Opinion
4332-2000
10-31-2011
The People of the State of New York, v. Darnell Macon, Defendant.
For People of the State of New York Robert T. Johnson, Esq. District Attorney, Bronx Countyby: Allan H. Saperstein, Esq., of Counsel. For Defendant Daniel F. Lynch, Esq.
For People of the State of New York Robert T. Johnson, Esq. District Attorney, Bronx Countyby: Allan H. Saperstein, Esq., of Counsel.
For Defendant Daniel F. Lynch, Esq.
Dominic R. Massaro, J.
For reasons previously discussed (see, People v. Macon, 30 Misc 3d 1231A [Sup. Ct. Bronx 2011] and Order dated May 26, 2011), the Court revisits Defendant Darnell Macon's CPL §440 motion seeking to vacate the judgment of conviction that found him guilty of assault under a depraved indifference theory (see, Penal Law §120.10 [3]).
Defendant moves upon alleged "newly discovered" evidence, which, if believed, would require the conviction to be overturned. The newly discovered evidence is a friendly witness, one Armil Scott, who recently informed Defense counsel (and the District Attorney) that he, not Defendant, is the person in a crime site video introduced into evidence at Macon's 2001 trial. In response, the Court conducted a hearing upon the motion during which the parties argued whether Defendant had presented evidence not previously available which now casts doubt upon his conviction.
The facts and arguments regarding the motion are fully discussed in the Court's earlier decision (see, People v. Macon, supra.). The underlying conviction and related issue were discussed in People v. Macon, 14 AD3d 413 (1st Dept. 2005), appeal denied, 5 NY3d 791 (2005). See also, People v. Macon, 2006 NY App. Div. Lexis 14167 (1st Dept. 2006) (writ of error coram nobis denied).While initially denying Defendant's relief without hearing, the Court, upon its own motion in light of the District Attorney's belated disclosure that he had possessed Scott's affidavit since before that determination, found that Defendant showed sufficient facts to entitle a hearing upon his motion (see, CPL § 440.30[4][b]) (see, Order dated May 26, 2011). At hearing, Defendant produced Scott (Tr. pp. 9 to 97), Jalene Brown (Tr. pp. 99 to 112), and himself (Tr. pp. 113 to 168, 173 to 182) while the prosecutor called Attorneys Gary Weil (Tr. pp. 187 to 200) and Alex Duroseau (Tr. pp. 204 to 225). Various exhibits, including a video and photographs, were also presented.
As set forth in their hearing summations, the parties' positions concerning vacating the conviction are as follows (Tr. pp. 227 to 260[a]):
Defendant
Movant argues for reversal relying primarily upon Scott's testimony and upon the fact that the video does not show Defendant at the Bay Plaza theater crime scene.
While Defendant concedes Scott is an "imperfect witness," he argues that the testimony and the video prove he was unjustly convicted because he was not at the crime scene. Further, any delay in alerting the Court to the new evidence is excused by the death of appeals counsel and the disbarment of an ethically challenged successor. Likewise, Defendant proposes that Scott properly feared prosecution for the incident, justifying long delay in coming forward. Undisputedly, Scott is now a different person today with a better attitude for what is right and wrong as involves his friend. At heart, Defendant's innocence is clear as shown by the video/photographs which depict only Scott at the crime scene (Tr. pp. 227 to 235).
In summary, Defendant says he has established circumstance justifying vacating the conviction (see generally, People v. Wong, 11 AD3d 724 [2nd Dept. 2004]) including any argument he failed to timely "come forward." Regardless, Defendant asserts the legal doctrine that a free standing innocence claim does not require a showing of due diligence (see generally, People v. Bermudez, 25 Misc 3d 1226A [Sup. Ct. New York 2009]).
Prosecutor
The prosecutor dismisses Movant's arguments as dependent upon Scott's questionable veracity. In evaluating the testimony, the prosecutor rejects the idea that the statute of limitations' expiration justifies late disclosure (Tr. pp. 238). Because Scott had received immunity earlier, no reason exists impeding his disclosure earlier. Further, the prosecutor points out that Scott admits other perjured statements which detract from his credibility (Tr. pp. 243-44).
Like Scott's unbelievable testimony, the prosecutor rejects Defendant's claim that the video/photographs show someone other then Defendant at the crime scene. In this regard, the District Attorney stresses that Movant fails to show that the jury used the video to find Defendant guilty. Stated another way, because testimony comes from an admitted perjurer, it does not provide a basis for vacating a conviction and cannot qualify as newly discovered (see generally, People v. Tucker, 40 AD3d 1213 [3rd Dept. 2007]; People v. Latella, 112 AD2d 321 [2nd Dept. 1985]). Similarly, there is no value in either Jalene Brown's or Defendant's testimony which the prosecutor likewise characterizes as unbelievable.
Legal Discussion
Defendant's motion invokes CPL Article 440 which authorizes certain post judgment relief. Specifically, Defendant seeks relief under CPL §440.10(1)(g) to vacate the judgment of conviction upon grounds that new evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced at trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to Defendant; this provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.
Restated, newly-discovered evidence must (1) likely change the result if a new trial is granted; (2) be discovered since the trial; (3) be such as could have not been discovered before the trial by the exercise of due diligence; (4) be material to the issue; (5) not be cumulative to the former issue; and, (6) not be merely impeaching or contradicting the former evidence (see, People v. Wagner, 51 AD2d 186 [3rd Dept. 1976]) (see also, People v. Salemi, 309 NY 208 [1955] [elements under old CPL §420]). Defendant fails these elements.
The Court disagrees with Defendant's assertion that Scott's testimony qualifies as newly discovered evidence. Beside rejecting the proposition that the testimony would have altered the verdict, the Court disputes Defendant's claim that he acted with due diligence, under the circumstances, after Scott's came forward to Defendant's current counsel. Defendant excuses the fact that a decade has passed since the trial by stressing that Scott was reasonable in fearing criminal prosecution until the statute of limitations expired.
A court's power to vacate a conviction requires evaluation of the "new" evidence's effect had it been presented at trial (see, People v. Tankleff, 49 AD3d 160 [2nd Dept. 2002]). Accordingly, in this case, the Court finds that Scott's statements to defense counsel, years after the incident, and his subsequent testimony at the hearing do not warrant vacating the judgment. Defendant fails to show the probability that the statements or any other claimed new evidence would have resulted in a more favorable verdict (see generally, People v. Salemi, supra., cert. denied, 350 US 950 [1956]; People v. Lugo, 25 AD3d 460 [1st Dept. 2006]), lv. denied 6 NY3d 815[2006]; People v. Machicote, 23 AD3d 264 [1st Dept. 2005], lv. denied 6 NY2d 757 [2005]; People v. Paredes, 22 AD3d 297 [1st Dept. 2005]), lv. denied 6 NY3d 757 [2005]). The Court finds Scott is unreliable, especially where his narrative lacks any hint of being against penal interest and there is insufficient "probability of trustworthiness" (see, People v. Riccardi, 73 Misc 2d 19 [Sup Ct. Kings 1972] ["witness' statement made after ample time to reflect upon a course of action should be treated with suspicion"]). Defendant's delay in producing the new evidence, while not controlling, is also a consideration in evaluating the seriousness and validity of his claim and undermines its legitimacy (see generally, People v. Quinones, 26 Misc 3d 1206A [Sup Ct. Kings 2009]; People v. Kirkland, 1 Misc 3d 904A [Sup Ct. Kings 2003]). Likewise, the validity of Defendant's claim of actual innocence is significantly undermined by the nearly decade delay between the date of conviction and the filing of the current motion (see generally, People v. Weir, 2009 NY Slip Op 31375U [Sup Ct. Kings 2009]).
In his testimony, Scott unconvincingly explains his unavailability over a number of years by giving the impression he feared prosecution. Likewise, Defendant tries to explain his due diligence in securing Scott's cooperation by stressing various roadblocks to his ability to seek such help. These include the disciplinary proceeding against his appellate attorney (see generally, Matter of Dilmahani, 78 AD3d 39 [1st Dept. 2010]) and his inability to discuss the matter privately with Scott while in prison (Tr. p. 126 to 129; 165 to 182).
The Court agrees with the prosecutor when he holds forth that Scott's testimony and the other allegations are not of a character that could create a probability that the verdict would have changed. The prosecutor argues that his case at trial did not depend upon showing that Defendant was depicted in a surveillance tape and Defendant failed to refute that claim. Next, the credibility of Scott's testimony must be questioned because he is Defendant's friend, lived in the same community, attended the same school and traveled with him as a fellow gang member. Further, Scott's testimony is not against his penal interest because he enjoyed immunity. Defendant's delay in producing the new evidence is yet another factor to be considered in evaluating the seriousness and validity of his claim and undermines its legitimacy (see, People v. Kirkland, supra.). Any investigation of claims raised by new testimony is subject to thwarting by the passage of time (see generally, People v. Medina, 79 AD3d 909 [2nd Dept. 2010]). Finally, the Court finds the testimony of Defendant and his witnesses to be incredible on its face (see generally, People v. Mears, 55 AD3d 439 [1st Dept. 2008]). Likewise, inspection of the video/photographs in evidence fails to convince the Court in Defendant's favor.
Where, based upon the foregoing, it is
ORDERED that Defendant Darnell Macon's motion, pursuant to CPL §440.10(1)(g), seeking to vacate the judgment of conviction upon grounds that new evidence has been discovered since the entry of a judgment, is DENIED.
The foregoing constitutes the Decision and Order of the Court.
Dated: Bronx, New York
October 31, 2011
_____________________________
DOMINIC R. MASSARO, JSC
In deciding the instant motion, the Court read (1)Defendant's Motion to Vacate Judgment pursuant to CPL §440.10(1)(g) with exhibits [October 2011] and resubmitted motion [April 13, 2011]; (2) affirmation in opposition of Allen Saperstein, Esq,, with exhibits (January 31, 2011), (3) Reply Affirmation in Support of Motion to Vacate Judgment (February 2011); (4) affirmation in opposition of Allen Saperstein, Esq,, with exhibits (May 2011); (5) People's Post Hearing Memorandum of Law; (6) Post Haring Memorandum of Law on Behalf of Defendant; (7) transcripts (3 volumes).