robinson's attorney and at all times stated that they were Defendant's attorneys, it was agreed that defense counsel was "imparting legal advice" to Mr. Robinson, who was not their client.

Mr. Robinson continued to have contact with defense counsel, in which he indicated that he was adhering to his affidavit. However, Mr. Robinson did so to make Defendant believe that he was still cooperating, and, thus, prevent Defendant from having him harmed. In addition, Mr. Robinson informed Defendant that he executed the aforementioned affidavit. Moreover, he asked Defendant's wife to contact her cousin for him because, even though this request was not serious, he wanted Defendant to believe that he was cooperating, and, thus, prevent Defendant from having him harmed.

Meanwhile, Mr. Robinson had several meeting with Detective Viggiano in which he indicated that he did not commit the murders for which Defendant was convicted, that his affidavit so indicating was false, and that his trial testimony was true. Mr. Robinson further informed the detective that he executed the affidavit due to the aforementioned pressure. However, he was afraid to convey this information in an affidavit because he did not believe that it was safe while he was still in the state correction system. As a result, Mr. Robinson was moved out of the state system. Once this was accomplished, Mr. Robinson executed his May 6, 2004, and June 2, 2004, affidavits. He stated that he was not pressured into executing these affidavits. Prior to being moved into federal custody, however, he continued to inform defense counsel that he was still adhering to the version of events he stated in his December 30, 2003, affidavit. Moreover, when defense counsel again visited him, because he did not want to assist Defendant, he "gave [defense counsel] the run around."

Mr. Robinson concluded his testimony by stating that Defendant murdered the Harris brothers, he was not involved, the statements he provided to defense counsel were false, were provided solely to protect his own life while incarcerated in the state system, and his trial testimony and two latter affidavits were true, accurate, and not the result of coercion. Mr. Robinson also stated that he considers Defendant to be dangerous because he witnessed him commit these murders and believes that he killed his brother Peter Robinson as well as several others. Mr. Robinson also believes that Defendant has a lot of influence over other inmates and through his influence, both in and out of custody, could have Mr. Robinson or his family killed.

On October 21, 2004, Detective Viggiano, accompanied by Detective John Wall, spoke to inmate Kenneth Smith. Mr. Smith informed the detective that he heard about Defendant before they ever met from friends, who told him that Defendant ran a street gang in the vicinity of the murders for which he was convicted. Mr. Smith stated that he met Defendant when they were cellmates in lockdown for four months, which he was sent to after an infraction. During that time, Defendant and Mr. Smith spent twenty-three hours a day alone together without privileges.

Detective Viggiano displayed a six-photo array containing Mr. Robinson to Mr. Smith, who was unable to identify anyone, thus verifying Mr. Robinson's testimony that they did not know each other. Nevertheless, he told Detective Viggiano that he first met Mr. Robinson when he sought legal advice, and after informing him that he did not appear to have any appealable issues, Mr. Robinson approached him again two weeks later and informed him that he committed a double murder for which another person was convicted. Mr. Smith claimed that Mr. Robinson wanted to know what would be the implications for himself and the other person if he confessed. Although Mr. Smith did not know if Mr. Robinson was pressured into making such a statement, he claimed that he informed Mr. Robinson that nothing would happen to him and the other person would be released. However, Mr. Smith further informed Detective Viggiano that, in reality, he knew that Mr. Robinson "would probably go down hard for the crimes," but he purposely gave him incorrect advice because he is a "fucking rat." He further informed Detective Viggiano that he did not know that Mr. Robinson was referring to Defendant's case until June, 2004, when he saw Defendant's CPL § 440.10 motion. Afterwards, Mr. Smith told Defendant and defense counsel about his conversation with Mr. Robinson. Regarding his conversation with defense counsel, although Mr. Smith first told Detective Viggiano that he informed defense counsel about Mr. Robinson's statement and sought legal advice regarding his own federal appeal, he later told Detective Viggiano that he realized that Defendant betrayed his confidence and planned to use him as a rebuttal witness.

After Mr. Smith provided Detective Viggiano with this version of events, due to the fact that he was unable to identify Mr. Robinson in the photo array, Detective Viggiano informed Mr. Smith that although nothing would happen if he lied to him, he could be charged with perjury if he lied under oath. In response, Mr. Smith laughed and stated that he was serving a sentence of an indeterminate term of imprisonment of from twenty-five years to life and may never be released.

Incredible testimony: Kevin Smith

Kevin Smith is not only a persistent violent felony offender, but has used multiple dates of births and aliases. In addition, despite first testifying that he had no infractions, Mr. Smith later admitted that he absconded from a temporary release program, which resulted in his release date being extended and being moved to housing for inmates with infractions.

While Defendant's cellmate for three to five months in lockdown, Defendant and Mr. Smith were alone together for twenty-three hours a day, and could not use the law library, watch television, cook or play sports. Despite this inordinate amount of time together, he claimed that he and Defendant never discussed their cases, even though Mr. Smith was a certified paralegal. Although Mr. Smith first claimed that during this period he knew nothing about Defendant other than his name, he later stated that he knew of his drug gang activity before they met.

Mr. Smith claims that he first met Mr. Robinson when he was selling food in the yard and Mr. Robinson asked if he could receive assistance with his petition for a federal writ of habeas corpus. Although Mr. Smith first testified that he read thorough Mr. Robinson's paperwork in the yard, he later stated that he was not allowed to read such paperwork in the yard; he can only read paperwork of inmates if they go to the law library and complete an Assistance Form. He said that violating this rule would result in his being transferred or losing his job in the law library. Furthermore, although Mr. Smith stated that Mr. Robinson later filled out an Assistance Form and, in the library, he reviewed his paperwork for a second time, including reviewing the appellate briefs, decision from the Appellate Division, and leave application to the Court of Appeals, he was unable to name the assistant district attorney, the judge, defense counsel, or any of the witnesses and indicated that reviewing those papers again would not help him recall this information.

Mr. Smith further testified that he had another conversation with Mr. Robinson, and although he first testified that this conversation occurred in the yard, he later changed his testimony and claimed that it occurred in the law library. During this conversation, in which Mr. Robinson allegedly told Mr. Smith that he committed murders for which a friend was convicted, after informing Mr. Robinson that he could be charged for the crime and should contact either the District Attorney or defense counsel if this was "eating at his conscience," he stated that Mr. Robinson further explained the situation to him. Although Mr. Smith testified that he did not know that he was referring to Defendant's case because Mr. Robinson did not indicate who was convicted of the murders, in recounting this conversation with Mr. Robinson, on numerous occasions, Mr. Smith indicated that Mr. Robinson referred to Defendant by name.

Despite this testimony, Mr. Smith stated that he first learned about the facts surrounding Defendant's case when he reviewed the instant motion. He testified that he then informed Defendant and defense counsel about his conversation with Mr. Robinson. This is despite the fact that Mr. Smith further testified that he is not allowed to tell anyone about an inmate's matters because he could loose his honor housing or job as a paralegal.

Although Mr. Smith acknowledged being interviewed by Detective Viggiano, his account was in direct contravention to that provided by the detective. This included his claim that the detective did not show him the photo array introduced at the hearing, but, rather, an array containing the photographs of ten juveniles. In addition, in discussing his interview with Detective Viggiano, despite claiming that he did not know the specifics of Defendant's case, without any prompting, Mr. Smith mentioned the names of Messrs. Effort, Holder and Seabrook. Moreover, although Mr. Smith first testified that he did not feel pressured when he was interviewed by Detective Viggiano, he later changed his testimony and stated that he felt threatened and bribed.

After testifying, Mr. Smith submitted an affidavit stating that Mr. Robinson "confessed to me that he committing [sic] this Double Murder in the Bronx on 213 and Bronxwood in September 1992 and he had his friends come into court and lie, so some [sic] else got convicted for the crime."

The Post-Hearing Motions

Following this portion of the hearing, Defendant contended that the People "acted improperly, unethically, and perhaps unlawfully in obtaining and utilizing attorney-client privileged communications." Defendant's claim stemmed from the People's discovery of the identity of Mr. Smith, who was never mentioned in Defendant's motion papers and who Detective Viggiano stated was not discovered through his interview of Mr. Robinson. Defendant claimed that these factors, combined with the People's unwillingness to state on the record that they did not intercept privileged communications, only leads to the conclusion that such a practice was, in fact, engaged.

In response, the People explained that they did not listen to any privileged communications, but, rather, compared the phone numbers called by Defendant with those called by other inmates and discovered that Mr. Smith, who was once Defendant's cellmate, also called Defendant's attorneys. This information is what prompted their interview of Mr. Smith.

Subsequently, Defendant filed a motion, seeking to: strike Detective Viggiano's testimony; appoint a Special Prosecutor; grant adverse inferences on Defendant's behalf due to the People's Brady ( see Brady v. Maryland, 373 U.S. 83, 87 S.Ct. 1194, 10 L.Ed.2d 215) violations; incorporate exculpatory recordings involving Defendant, Mr. Robinson and Defendant's wife into the record; and grant Defendant's CPL § 440.10 motion due to prosecutorial misconduct or holding a hearing thereon. Despite the People's explanation, Defendant claimed that his attorney-client privilege was violated because the People have provided several different accounts as to how they discovered the identity of Mr. Smith, the People's explanation is unworthy of belief because several inmates at that correctional facility are represented by Defendant's attorneys, and it is incredible to believe that the People would conduct an investigation based on such scant information. Defendant further claimed that there was a Brady ( supra) violation because the People waited until after the hearing to disclose an audio recording of a conversation amongst Defendant, his wife, and Mr. Robinson, as well as a conversation between Mr. Effort and Defendant's wife. Defendant contended that the first recording establishes that Mr. Robinson lied at the hearing and is exculpatory. Defendant further contended that the second recording establishes that the police coerced Mr. Effort into recanting his initial recantation and he asked Defendant's wife for money and visited her, which is allegedly inconsistent with the claim that she pressured him.

In support of his motion, Defendant submitted a compact disc and transcript of the abovementioned telephone calls as well as a handwritten and typed affidavit from Ms. Williams regarding her communications with Mr. Effort. In the telephone calls, the only relevant and unambiguous statements in the conversations is Mr. Robinson informing Defendant's wife that he is trying to help Defendant. In her affidavits, Ms. Williams stated that Mr. Effort: called her from the FDR Drive and visited her at work later that day; told her that the police harassed his family everyday until he turned himself in; was forced to sleep at the home of "crackheads" because his family evicted him due to constant police harassment; was played recordings of Defendant speaking to several people, including himself, while he was interviewed by the police; believes Mr. Seabrook set him up because Mr. Seabrook told him that the police visited him and were looking for Mr. Effort, and then told Mr. Seabrook that they would arrest him if he became involved in Defendant's case; was told by the police that they would not release him until he recanted his initial affidavit; asked Ms. Williams for assistance because his family turned their back on him; initially asked Ms. Williams for $200; later asked her for a $1,000 loan to be paid back in ten days; asked Ms. Williams to help him write a book and meet women; said that Defendant let Mr. Robinson "fuck him twice," and if he saw Mr. Robinson again, "I'm going to empty the clip out on his head"; and said Defendant was stupid because, if he were in Defendant's position, he would have killed Mr. Robinson.

Mr. Effort's new attorney

Edward Dudley, Esq., subsequently filed an affirmation indicating that he was now the attorney for Mr. Effort and that: Mr. Effort was not coerced into signing his initial recantation; he was coerced by the People into signing his second affidavit; Mr. Effort informed both him and the People that Mr. Robinson, and not Defendant, committed the murders at issue; Mr. Effort is willing to take a polygraph test; and Mr. Effort understands that he could be prosecuted for perjury.

Subsequent motion practice

In response, the People submitted affidavits from Detective Viggiano and Assistant District Attorney Michael Cooper further explaining that they first listened to a conversation between Defendant and Jay Parris, in which they learned that Defendant spoke to an inmate who worked in the law library. The People then discovered that Mr. Smith worked in the law library, had been Defendant's cellmate, and called Defendant's attorneys despite not being their client. The detective and the assistant also described the People's interaction with Mr. Effort. First, upon going to Mr. Effort's residence, the People were informed by his parents that although Mr. Effort testified truthfully at trial, "Defendant's people" had been attempting to convince him to recant his trial testimony. The People also listened to a conversation between Mr. Effort and Defendant, in which Defendant asked Mr. Effort to "know the script" when he spoke to defense counsel. Mr. Effort later informed the People that he signed the affidavit recanting his trial testimony because he had been called a rat, assaulted and threatened. The People further noted that Mr. Effort was represented by Andrew Mandel, Esq. of the Legal Aid Society when he executed his second affidavit and was not compelled into so doing. The People also claimed that Mr. Dudley informed them that he did not believe that a court would find Mr. Effort credible and believes his retainer is being financed by Ms. Williams.⁸ Lastly, the People stated that in their last meeting with Mr. Effort, he acknowledged receiving a cash payment from and being repeatedly called by Defendant's wife.

8 Due to the fact that Mr. Effort was previously indigent, prior to his testimony, the Court instructed Mr. Dudley to appear to determine whether, in his representation of Mr. Effort, he was being retained with funds from Ms. Williams. Although Mr. Dudley did not state directly on the record the source of his fee, it was readily apparent that his representation of Mr. Effort was, in fact, financed by Ms. Williams.

Supplemental CPL § 440.10 hearing; Incredible Testimony: Kintu Effort

Initially, it is noted that on the day of Mr. Effort's testimony, a group of individuals who did not appear on any other day were present in the Court wearing t-shirts that stated "Free Cal." In any event, Mr. Effort, a multiple felony offender who sold crack cocaine to hundreds of people every day from 1990 to 1995, testified at the hearing that his testimony at Defendant's trial was untruthful, even though it was given under oath. Specifically, he claimed that the murders did not occur at 9:25 p.m. and that he did not hand Defendant the gun and observe him shoot the victims up to fourteen times. Rather, Mr. Effort stated that the murder occurred between 6:00 and 7:00 p.m., he was playing basketball at the time, Defendant was even farther away than him from the incident, he observed Mr. Robinson with the gun while being accompanied by his brother, he witnessed Mr. Robinson commit the murders, and both he and Defendant ran from the scene after he heard the first shot. Moreover, although Mr. Effort said that he later returned to the crime scene, he denied that he was photographed by the police at that time or that such a photograph was later shown to him.

Mr. Effort testified that he never told the police what occurred because he feared for his life and was later forced to give false testimony when, after being sentenced on a separate crime, he was told by the police that he would be indicted for the murders if he did not cooperate and implicate Defendant since they had several witnesses observe him hand the gun to Defendant. He further stated that the police refused to provide him with an attorney when requested. Mr. Effort claimed that, in exchange, a letter was written to the parole board allowing him to be released.

Regarding giving false testimony, Mr. Effort claimed that his conscience began to bother him when Defendant was sentenced and has bothered him ever since. However, he acknowledges that he did not do anything about it until he met with defense counsel and signed an affidavit more than seven years later. In this affidavit, in addition to claiming that Defendant did not commit the murders, Mr. Effort acknowledged that he also made the self-serving claim that he did not give the gun to Defendant. Furthermore, although he stated that he executed his initial affidavit in order to clear his conscience, he acknowledged that it was not entirely true in that he did not indicate that Mr. Robinson committed the murders. In explaining this omission, Mr. Effort first claimed that he did not indicate that Mr. Robinson was the murderer because "he did not want to further incriminate himself" by stating that two different people committed the crime. However, after Mr. Effort acknowledged that he had already stated two different version of events, he then claimed that he did not state that Mr. Robinson was the murderer because he was scared for his freedom and believed Mr. Robinson was a dangerous person. Mr. Effort then contradicted this claim by testifying that he was not afraid of Mr. Robinson because he was incarcerated. Indeed, Mr. Effort stated that although he and Mr. Robinson are not friends now, they used to be good friends. However, he later contradicted this testimony as well when he admitted that, during that time he and Mr. Robinson were allegedly good friends, he tried to cut Mr. Robinson's throat with a broken bottle.

Mr. Effort testified that after signing the affidavit, the police harassed his family. He further claims that, because his mother was sick, harassment was not good for her health, and in order to end it, she evicted him. Mr. Effort stated that he then contacted Detective Viggiano, who gave him the number of the Legal Aid Society. Mr. Effort said that he then made arrangements to have Mr. Mandel represent him. However, despite never informing Mr. Mandel that Mr. Robinson was the murder, he complained that Mr. Mandel did not help him because his primary concern was to keep him from being incarcerated and advised him that if he did not want to be charged with perjury, he would have to sign an affidavit prepared by the People.

Mr. Effort stated that he was informed by the District Attorney that he would be charged with perjury if he did not sign their affidavit. Although he claimed that he did not initially sign it because it bothered his conscience, he said that he later signed it so that he would not be incarcerated. Mr. Effort testified that prior to signing this affidavit, he was told to provide additional reasons for signing the prior affidavit other than Defendant threatening him. Therefore, Mr. Effort claims that he created the claims that: he signed the initial affidavit because of a series of events that caused him to fear for his life; Defendant, Ms. Williams and Mr. Parris pressured him; Defendant referred to him as "Sammy the Bull"; people in his neighborhood referred to him as a "rat"; and he was in a fight with an individual known as "Slay." Mr. Effort claims that he ultimately executed this affidavit with Mr. Mandel present even though it was not true and even though he claimed that his conscience still bothered him. He also testified that he provided two different affidavits to the People, although there is no evidence of a second affidavit existing. Mr. Effort also stated that as a result of signing this affidavit, Detective Viggiano extended the time in which he had to pay a court fine in Yonkers and gave him two hundred dollars. However, Mr. Effort first testified that this money was to pay the fine, but later testified that it was to find employment.

Mr. Effort explained that Mr. Mandel ceased to be his attorney when Mr. Dudley was retained. Although Mr. Effort first testified that Mr. Dudley was found for him by Defendant's wife, he later testified that he went to visit Mr. Dudley on his own. However, Mr. Effort was unable to explain how he contacted Mr. Dudley. Indeed, he later acknowledged that Ms. Williams did, in fact, accompany him to Mr. Dudley's office. Regarding the retainer of Mr. Dudley, Mr. Effort first explained that although he is paying Mr. Dudley $2,500, at present he had only given him $1,000. Mr. Effort then claimed that the money to pay Mr. Dudley did not come from Ms. Williams, but rather, came from his employment. Then, after acknowledging that he had not worked for some time, and was unable to provide any information about his prior job, Mr. Effort changed his testimony and claimed that Ms. Williams gave him $260 to hire Mr. Dudley and he provided the remainder. Then, he changed his testimony again and stated that Ms. Williams provided him with a $1,000 loan to hire Mr. Dudley and this loan was in addition to the $260. As per his relationship with Ms. Williams, in addition to admitting that he was good friends with her and Defendant, Mr. Effort admitted that he sought Ms. Williams' assistance in obtaining employment and meeting women, and that she sent him money and gifts while he was incarcerated and when he was released.

Mr. Effort also directly contradicted the claims made by Ms. Williams in her affidavits submitted by Defendant. First, he denied the claim that he would pay her back for the loan in ten days, but rather, stated that he was to pay her back when he obtained employment. Nevertheless, Mr. Effort changed his testimony again and stated that Ms. Williams never gave him $1,000. Next, Mr. Effort denied Ms. Williams' claim that he called her while he was on the FDR Drive, but later changed this testimony as well and claimed that such a statement "could be accurate." Furthermore, Mr. Effort denied Ms. Williams' claim that he was arrested or turned himself into the police regarding this post-conviction proceeding. However, he later changed this testimony as well and, while still denying her claim that he went to a police station during this proceeding, said that he "turned himself in to Mr. Mandel," despite the fact that Mr. Mandel is not law enforcement. Mr. Effort also denied Ms. Williams' claim that he lived with "crackheads" or that he ever made such a statement to her. He also denied Ms. Williams' claims that he: regarded Mr. Robinson as his enemy; would "fire every bullet in the clip" at Mr. Robinson if he encountered him; criticized Defendant for not killing Mr. Robinson while they were incarcerated and claimed that he would have done so if he was in Defendant's position; and stated that Mr. Robinson "fucked him twice."

In addition, although Mr. Effort initially testified that the first time he told anyone that Mr. Robinson was the murderer was in February, 2005, when he met representatives of the District Attorney with Mr. Dudley acting as his attorney, he later changed his testimony and stated that he had always told Mr. Dudley that Mr. Robinson was the murderer. Moreover, although Mr. Effort initially testified that he had not discussed his testimony with anyone before testifying, he later changed this testimony as well and stated that he met with defense counsel for two hours in Mr. Dudley's office and they reviewed the questions he would be asked. Mr. Effort also acknowledged that this meting with defense counsel was at the insistence and suggestion of Ms. Williams.

Discussion

1. The CPL § 240.45 (1) (b) and (c) and Brady claims regarding Mr. Connor

In People v. Pressley, 91 NY2d 825, 827 (1997), the Court of Appeals upheld a conviction where the People concededly "failed to provide a record of judgment of conviction . . . [and] the witness in question testified untruthfully about his criminal record, . . . [because of the] overwhelming evidence of defendant's guilt, . . . there is no reasonable possibility that [it] contributed to the jury's verdict." Indeed, in People v. Vilardi, 76 NY2d 67 (1990), the Court of Appeals held that there must be "at least a reasonable possibility that defendant would not have been convicted . . . had the . . . [material] been available to him at trial . . . [or] a showing of a reasonable possibility' that the failure to disclose . . . exculpatory material contributed to the verdict," and, in so doing, noted that the state was adopting a more strict standard than the "reasonable probability" federal constitutionally mandated standard. Id. at 77-78.⁹ See also People v. Shakur, 169 Misc 2d 961, 972 (Sup.Ct. New York Cty. 1996) ("The United States Constitution is not violated every time the prosecutor fails to disclose evidence favorable to the defense.").

9 Therefore, Defendant's federal constitutional claim must fail as well. See generally Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

As explained in People v. Arthur, 175 Misc 2d 742, 759 (Sup. Ct. New York Cty. 1997), "[i]mpeachment evidence which concerns only collateral issues . . . is not exculpatory, and need not be disclosed as Brady ( supra) material. . . . Accordingly, evidence of . . . criminal convictions and other general impeachment material not qualifying as exculpatory . . . need only be disclosed to the extent required by . . . CPL § 240.44 and 240.45," which state, in pertinent part, that:

[T]he prosecutor shall . . . make available . . . (b) A record of judgment of conviction of a witness the people intend to call at trial if the record of conviction is known . . . to exist; (c) The existence of any pending criminal action against a witness the people intend to call at trial, if the pending criminal action is known . . . to exist.

In the present case, just as in People v. Battle, 249 AD2d 116, 117 (1st Dept. 1998), "[t]he existing record . . . indicates that the prosecutor complied with the applicable statutory provision in providing appropriate notice . . . regarding a prior conviction of a People's witness. . . . In any event, defendant was afforded the opportunity to examine the witness' full criminal history at trial . . . and any error was harmless in light of the overwhelming evidence of defendant's guilt." See also People v. Washington, 282 AD2d 375, 376 (1st Dept. 2001) (no failure to disclose Brady ( supra) material because "with respect to the purported criminal record of the victim, since the record on defendant's CPL § 440.10 motion establishes that the victim's computerized criminal history indicated the absence of such record, the People had neither actual nor constructive notice of such record and there was no disclosure violation."), lv. denied, 96 NY2d 925 (2001).

Here, at the time of Mr. Connor's testimony, he had received an Adjournment in Contemplation of Dismissal more than six months beforehand ( see People v. Benjamin, 147 Misc 2d 617 [Crim. Ct. New York Cty. 1990] [an adjournment in contemplation of dismissal is considered a pending criminal action only during the first six months after it was entered as the dismissal occurs at the expiration of that period. However, where the pendency of the adjournment in contemplation of dismissal adjudication was discovered while the trial was still in progress, the appropriate remedy was simply recalling the complainant, and, in any event, "there is no reasonable possibility that the prosecution's failure to disclose the complainant's ACD contributed to the verdict, since the defendant was given a meaningful opportunity to use this information to cross-examine." Id. at 620-21.]); and had also been issued a Desk Appearance Ticket, of which he had not yet been officially informed was converted into a complaint by way of an arraignment. Therefore, his testimony that he had one case that was ultimately dismissed, a reference to his receipt of an Adjournment in Contemplation of Dismissal more than six months beforehand, and had received a ticket for another case, a reference to his receipt of a Desk Appearance Ticket for which he had not yet been arraigned ( see CPL § 1.20 [criminal action commences with the arraignment upon an accusatory instrument]; People v. Settles, 46 NY2d 154), was completely truthful and not perjurious. As Mr. Connor had no other criminal record, this claim is illusory. Therefore, it is denied without a hearing pursuant to CPL § 440.30 (4) (a), (b), (c) and (d), as Defendant has not alleged a legal basis for this claim, the motion papers do not contain sworn allegations tending to substantiate all of the essential facts, it is conclusively refuted by the record, essential allegations of fact are not properly supported, and there is no reasonable possibility that they are true. In any event, even if the People failed to disclose some information regarding Mr. Connor's criminal background, in light of the overwhelming evidence of Defendant's guilt, there is no reasonable possibility that a different verdict would have resulted.

2. Post-conviction actions regarding Mr. Jeffrey

Although CPL § 270.20 (1) (c) states that a prospective juror may be challenged for cause on the ground that he or she is related within the sixth degree by consanguinity or affinity to a defendant, such a challenge is premised on CPL § 270.15 (4), which states that a challenge for cause, if based upon a ground not known to the challenging party at the time the prospective juror is sworn at trial, must be made before "[a] witness is sworn." Indeed, in People v. Harris, 57 NY2d 335, 349-50 (1982), cert. denied, sub nom., Harris v. New York, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803 (1983), the Court of Appeals held that a trial court appropriately denied a defendant's challenge for cause made in the middle of trial to a juror whom it was discovered had a relationship to the prosecutor because "[w]here a challenge for cause is made upon a ground not known . . . before the juror was sworn, the court may allow the challenge prior to the time that the first witness is sworn. . . . [A]ny other type of challenge to a sworn juror is impermissible."

Likewise, in People v. Ellis, 54 AD2d 1052 (3rd Dept. 1976), a case in which the defendant learned during trial that one of the jurors was related to the Defendant's probation officer, but did not make a motion until after the verdict had been rendered, the Third Department, in interpreting CPL § 270.15 (4), held that "based upon the policy apparent in section 270.15 of the CPL[,] . . . the failure to bring this matter to the court's attention until after the conclusion of the trial effectively waived the defendant's right." Here, Defendant's failure to raise this claim prior to the first witness being sworn effectively waives the issue pursuant to CPL § 270.15 (4), despite the fact that he was allegedly not aware of the relationship until afterwards, although he has submitted contradictory affidavits as to whether he and his trial attorney were informed about the relationship before or after the verdict. See also People v. Cosmo, 205 NY 91 (1912) ("a new trial will not be granted as a matter of right for a cause of challenge not discovered until after verdict"); People v. Mack, 35 A.D. 114, 115-17 (3rd Dept. 1898) ("a motion in arrest of judgment would not be granted upon the ground that the wife of one of the jurors was related, within the prohibited degrees, to the father of the complainant, when no challenge had been interposed").

In Harris, supra, the Court of Appeals further held that a defendant's challenge for cause was also properly denied because neither the juror nor the prosecutor were aware of the relationship. Indeed, in the Second Department's decision in Harris, supra, that court opined that "there is no showing of a relationship with the meaning of the statute [CPL § 270.20 (1) (c)] . . . unless the juror is aware of it." People v. Harris, 84 AD2d 95 (2nd Dept. 1981), aff'd, supra, cert. denied, sub nom., Harris v. New York, supra, 103 S.Ct. 1448, 75 L.Ed.2d 803 (1983). See also People v. Barnes, 129 AD2d 249, 250-51 (3rd Dept. 1987) ("The existence of this relationship . . . does not automatically render [the juror] . . . unqualified. . . . Unless the juror is aware of the relationship, the statutory presumption does not come into play."), lv. denied, 70 NY2d 873 (1987). Indeed, in Mack, supra, at 115-17, a case in which a juror could have been stricken for cause, the Third Department held that:

[T]his fact was not, at the time of the trial, known to the defendant or to his counsel [or] . . . to the district attorney. . . . It does not appear that the juror knew that he was disqualified. . . . [A] verdict should not be set aside, on the ground that one of the jurors was disqualified by consanguinity . . . unless it be shown that injustice has been done, though the fact of relationship was not known to the defeated party until after the trial.

See also People v. Irizarry, 83 NY2d 557 (1994); People v. Paulick, 206 AD2d 895, 896 (4th Dept. 1994) (Defendant bears "burden of demonstrating that the juror concealed information during voir dire and that her sitting on the jury may have affected a substantial right of defendant").

There is no evidence that either during voir dire, trial, or at anytime thereafter, Mr. Jeffrey was aware of his distant relationship to Defendant. Indeed, this lack of knowledge has only been corroborated by the fact that Defendant himself was also unaware of the relationship as well as the affidavit of trial counsel's investigator, who stated that he was informed by Mr. Jeffrey that he was unaware of the relationship. Therefore, as there is no basis for any claim that Mr. Jeffrey was aware of any relationship he had to Defendant, there is no basis for this claim.

In addition, it is well settled that "[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court." Matter of Anthony M., 63 NY2d 270, 283 (1984), citing, People v. Singleton, 41 NY2d 402, 405 (1977), and People v. Oskroba, 305 NY 113, 117 (1953), rearg. denied, 305 NY 696 (1953). Indeed, in People v. Moran, 287 AD2d 328, 329 (1st Dept. 2001), lv. denied, 97 NY2d 707 (2002), the First Department held that "[t]he court properly exercised its discretion in denying defendant's request for an adjournment of sentencing for the purpose of investigating alleged juror misconduct. . . . Defendant did not make a motion to set aside the verdict . . . or even submit an affidavit from any of the jurors interviewed by defense counsel or offer an explanation for such failure." Similarly, in People v. Sargeant, 128 AD2d 914, 915 (3rd Dept. 1987), that court held that:

[D]efendant assigns as error . . . Court's refusal to adjourn defendant's sentencing in order to permit defense counsel to make a motion concerning the exclusion of a juror who allegedly was excludable for cause. . . . [H]e learned, after the jury returned its verdict, that one of the jurors was the complainant's first cousin once removed. Although such a person is excludable from a jury for cause, . . . we find no error in . . . Court's refusal to adjourn sentencing. . . . [C]hallenges for cause are to be made at the earliest possible time . . . and defense counsel did not bring the matter to . . . Court's attention until . . . sentencing.

See also People v. Boddie, 240 AD2d 155 (1st Dept. 1997), lv. denied, 90 NY2d 902 (1997); People v. Lee, 155 AD2d 556 (2nd Dept. 1989), lv. denied, 75 NY2d 814 (1990). Similarly here, as there is no basis for any claim, the trial court cannot be said to have abused its discretion.

Moreover, the Court of Appeals in People v. Friedgood, 58 NY2d 467, 470-73 (1983), held:

[A]lthough defendant waited for over three years to bring the instant proceeding, his attorney made no effort to explain this delay. . . . As a result, defendant has failed to show . . . due diligence. . . . Furthermore, . . . only hearsay allegations contained in the affidavits of defendant counsel and a private investigator employed by him have been proffered. . . . We also note that . . . questioning . . . jurors long after they have been dismissed . . . should not be encouraged ( People v. De Lucia, 20 NY2d 275 [1967]).

See also Singleton, supra, at 406 ("defendant himself was instrumental in bringing about the unavailability of the requested witness . . . for more than a year"); People v. Miller, 242 AD2d 514 (1st Dept. 1997) ("motion failed to contain sworn allegations of facts from the jurors"), lv. denied, 91 NY2d 895 (1998); People v. Salaam, 187 AD2d 363, 364-65 (1st Dept. 1992) ("[T]rial counsel failed to submit an affidavit by . . . the juror interviewed."), aff'd, 83 NY2d 51 (1993); United States v. Moten 582 F.2d 654, 667 (2nd Cir. 1978) ("[C]ertain limits on post-trial inquiry into jury verdicts are necessary in the interest and finality lest judges become Penelopes, forever engaged in unraveling the webs they wove.' Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 [2nd Cir. 1947], cert. denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349.").

Here, although the trial court instructed Defendant to file a CPL § 440.10 motion regarding this issue, such an instruction did not entitle Defendant to act with no diligence, let alone due diligence. Indeed, Defendant waited over seven years after his conviction and two years after the death of Mr. Jeffrey to file the instant motion. For Defendant to not file the instant motion in a more timely manner, such as the six years after his conviction when Mr. Jeffrey was still alive, and then, at this late stage, to file a motion and claim that now that Mr. Jeffrey is unavailable he is entitled to a new trial, belies the very concept of due diligence. Moreover, to the extent that Defendant's appellate counsel claims that they were not in a position to timely file such a motion is of no moment because, with there being no new information since the adjournment request at Defendant's sentencing, certainly trial counsel could have filed the instant motion after sentencing. Furthermore, Defendant's claim that although there is no evidence that Mr. Jeffrey knew of his distant relationship to Defendant, such a fact may have come to light if Mr. Jeffrey was subjected to intense cross-examination, is an affront to the well settled proposition that a jury should not be able to impeach its own verdict; it would have a severely chilling and damning effect on jury service in general.

Although the conviction was reversed on other grounds and a hearing was ordered regarding a biased juror issue where, unlike here, contradictory affidavits were submitted regarding that juror's actual knowledge, in People v. Harding, 44 AD2d 800, 801 (1st Dept. 1974), the First Department noted that it was troubled by the fact that "there are grounds for suspicion that the defendant was aware of [a juror's] identity at the time the latter was chosen as a juror, and that he was not without guile when he permitted him to be chosen as a juror; and that he disingenuously concealed this recognition for the purpose of later challenging the verdict for bias." Similarly here, it appears that Defendant's family was aware of Mr. Jeffrey's relationship to Defendant during the trial and it appears that they believed that such a relationship was a benefit. It was only after Defendant's conviction that they disclosed their knowledge. To allow Defendant, either personally or through his family, to hide this knowledge for the hope of some benefit, and then disclose it afterwards in order to attempt to use it as an allegation of impropriety, would be akin to allowing defendant "eat [his] cake and hav[e] it too." People v. Tarsia, 50 NY2d 1, 9 (1980).

Lastly, because the Court is "able to make its determination on the basis of the motion papers, it did not err in doing so without a hearing." People v. Mossop 191 AD2d 715 (2nd Dept. 1993), lv. denied, 81 NY2d 1017 (1993). See also People v. Crimmins, 38 NY2d 407, 417 (1975) ("To grant such a hearing where the court is able to reach its conclusion on the papers alone would serve no end of justice but would only protract futile litigation."); Ida v. United States, 191 F.Supp.2d 426, 436-38 (S.D.NY 2002) ("Nor could a hearing shed any light on this episode. . . . [Defendant] could fare no better with a hearing than with the Court's assumption that the statement was made. And the statement is insufficient to demonstrate that the juror spoke falsely [at voir dire]."). Therefore, for the reasons set forth regarding the first claim, this claim is also denied without a hearing pursuant to CPL § 440.10 (4) (a), (b) and (d). Indeed, Defendant is unable to state who, if anyone, he would have called at such a hearing. Rather, he has merely stated that his mother and aunt would only convey the information contained in their affidavits, which is patently insufficient for relief. Therefore, short of conducting a seance, there was no basis for a hearing.

To the extent that Defendant raises a federal constitutional claim, as explained by the Supreme Court in McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548, 555, 104 S.Ct. 845, 850, 78 L.Ed.2d 663, 671 (1984), "to obtain a new trial . . . because of a juror's mistaken though honest response to a question, . . . a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. . . . [Such] motions . . . are committed to the discretion of the . . . court." In United States v. Shaoul, 41 F.3d 811, 815 (2nd Cir. 1994), the Second Circuit held that McDonough, supra, does not require a new trial if a defendant "cannot establish the juror's dishonesty," and specifically rejected the claim that "a new trial is mandated when the correct disclosure would have sustained a challenge for cause, regardless of the juror's honesty in failing to answer the question correctly . . . because it would eliminate the threshold requirement of . . . juror dishonesty." As such, Defendant's attempt at a federal constitutional claim must fail.

First Newly Discovered Evidence Claim

It is well settled "that [n]ewly-discovered evidence . . . must fulfill all of the following requirements: 1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence. . . . Furthermore, the statute contemplates diligence." People v. Salemi, 309 NY 208, 215-16, 226 (1955), cert. denied, sub nom., Salemi v. New York, 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 (1956), citing, People v. Eng Hing, 212 NY 373, 392 (1914), and, People v. Priori, 164 NY 459, 472 (1900). See also People v. Balan, 107 AD2d 811, 815 (2nd Dept. 1985) ("The power to grant an order for a new trial, based upon newly-discovered evidence, is purely statutory and . . . may be exercised . . . only when the requirements of the statute have been satisfied, the determination of which rests in the sound discretion of the court.'"), quoting, People v. Powell, 102 Misc 2d 775, 779 (Cty.Ct. Tompkins Cty. 1980), aff'd, 83 AD2d 719 (3rd Dept. 1981).

Recently, in People v. Schulz, 4 NY3d 521 (2005), the Court of Appeals affirmed the trial court's rejection of a defendant's application to introduce evidence that another individual committed the robbery for which he was being tried even though the other person: was identified by the defendant as the actual robber; committed two or three robberies in the same vicinity prior to the date of his alleged crime; committed two or three robberies in the same vicinity after the date of his alleged crime; and resembled the description of the robber given by two eyewitnesses. In so doing, the Court of Appeals held that:

The admission of evidence of third-party culpability may not rest on mere suspicion or surmise. . . . [B]efore such testimony 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 ( see Greenfield v. People, 85 NY 75, 89 [1881]). Remote acts, disconnected and outside of the crime itself, cannot . . . show that someone [else] . . . committed the crime.

Schulz, supra, at 528-29. See also People v. Primo, 96 NY2d 351, 357 (2001) ("admission of evidence of third-party culpability may not rest on mere suspicion or surmise"); People v. Paixao, 23 AD3d 677, 678 (2nd Dept. 2005) ("trial court properly excluded evidence of third-party culpability that was purely speculative in nature"). Similarly, in People v. Reyes, 255 AD2d 261, 263-64 (1st Dept. 1998), lv. denied, 92 NY2d 1053 (1999), the First Department rejected a similar claim because:

[E]vidence of [the witness's] . . . conviction is not newly discovered evidence. . . . [I]t has nothing to do with defendant's case. The illegal acts committed by [the witness] occurred three years after defendant was convicted . . . in an unrelated incident, . . and therefore have no logical bearing . . . on defendant's guilt or innocence.

See also People v. Tai, 273 AD2d 150, 151 (1st Dept. 2000) ("fact that the People's . . . witness was convicted several years later on unrelated charges had no direct bearing on defendant's case").

Here, the matter that Defendant claims constitutes newly discovered evidence is a murder committed almost two years after his conviction and the only alleged similarities are that both incidents occurred in the same vicinity, were drug related and involved the same type, but not the same, gun. This incident has no logical bearing on Defendant's case and, as such, this claim rests on mere suspicion and surmise. Moreover, Defendant has failed to allege that there is a unique modus operandi in these cases because, as described in People v. Robinson, 68 NY2d 541 (1986), quoting, People v. Molineux, 168 NY 264, 316 (1901), "the naked similarity of crimes proves nothing." See also Bohanan v. United States, 821 F.Supp. 902, 904 (S.D.NY 1993) ("modus operandi is essentially irrelevant because . . . [it] was not the basis for establishing [the defendant's] participation."), aff'd, 19 F.3d 8 (2nd Cir. 1994). Therefore, this claims is also denied pursuant to CPL § 440.30 (a), (b), and (d) because as recently explained in People v. Wise, 194 Misc 2d 481, 483-84 (Sup.Ct. New York Cty. 2002), "whether or not to hold a hearing to resolve questions of fact on a motion to vacate judgment upon the ground of newly discovered evidence is discretionary with the court. . . . To grant such a hearing where the court is able to reach its conclusion on the papers . . . would serve no end of justice but would only protract futile litigation.' Crimmins, supra, at 417."

Second Newly Discovered Evidence Claim

In determining a newly discovered evidence claim based on the recantations and confession of prosecution witnesses, in People v. Shilitano, 218 NY 161, 169-71 (1916), rearg. denied, 218 NY 702 (1916), the Court of Appeals explained that:

Bearing in mind that the witnesses to crime of violence are often of a low and degraded character and that after they have given their testimony they are sometimes influenced by bribery and other improper considerations, it is evident that the establishment of a rule which left the power to grant a new trial to a defendant to depend upon recantation by such witnesses would be subversive of the proper administration of justice. . . . [T]he fact that recantation in and of itself does not necessarily require the court to order a new trial. . . . In determining the weight to be given to the statement of these witnesses affirming the guilt of the defendant and recanting their testimony, we must endeavor to discern the motives which actuated them. If . . . it should appear that their testimony upon the trial was given without any motive to falsify and that their statements recanting their testimony were prompted by corrupt or unworthy motives, but little weight should be given to the recanting statements. There is no form of proof so unreliable as recanting testimony.

In Shilitano, supra, at 171-78, the Court of Appeals found recantation evidence, made a year after the trial, unworthy of belief and an "extraordinary production" for many reasons, including that the trial testimony was "reasonable and probable," and the recantation "puts too great a strain upon our credulity and the manner in which she tells it arouses suspicion, which, when the other circumstances are considered . . . ripens into a conviction that [the] recanting testimony is false." The Court also considered "the efforts of defendant's friends to induce the witnesses to maintain a favorable attitude towards the defendant." Shilitano, supra. Furthermore, the Court of Appeals also considered the opinion of the trial court, which found that:

During the trial . . . these witnesses were laboring under great fear lest they would incur, in giving their testimony. . . . That prior to the trial and since the trial vigorous efforts were unremittingly prosecuted by . . . [defendant's brother] to poison the wells of justice and that sinister means were used to involve these ignorant men in palpable contradiction, and in that way to assist the defendant. That rewards were held out to them and threats made to do them bodily harm if they did not make statements.

Shilitano, supra. The Court of Appeals concluded by noting that:

Another circumstance persuasive of the defendant's guilt is the effort made . . . to influence and even to intimidate those who they believe could testify against the defendant. . . . The circumstance that these friends and agents of the defendant presented . . . instead of strengthening the defendant's case seem to me to case suspicion upon it. . . . The fact that great efforts were exerted to procure the affidavits suggests th[is] inference. . . . [W]itness[es] called by the people was or has been . . . shown to have been paid money by the defendant's mother. . . . [T]hese circumstances, in addition to the direct testimony which the jury believed to be credible, establishes the guilt of the defendant. The conviction . . . is in no way shaken by the suspicious recanting statement.

Shilitano, supra. Similarly, in Salemi, supra, at 223-24, the Court of Appeals held that a recantation was insufficient to warrant granting a new trial because the individual who recanted:

[E]xplained her recantation on the ground that on the main trial she was literally scared to death.' . . . She was familiar with the fact that . . . the bartender . . . who had witnessed the shooting . . . met violent death by strangulation shortly after he testified before the Grand Jury. . . . She knew the ramifications of the narcotic trade and the peril attending a squealer.' . . . [I]t little wonder that [she] chose the easy way out. . . . Her recantation . . . was thus fully explained.

More recently, the First Department dealt with an analogous situation in People v. Cintron, 306 AD2d 151, 152 (1st Dept. 2003), lv. denied, 100 NY2d 641 (2003), in which it held that:

[T]he totality of the parties' submissions along with the trial record warrant a factual finding that the recantation is totally unreliable. . . . [T]he witness's affidavit here was made almost ten years after defendant's conviction, and after the witness had become an inmate of the same prison system in which defendant is incarcerated. Furthermore, the affidavit's account of the incident in question is incredible both on its face and in light of trial testimony. The credibility of this affidavit is further undermined by the fact that it features accusations of gross misconduct by the trial prosecutor, which accusations were highly improbable and were specifically denied. . . . The last affidavits, alleging that the authorities pressured the affiant to give false testimony against defendant, which he ultimately declined to do, was . . . entirely incredible, as the court record clearly establishes that this witness declined to testify out of fear of defendant.

Likewise, in People v. Font, 160 AD2d 299, 299-300 (1st Dept. 1990), lv. denied, 76 NY2d 734 (1990), the First Department held that:

[The witness] made his recantation while living with defendant's wife and after receiving encouragement from defendant's friends. . . . [The] record . . . is permeated with indications of intimidation. One eyewitness was shot on his way to court . . . and the shooter was another eyewitness who disavowed an earlier statement implicating defendant. Even the victim stated that he had been in touch with the defendant. . . . Moreover, the recantation was not only inconsistent with [the witness's] trial testimony, but also with the signed statement which he had provided to the police.

See also People v. Rodriguez, 193 AD2d 363, 366 (1st Dept. 1993) ("The account given by [the recanting witness] was improbable on its face and was rendered even more incredible by her vacillating and contradictory testimony."), lv. denied, 81 NY2d 1079 (1993); People v. Osorio, 86 AD2d 233 (1st Dept. 1982), app. dismissed, 57 NY2d 671 (1982).

Final Consideration

In the instant case, the recantations and confession suffer from many of the same defects as those in the above cases 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 Mr. Robinson; a significant amount of time 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 Ms. Williams; Mr. Robinson 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, Mr. Parris, and his cohorts in and out of custody, it is well settled that "[m]anipulative conduct of the kind presented in this case should not and will not be rewarded." People v. Branch, 175 Misc 2d 933, 942 (Sup. Ct. Kings. Cty. 1998).

In evaluating the testimony of the witnesses at the hearing, including their demeanor, Mr. Robinson 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, Mr. Robinson was clearly in a situation by which he had to choose between likely having his life taken or executing the two affidavits. Moreover, on all material matters, Mr. Robinson's testimony was entirely consistent with the credible testimony of Ms. Gerson.¹⁰ In addition, Detective Viggiano's testimony regarding his interview of Mr. Smith was entirely credible and it established, via the photographic array identification procedure, that Mr. Smith never, in fact, met with Mr. Robinson.

10 Although defense counsel did not overtly undertake any acts in furtherance of their client's scheme, they were at least selectively myopic regarding his actions.

The testimony of Messrs. Smith and Effort, on the other hand, was incredible for a virtual cornucopia of reasons; their demeanor betrayed testimony plainly scripted. In addition, Mr. Smith was also incredible due to: the many aliases and dates of births he has used; his claim to have had no disciplinary problems and yet be sentenced to twenty-three hour lockdown; the fact that his claim that he and Defendant never talked about their cases despite being together for several months twenty-three hours a day while he was a paralegal defies credulity; his contradictory testimony as to when he knew about Defendant's criminal history and background; and his inability to provide consistent testimony regarding his alleged meetings with Mr. Robinson, including what he was permitted to do as a paralegal, where he met Mr. Robinson when they discussed this alleged matter, and his contradictory testimony as to what occurred. In addition, to the extent that his testimony directly contradicted that of Detective Viggiano, most importantly with respect to the photo array, this Court can find no reason why to credit this obvious liar over Detective Viggiano.

Mr. Effort's testimony was not only incredible on its face, but he appeared to alter his story every time he was afforded a new attorney. In addition to the obviously intimidating appearance of the individuals wearing "Free Cal" t-shirts when he testified, it was also readily apparent that his testimony, and indeed, his last attorney, were financed by Defendant's wife. Moreover, Mr. Effort readily acknowledged that he lied several times in the past despite taking a oath to tell the truth. Based on this alone, the Court finds it hard to credit an individual who regards an oath so matter-of-fact. Furthermore, it was readily apparent that his testimony regarding the conduct of and his interaction with the People was implausible. In addition, despite claiming that his allegedly false testimony ate at his conscience, he then acknowledged that he waited over seven years before taking any action, and even then, he acknowledged that his action by way of his initial affidavit to defense counsel was not entirely truthful. Moreover, his affidavits were self-serving, in that he now denied handing the gun to Defendant. Furthermore, he gave contradictory testimony regarding whether he was scared of Mr. Robinson or whether they were friends. He also complained about the representation of Mr. Mandel, despite later acknowledging that he was not truthful in his meetings with Mr. Mandel. Moreover, Mr. Effort provided at least three versions of his relationship to Defendant's wife and Mr. Dudley. He began his cross-examination by lying when he stated that he did not discuss his testimony with anyone, but then immediately changed and stated that he reviewed it with defense counsel and Mr. Dudley. In addition, for Defendant to submit the affidavit of Ms. Williams for the Court to consider and then claim that it should not be considered because it directly contradicted the testimony of Mr. Effort is untenable, and, once again, is an attempt by Defendant to "eat [his] cake and hav[e] it too." Tarsia, surpa, at 9.

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 Mr. Smith, and the recorded telephone conversations clearly do not constitute Brady supra, material as they contain nothing of value. Indeed, despite the assertions of Defendant in his motion papers, it is well settled that "[h]yperbole is rarely an effective form of persuasion." Shakur, supra, at 975. 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 Brady supra, 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 Mr. Robinson, 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.

To the extent Defendant raises a federal constitutional claim premised upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), his reliance is sorely misplaced as, on several occasions, the Second Circuit has more precisely defined the parameters of Chambers, supra. First, in United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1318-19 (2nd Cir. 1975), cert. denied, sub nom., Sostre v. Festa, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975), the Second Circuit explained that the recanter in that case:

[H]ad a real fear for his own safety which might well outweigh his fear of a perjury conviction. . . . [T]here was absolutely no evidence or testimony in the hearing before the court below to support the bona fides of [his] decision to disavow his trial testimony. His two [later] arrests . . . [and] guilty plea . . . would suggest that he was no Paul of Tarsis. . . . [T]he" recantation" itself . . . is inherently incredible and at best Procrustean. . . . [The recanter] was contradicted by . . . two experienced police officers. . . . The further claim . . . is inconsistent with the . . . trial testimony. . . . [T]he experienced jurist [who could] personally . . . estimate the credibility of the witnesses . . . was not reasonably well satisfied that the testimony . . . [at] trial was false.

One year later, in United States v. Guillette, 547 F.2d 743, 754 (2nd Cir. 1976), cert. denied, 434 U.S. 829, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977), the Second Circuit further held that:

[T]he trustworthiness of a third party confession lies within the sound discretion of the trial court, which is aptly situated to weight the reliability of the circumstances surround the declaration. . . . [The recanting witness here] made his incriminating statement some four months after [the murder] . . . and to a police informant whom he had just met. By contrast, the declarant in Chambers ( supra), confided in several friends shortly after the murder for which he claimed responsibility. . . . [The witness's] account also lacks any significant corroborating evidence.

Then, in Grochulski v. Henderson, 637 F.2d 50, 55 (2nd Cir. 1981), cert. denied, 450 U.S. 927, 101 S.Ct. 1383, 67 L.Ed.2d 358 (1981), that court explained that, whereas in " Chambers ( supra), an opinion confined to its facts, . . . the confession bore persuasive assurances of trustworthiness,' . . . [here the] statement lacked corroboration, a factor given considerable weight by Chambers ( supra)."

In Testa v. United States, 971 F.Supp. 833 (S.D.NY 1997), aff'd, 152 F.3d 920 (2nd Cir. 1998), a virtually analogous case to the one at bar, that court found that a new trial was not warranted because, despite recanting to defense counsel and his investigator, when that witness testified at a hearing, he "fully confirmed the accuracy and truthfulness of his trial testimony and completely disavowed his" recantation. This witness further explained that he recanted his trial testimony due to contacts he had with other inmates in prison. That court credited this witness's testimony at the hearing "based on its observations of his demeanor . . . [and] it was natural that he would have blended some immaterial truthful statements with his extortionist lies, so as to give some semblance of verisimilitude." Id. at 835. Furthermore, in describing the testimony of the defendant's witness at the hearing, in holding that it was preposterous, the Court opined that:

[A]ny doubt that [he] was concocting a story was removed by his demeanor on the witness stand. . . . [T]he substance and manner of his responses illogical, shifting, glib gave clear indications of prevarication. . . . [T]he Court, in preparation for deciding this petition, once again reviewed the transcript, the memory of . . . patently dubious demeanor remained depressingly vivid.

Id. at 836. All of these same factors are present herein, and hence, unlike Chambers, supra, the recantations and confession lack any corroboration or sufficient indicia of reliability.

Lastly, regarding Defendant's claims about potential Crawford ( see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177), violations occurring during the CPL § 440.10 hearing, it is well settled that the Confrontation Clause does not apply to state post-conviction proceedings. See Oken v. Warden, 233 F.3d 86 (1st Cir. 2000), cert. denied, sub nom. Oken v. Merrill, 532 U.S. 962, 121 S.Ct. 1494, 149 L.Ed.2d 380 (2001).

ORDERED, that Defendant's motion to vacate his judgment of conviction is denied.

The foregoing constitutes the opinion and decision of the Court.