The Supreme Court, Kings County, has granted a post-conviction motion to vacate a conviction (CPL 440.10) where the defendant’s attorney accepted employment with the Kings County District Attorney’s Office after having been substantially involved in the preparation of the case for trial. The attorney was assigned to the homicide bureau, became Chief of the Trial Division, and then an Executive in the office and there were no mechanisms put in place to avoid a breach of confidence or the appearance of a conflict of interest.
People v. Dennis, Indictment No.: 12843/1989 (N.Y. Kings Cnty, Mar. 16, 2015).
In one of its last decisions of 2014, the Court of Appeals held that it will begin reviewing the Appellate Division’s summary denials of CPL 440.10(1)(g) motions. The Court had held in People v. Crimmins, 38 N.Y.2d 407, 409 (1974) that
[t]he power to review a discretionary order denying a motion to vacate judgement upon the ground of newly discovered evidence ceases at the Appellate Division.
For nearly 40 years, the Crimmins decision kept the Court of Appeals from reviewing and determining whether such denials constituted “abuse of discretion.” People v. Jones, No. 14-219, ___ N.E.3d ___, 2014 N.Y. Slip Op. 08760, 2 (Dec. 16, 2014). In Jones, this Court overruled itself and explained that “the rule enunciated in Crimmins has needlessly restricted this Court’s power of review concerning CPL 440.10(1)(g) motions….”
In Jones, the Court held that the Appellate Division abused its discretion in summarily denying a defendant’s motion for an evidentiary hearing as part of his efforts to vacate his conviction on the ground of newly discovered evidence, pursuant to CPL 440.10(1)(g). Mr. Jones claimed that newly discovered DNA evidence would exclude him as the perpetrator of crimes of which he was convicted in 1981. This decision signals a step in the right direction for the NY judiciary trying to grapple with evidence, like DNA, that may not have been available at the time of trial.
On February 27, 2014, the NY Appellate Division, First Department, unanimously affirmed a prior judgment entered in Bronx County of New York (Clark, D.), vacating Tyrone Hicks’ conviction for Attempted Rape in the First Degree (PL § 110/130.35) and Attempted Sodomy in the First Degree (PL § 110/130.50), based upon his presentation of DNA evidence that had been unearthed by his lawyer, Professor Adele Bernhard of New York Law School. At trial, the only evidence linking Hicks to the crime was the uncorroborated eyewitness identification by the victim. The jury rejected Hicks’ alibi defense, which consisted of testimony from his son-in-law, who claimed that Hicks was home when the attack occurred.
In 2009, Professor Bernhard, who directs the NYLS Post-Conviction Innocence Clinic, successfully obtained testing of genetic material found under the victim’s fingernails that had been collected shortly after the crime. The results of such testing concluded that there was male genetic material recovered from the victim’s fingernail scrapings that did not match the defendant’s DNA. Professor Bernhard petitioned the court to vacate Hick’s conviction based upon both the DNA results, and the likelihood that Hicks had been misidentified as the assailant.
In vacating Hicks’ conviction, the Bronx County Court concluded that a new trial was warranted under CPL § 440.10 (1) (g), since the results of the DNA testing “could not have been discovered prior to [Hicks’] trial,” and were “unquestionably material to the issues of identity” – undermining the “sole evidence connecting [Hicks] to the crime.” The court observed that “the DNA test results ruling out the defendant’s genetic profile [had] pronounced forensic value where there [was] multiple differing descriptions of the perpetrator by the sole identifying witness and no physical evidence linking the defendant to the crime.” Id. at 4. The court explained that the jury may have seen it to be “a particularly powerful piece of evidence, especially where the identity of [the] attacker was the primary issue at trial.”
The Appellate Court upheld the lower court’s decision to vacate the conviction based upon the defendant’s showing that the DNA results created a “reasonable probability that he would have obtained a more favorable verdict.” The Court also concluded that “the DNA evidence [was] material and exculpatory because it support[ed] identifying someone other than defendant as the attacker.” Notably, the Court rejected the government’s claim that the DNA results were cumulative, and not newly discovered under CPL 440.10 (g). Specifically, the Court noted that given the recent amendments to CPL 440.10, namely CPL 440.10 (1) (g-1), the defendant “no longer ha[d] to show that the results of [DNA] testing is newly discovered evidence in order to seek vacatur of a judgment of conviction.”
On June 6, 2013, the New York Court of Appeals affirmed the Appellate Division, First Department order vacating George Oliveras’s murder conviction. In 1999, Mr. Oliveras voluntarily went to a police station when he heard police were looking for him in connection with a murder. Even though Mr. Oliveras’s mother informed police prior to the interrogation that he suffered from mental illness, detectives interrogated Oliveras for six and a half hours – eliciting statements that were the only direct evidence connecting him to the crime. The description provided by a 911 caller did not match Oliveras and bullets found at the scene did not connect him to the crime.
Defense counsel moved to suppress Oliveras’ in-custody statements as false and coerced. But, counsel failed to conduct the investigation and analysis necessary to succeed in his strategy. Trial counsel failed to subpoena his client’s mental health records, and did not hire an expert. Oliveras was convicted.
Post-conviction, the Office of the Appellate Defender brought a C.P.L. 440.10 motion to vacate, arguing trial counsel was ineffective. After a hearing, the trial court dismissed the motion, but the Appellate Division First Department reversed and ordered a new trial. The Court of Appeals affirmed, explaining that counsel failed to pursue the minimal investigation required under the circumstances.
The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the fact and law, which required review of the records.
New York Courts are finally looking beyond the record on appeal and requiring counsel to undertake investigation demanded by the facts of the case.
To read the decision, click here.