Opinion
Ind. No. 2011/0062
02-05-2019
THE PEOPLE OF THE STATE OF NEW YORK v. MATTHEW TOWNSEND, Defendant.
APPEARANCES: SANDRA DOORLEY, ESQ. Monroe County District Attorney DANIEL GROSS, ESQ., of counsel Assistant District Attorney 47 S. Fitzhugh St. Rochester, NY 14614 for the People PRO SE for the Defendant
/2011-1172 APPEARANCES: SANDRA DOORLEY, ESQ.
Monroe County District Attorney
DANIEL GROSS, ESQ., of counsel
Assistant District Attorney
47 S. Fitzhugh St.
Rochester, NY 14614
for the People PRO SE
for the Defendant
DECISION AND ORDER
VINCENT M. DINOLFO, J.
Defendant has moved this Court pursuant to Criminal Procedure Law ("CPL") §440.10 for an order vacating his judgment of conviction alleging ineffective assistance of counsel and newly discovered evidence. Defendant has also moved pursuant to CPL §440.30(1-a) for the performance of forensic DNA testing of specified evidence.
Defendant filed an Affirmation in Support of the Motion to Vacate Judgment dated September 17, 2018. The People filed an Answering Affirmation in opposition, dated November 21, 2018. Defendant sur-replied by letter dated January 28, 2019.
Defendant stands convicted of Murder in the Second Degree for the killing of Toccara Harmon, which took place on or about January 7, 2011. He was convicted on February 22, 2012 and was sentenced to twenty-five years to life on April 5, 2012. An appeal to the Appellate Division, Fourth Department is pending, and oral argument was heard January 15, 2019.
The pertinent facts are as follows. The victim died from strangulation, her corpse was subsequently disposed of in a garbage tote belonging to a nearby restaurant. Defendant was represented at trial by Paul Vacca, Jr., Esq. Trial testimony established that Defendant was with the victim in the hours preceding the murder. He purchased crack cocaine with the assistance of the victim. Defendant the disposed of the victim's body in a garbage bin. Defendant testified at trial that he indeed had spent time with the victim in the hours before her death, but that someone else was responsible.
I. Ineffective Assistance
The right to effective assistance of counsel in criminal proceedings is guaranteed by the Federal and New York State Constitutions. See U.S. Const. 6th Amend; NY Const., Art I, § 6. The state standard for effective assistance of counsel is "the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of the representation reveal that the attorney provided meaningful representation[.]" People v. Baldi, 54 NY2d 137, 147 (1981).
Successful claims of ineffective assistance of counsel occur if defendants ". . . demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice." People v. Flores, 84 NY2d 184, 187 (1994); People v. Benn, 68 NY2d 941, 942 (1986). This standard is designed to provide the defendant with a fair trial in contrast to a perfect one. See People v. Flores, 84 NY2d 184, 187 (1994). State courts have emphasized the difference between ineffective representation and losing tactics. See People v. Benevento, 91 NY2d 708 (1998). The choice of tactics is viewed objectively. See People v. Angelakos, 70 NY2d 670 (1987); People v. Satterfield, 66 NY2d 796 (1985). "A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial." People v. Caban, 5 NY3d 143, 152 (2005); citing People v. Hobot, 84 NY2d 1021 (1995); People v. Flores, 84 NY2d 184 (1994). "Further, to establish ineffective assistance, a defendant must 'demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct." Id; citing People v Rivera, 71 NY2d 705, 709 (1988).
Scrutiny and analysis of trial counsel's effectiveness or lack thereof
must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal citations omitted).
Defendant alleges three distinct failures of his counsel: to move to dismiss the indictment on alleged deprivation of the opportunity to testify before the grand jury, of pre-trial investigation, and to challenge DNA evidence. The documentary evidence submitted by Defendant with the instant motion undermines each of his claims.
"Failure to move to dismiss the indictment based on the prosecution's failure to afford defendant an opportunity to testify before the grand jury, without more, is insufficient to demonstrate ineffective assistance, particularly where defendant failed to demonstrate an absence of strategic or legitimate reasons for counsel's failure" People v. Wright, 5 A.D.3d 873, 874 (3d Dept. 2004). In an exhibit submitted by Defendant, Defendant's counsel, Paul Vacca, Jr., Esq., initially raised the prospect of a motion for alleged deprivation of the opportunity to testify before the grand jury, but conferred with Defendant's prior counsel regarding the matter. When Vacca ascertained that previous counsel for Defendant had withdrawn his notice of intent to testify at grand jury, Vacca stated "that renders that issue moot." This is a plainly legitimate rationale for not bringing such a motion, and does not constitute ineffective assistance of counsel.
Defendant submits multiple exhibits outlining Vacca's outreach to a potential police witness, and reports from and a statement taken by his private investigator. Yet, Defendant faults Vacca's pretrial investigation. Defendant also alleges, without elaboration, a failure to meet with several witnesses who may have provided exculpatory testimony. There is nothing in Defendant's allegations that demonstrates these witnesses actually had exculpatory testimony to provide, absent Defendant's apparent surmise that they may have provided exculpatory testimony.
Defendant further contends Vacca failed to adequately investigate DNA evidence. It is clear from Vacca's handling of DNA evidence at trial that he was knowledgeable and competently confronted its probative value through cross-examination and strategy. Defendant's own motion concedes it is possible to laud Vacca's ability to extract the concession that a third person's DNA was on the victim's neck.
The Court finds that Vacca's investigation and cross examination of witnesses and particularly those witnesses whose focus was DNA evidence reflected a strategy that was effectively carried out at trial, albeit unsuccessfully. Mindful that tactics that ultimately are unsuccessful are not a proxy for ineffective representation, the Court cannot say that Defendant was denied a fair trial. In fact, Vacca's zealous representation and defensive strategy at trial was especially impressive given the quality and quantity of scientific and direct evidence of Defendant's guilt. As such, Defendant's motion with respect to alleged ineffective assistance of counsel is denied.
II. Newly discovered evidence
It is well settled that in order to show entitlement to a new trial on the ground of newly discovered evidence, a defendant must prove that the "newly discovered evidence": (1) would probably change the result if a new trial was granted; (2) it was discovered since the trial; (3) it could not have been discovered prior to trial; (4) that it is material evidence; (5) which is not cumulative and: (6) it does not merely impeach or contradict the record evidence. People v. Bryant, 117AD3d 1586 (4th Dept. 2014). Further, the power to grant such an order is purely statutory and may only be exercised when the requirements of the statute are met and such a determination rests within the sound discretion of the court. People v. White, 125 AD3d 1372 (4th Dept. 2015).
Defendant fails to demonstrate that this alleged "newly discovered evidence" would probably change the result if a new trial was granted. The Inspector General's report does not allege evidence was mishandled in this particular case, rather it documents improper procedure concerning the statute of limitations and how evidence was processed, as well as a failure to re-analyze potential false negatives. Neither scenario is implicated in the manner in which evidence in this case was handled. As such it is unlikely this evidence would change the result in the event of a new trial.
Defendant's "newly discovered evidence" also fails to go beyond merely impeaching or contradicting record evidence. It does not directly attack any evidence presented in this matter, it does so only in a collateral sense. Defendant invites the conclusion that because errors happened in the manner the Inspector General's report outlined, so too must errors have been made with the forensic evidence presented against Defendant in this case. This evidence is classic impeachment material, and its scope does not go beyond that.
Because Defendant fails in at least these two respects, Defendant's motion with respect to newly discovered evidence is denied.
III. Request for testing
Defendant moves for forensic DNA testing of evidence, specifically a hair found on the victim's left hand, a white sweater from near the scene, and the handle of the garbage tote, as well as all evidence, alleging an inference can be drawn based upon the Inspector General's report that evidence in this case was mishandled. In order for a court to direct such testing, it must be satisfied that "if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant." CPL 440.30(1-a).
As discussed above, the inferential link Defendant alleges between the Inspector General's report and the forensic testing of evidence in this case, on the evidence contained in the submissions of the parties, is speculative. As the People correctly argue, even accepting the conclusion that the forensic testing in this case was compromised, Defendant has not demonstrated "within a reasonable probability that the test results would have resulted in a verdict that was more favorable to the defendant." People v. West, 41 AD3d 884, 884 (3d Dept. 2007).
The contours of the People's case at trial, indeed even the concessions of Defendant himself in his trial testimony, corroborate the forensic findings presented. Even were the evidence compromised as Defendant alleged and a different testing result were reached, a different verdict would not be probable. A finder of fact would not be inconsistent to find Defendant guilty and that third party DNA was on the victim-indeed that was the proof presented at trial. This point also holds true as to the specific items (a hair found on the victim's left hand, a white sweater from near the scene, and the handle of the garbage tote) Defendant seeks to have tested.
Further, even absent a forensic finding that Defendant's DNA was on the victim, it is reasonably probably that the verdict would have been the same. Powerful eyewitness testimony showed Defendant disposed of the victim's body in a garbage tote. As such, Defendant's motion for forensic DNA testing is denied.
Defendant is not entitled to a hearing on this motion because the motion can be determined on the trial record and the submissions now before the Court. People v. Satterfield, 66 N.Y.2d 796 (1985); People v. Jamison, 71 A.D.3d 1435 (4th Dept. 2010).
The Court has reviewed the remainder of Defendant's arguments and finds them without merit.
Based upon all of the foregoing, Defendant's motion herein is denied in all respects.
This constitutes the Order of the Court. Dated this 5th of February, 2019.
/s/_________
Hon. Vincent M. Dinolfo
Monroe County Court Judge Enter: