Opinion
No. 3356–2006.
03-25-2015
The PEOPLE of the State of New York v. Charles STEVENSON, Defendant.
Robert T. Johnson, Esq., District Attorney, Bronx County by Marc I. Eida, Esq., Assistant District Attorney, for People of the State of New York. Charles Stevenson, Rome, pro se.
Robert T. Johnson, Esq., District Attorney, Bronx County by Marc I. Eida, Esq., Assistant District Attorney, for People of the State of New York.
Charles Stevenson, Rome, pro se.
Opinion
DOMINIC R. MASSARO, J.
Defendant pro se moves pursuant to CPL 440.10 to vacate his judgement of conviction on the ground that he was denied effective assistance of counsel. The People oppose.
On June 5, 2007, Defendant was found guilty, after a jury trial, of Robbery in the First Degree (Penal Law § 160.15[4] ). On July 11, 2007, Defendant was sentenced, as a second felony offender, to a determinate term of incarceration of 12 ½ years plus five years post-release supervision.
On appeal Defendant claimed that he was denied his right to a fair trial and due process of the law when at trial: (1) two police witnesses disregarded the trial court's instructions and referred to Defendant's apartment as a crime scene, in reference to an unrelated incident which was to be entirely sanitized from the case on trial; (2) during summation, the prosecutor vouched for the complainant's credibility by arguing that eyewitness identification is recognized under the law as particularly compelling evidence. Defendant also claimed that his sentence of 12 ½ years imprisonment was harsh and excessive. On November 24, 2009, the Appellate Division, First Department, affirmed Defendant's conviction (see People v. Stevenson, 67 AD3d 605 [1st Dept 2009] ).
In pro se papers dated April 1, 2011, Defendant moved pursuant to CPL § 440.10, to vacate his conviction on the basis of ineffective assistance of counsel. Defendant claimed that at a pretrial hearing, counsel failed to impeach the detective with the victim's written statement regarding the circumstances of the photo array identification procedure. Defendant also claimed that counsel unjustifiably failed to interview the victim and impeach him with his signed statement asserting that Defendant was not the individual who robbed him. In a decision dated May 11, 2012, this Court denied Defendant's motion with leave to renew, finding that Defendant's application failed to supply a complete record which should include transcripts, trial exhibits and affidavits of counsel.
Now in pro se papers, Defendant again moves to vacate his conviction pursuant to CPL § 440.10 on same grounds. Defendant has supplied relevant transcripts and exhibits and has also attempted without success to obtain an affidavit from trial counsel, Jenny Semmel, Esq. of the Bronx Defenders. Defendant claims that he was deprived of effective assistance of counsel when his counsel failed to (1) impeach Det. Matthew Crowley of the NYPD at the Wade hearing with a written statement from the victim, Alberto Nunez, regarding the circumstances of the photo array identification procedure; and (2) investigate and interview Mr. Nunez, concerning a written statement received prior to trial in which he recanted his previous statement that Defendant robbed him.
Defendant sent several letters to Ms. Semmel requesting an affidavit, one by certified mail return receipt requested and also one to co-counsel, Ms. Lilly Shapiro, Esq. Ms. Semmel is currently employed at the Bronx Defenders (Defendant's Exhibits B 1–5).
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Background
On the evening of August 15, 2006, Alberto Nunez was working alone as a sales clerk at a retail store located at 184 McClellan Street in Bronx County. At approximately 9:00 pm Defendant entered the store with three companions. Defendant and one of the men asked Mr. Nunez to show them some sneakers. The other two individuals were browsing the DVDs. After assisting with the sneakers, Mr. Nunez was returning to the sales counter, when Defendant drew a handgun and thrust it into his neck demanding that he give him money. Defendant walked Mr. Nunez toward the cash register. Once they reached the register, Mr. Nunez opened the register. Defendant reached into the register and removed all the cash, approximately forty dollars. Angered by the fact that there was not more cash, Defendant asked what else there was for him to take. Mr. Nunez told him that there were sneakers in the stock room. Defendant then grabbed Mr. Nunez forcing the barrel of his gun into his neck and walking with him to the back of the store. Once in the back of the store, Mr. Nunez complied with the Defendant's demands for certain sneakers. Defendant and his companion then fled the store with the cash and five boxes of sneakers.
Det. Matthew Crowley of the NYPD, the lead detective investigating the robbery, arrived at the robbery scene shortly and spoke with Mr. Nunez. Mr. Nunez provided details of the robbery and gave physical descriptions of all four men involved. He told Det. Crowley that he could identify the man with the gun. Mr. Nunez also drove around the neighborhood with the police looking for the perpetrators with no success.
Later that night Det. Crowley responded to an investigation of an unrelated crime. When the Detective arrived at the scene, he observed a male matching the description provided by Mr. Nunez and boxes and sneakers similar to those taken from the store. Det. Crowley returned to the precinct, generated a photo array and went to Mr. Nunez's apartment to show him the array. Mr. Nunez identified Defendant from the photo array.
The Law
All judgments of conviction are presumed to be valid. In order to prevail on a motion to vacate a judgment of conviction, a defendant has the burden of coming forward with sworn allegations creating issues of fact to be resolved at an evidentiary hearing (see People v. Session, 34 N.Y.2d 254 (1974) ; People v. Braun, 167 A.D.2d 164 91st Dept 1990). If defendant's moving papers do not contain sufficient allegations to support the claim, the Court should deny it without a hearing. CPL § 440.30(4)(b), (d).
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-prong test for establishing when an attorney renders ineffective assistance of counsel: (1) the representation must fall below an objective standard of reasonableness and (2) there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Under New York law, “[s]o long as the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met.” (People v. Baldi, 54 N.Y.2d 137, 147 [1981] ). The analysis focuses on the “fairness of the process as a whole rather than its particular impact on the outcome of the case.” (People v. Caban, 5 NY3d 143, 156 [2005]citing People Benevento, 91 N.Y.2d 708, 714 [1998] ). In order for Defendant to sustain his burden he must exclude any possible legitimate basis for counsel's conduct. He ordinarily cannot do this without an affidavit from counsel (see People v. Gil, 285 A.D.2d 7 [1st Dept 2001] ).
Wade Hearing
At the Wade hearing, Det. Crowley testified that Mr. Nunez immediately identified Defendant from a single photo array. Defendant claims that trial counsel was ineffective because she failed to impeach Det. Crowley with a written statement Mr. Nunez's gave to investigators from the Bronx Defenders on August 30, 2006 which reads in pertinent part.
At 3:30 AM that night [the detectives] came back to my house and showed me some sets of 6 of photos. In the first set I did not recognize anyone. The detective told me to look good, I said I was. They showed me a second set and I did not recognize anyone, and the detective again told me to look good. I said I was. Then he showed me a third set and said the guy who did it was in that set of photos. I asked how he knew and he said he could tell by my reaction to the photos. Then he asked which one it was and I pointed a guy out.
Defendant argues that this statement contradicts Det. Crowley hearing testimony that he did not suggest or otherwise influence Mr. Nunez to identify Defendant and that he only showed Mr. Nunez one photo array.
In response, the People maintain that the statement indicates that Det. Crowley was responding to Mr. Nunez's reaction to the photos. Also, even if counsel had established that Det. Crowley showed Mr. Nunez two additional photo arrays, it would not have impacted the hearing court's ruling denying suppression.
Defendant's claim regarding counsel's ineffectiveness at the Wade hearing is without merit. Contrary to Defendant's contention, the statement indicates that Det. Crowley was responding to Mr. Nunez's reaction to Defendant's photo. Counsel vigorously cross-examined Det. Crowley regarding the photo arrays. Moreover, even though Defendant's statement refers to three photo arrays, he does not state that Defendant was in any of the other arrays. In any case, such a discrepancy would not have altered the court's finding. Multiple photo arrays are not inherently suggestive (see People v. Garry, 269 A.D.2d 158 [1st Dept 2000] ; People v. Chapman, 161 A.D.2d 1156 [4thst Dept 1990] ).
Recantation Statement
According to Defendant on May 23, 2007, a day after the hearings and approximately a week before trial, defense counsel received an affidavit from an unidentified friend of Mr. Nunez stating:
I Alberto Nunez attest that on August 15, 2006 (9:25 pm) at 184 McClellan St. Bronx N.Y. 10456 the store J and J Multiservice I was working at was robbed. The person who robbed the store is positively not Charles Stevenson. He was not involved or had anything to do with this incident. Authorities have the wrong man in custody.
At trial on June 4, 2007, contrary to this statement but consistent with his previous statements, Mr. Nunez described in detail the circumstances of the crime and Defendant's role as the armed robber. Defendant claims that counsel was ineffective for not interviewing, investigating and cross examining Mr. Nunez with the recantation statement.
In response the People submit that counsel's decision not to use the recantation reflected sound judgement. The People maintain that it is incredible to believe that a defense attorney would unjustifiably refuse to impeach an eyewitness with a signed statement renouncing his identification of her client if she thought it reliable. The People point out that even according to Defendant, counsel allegedly stated to him that the reason she did not cross examine Mr. Nunez regarding his alleged recantation was because doing so would have exposed Defendant to a witness tampering charge. Counsel explained that it seemed somewhat strange that the victim wrote the statement declaring Defendant's innocence and then a week later testified at trial that the Defendant was the one who committed the crime. The People submit that the recantation was of suspicious timing, a day after the hearings in the case began; dubious origins, from an unidentified friend of Mr. Nunez; and, uncorroborated, inconsistent with Mr. Nunez's prior statements, and subsequent testimony. The People emphasize that the New York Code of Professional Responsibility prohibits an attorney from using false evidence.
Recantation evidence is considered among the most unreliable form of proof. When considering recantation evidence a court should weigh the following factors: (1) the inherent believability of the substance of the recanting testimony; (2) the witnesses's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation and (6) the relationship between the witness and Defendant as related to a motive to lie (see People v. Shilitano, 218 N.Y. 161[1916] ; People v. Jenkins, 84 AD3d 1403 [2d Dept 2011] ).
Here, the recantation statement was cursory and totally unlike and uncorroborated by Mr. Nunez's prior statements to the police, the lengthy statement he gave to investigators from the Bronx Defenders on August 30, 2006 or, his detailed trial testimony given approximately a week after the alleged recantation (see People v. Fernandez, 58 AD3d 494 [1st Dept 2009]People v. Cintron, 306 A.D.2d 151 [1st Dept 2003] ; People v. Bermudez, 243 A.D.2d 367 [1st Dept 1997] ).
In this case there was also physical evidence, the boxes of sneakers found in Defendant's apartment that linked him to the crime. Furthermore, counsel's alleged explanation to Defendant as to why she did not impeach Mr. Nunez with the recantation statement because it was of dubious origins and could expose him to a witness tampering charge is consistent with the unreliability of the statement. Also, the People did not receive a recantation note from Mr. Nunez. But rather, he testified in detail at trial, identifying Defendant as the robber. Additionally, the Court notes that Defendant has attempted to obtain an affidavit from counsel on numerous occasions, but to no avail.
Lastly, counsel vigorously cross-examined Mr. Nunez at trial regarding his admitted drug addiction and argued forcefully on summation that the jury should not believe that he was not under the influence of drugs at the time of the robbery. Counsel emphasized that Mr. Nunez had not appeared in court to testify voluntarily but rather was produced on a material witness order. Counsel cannot be ineffective for declining to cross examine the victim with evidence she thought could expose her client to witness tampering. Accordingly, Defendant motion to vacate his conviction on the ground of ineffective assistance of counsel is denied without a hearing.
This constitutes the decision and order of the Court.