Tagged: appeal

NY Appellate Court Upholds Vacatur of Conviction Based Upon DNA Evidence

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[1]) and Attempted Sodomy in the First Degree (PL § 110/130.50[1]), 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.”

Related Readings

Actual Innocence: Landmark Decision Changes Post-Conviction Landscape in New York

A landmark decision by the Appellate Division, Second Department has given new hope to individuals wrongfully convicted of a crime in the state of New York, and unable to obtain post-conviction relief due to the procedural restraints statutorily imposed under New York Criminal Procedure Law. On January 15, 2014,  the Appellate Court Second Department handed down its epic decision, becoming the first New York Appellate Court to recognize a freestanding claim of actual innocence, reaffirming that the incarceration of an innocent person is inherently unconstitutional.

In People v. Hamilton, the Court ruled that a defendant’s claim of actual innocence may now be recognized as a “freestanding” ground to vacate a judgment of conviction pursuant to NY CPL 440.10. (1)(h), which provides that  a court may vacate a judgement if obtained in violation of a defendant’s constitutional rights. Notably, the Court directed  that a defendant’s claim of “actual innocence”  may be pursued  independently of the other grounds for relief prescribed by New York’s post-judgement statute, and can even be supported by evidence that may fail to survive the “newly discovered” criteria imposed under NY CPL 440.10(1)(g). The Court explained that the defendant may present a claim of actual innocence based upon  new evidence, whether or not it satisfies the Salemi factors or is barred by other legal hurdles, such as prior adverse court determinations.

The Court  directed  that relief based upon an actual innocence claim should only be granted when the court is presented with clear and convincing evidence that the defendant is innocent. The court reasoned that

Mere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty.

The Court also explained that an exploration into the merits of a case may be necessary when a prima facie showing of actual innocence has been made by a defendant. In this case, the court found that Hamilton had made such a showing to require a hearing.

In response to the court’s decision, Derrick Hamilton, who spent 20 years in prison for murder, stated that “it is a crime that it has taken this long for me to receive a shot at justice.” Since his conviction, Hamilton had spent the last twenty two years  battling the criminal justice system in an effort  to clear his name. All prior attempts to vacate his conviction were denied, although making a credible presentation of alibi evidence, witness recantation, and possible manipulation of witnesses by police. The Hamilton case has also been vetted for  review by the Brooklyn District Attorney’s Office, which is currently reviewing cases handled by retired detective Louis Scarcella. The Office has undertaken a review of about 50 homicide cases to determine whether the defendants were wrongfully convicted as a result of possible police misconduct.

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Scheindlin Moves to Fight Removal but Her Motion Is Denied

Last Thursday, the United States Court of Appeals for the Second Circuit denied Judge Shira Scheindlin’s motion to vacate the order of the panel, which removed Judge Scheindlin from presiding on any further proceedings in Floyd v. City of New York, 12 Civ. 2274 (SAS).  

This Court of Appeals decision is the latest twist in the legal drama that ensued following the Floyd decision.

In its decision on Thursday, “the panel clarified that it had not ruled that Scheindlin violated the code of conduct, only that the ‘appearance of partiality required reassignment.”

As this issue gains widespread attention – drawing in the likes of lawyers, law professors, former Mayor Rudolph Giuliani, and police unions – it remains to be seen how the Second Circuit will proceed.  But one thing is certain:  the institutional reputation of this previously unusually well respected court has suffered.

 

Second Circuit Releases Decision Raising Interesting Terry Stop Issue

BY: David Restrepo

The Second Circuit recently decided United States v. Freeman, which was on appeal from a conviction for gun possession.  On appeal, the defendant argued that the police lacked reasonable suspicion to conduct the Terry stop that produced a gun in the defendant’s possession.  The Second Circuit reversed the defendant’s conviction, mainly on the ground that the police lacked reasonable suspicion to stop and frisk so that the evidence should have been suppressed.

The interesting part about the case is the court’s in-depth discussion on what constitutes reasonable suspicion.  Initially, police responded to a pair of anonymous 911 calls from the same caller.  The caller offered a description and location of the defendant, claiming that the defendant had a gun on his person.  What makes the court’s decision newsworthy is its analysis of the phone calls and their sufficiency as a basis for reasonable suspicion given that, although they were anonymous, the 911 center recorded the phone number and the caller called twice.

The Second Circuit held that the phone calls were an insufficient basis for reasonable suspicion because the information in the calls could not be corroborated.  However, the majority and dissent both discussed an issue raised by Justice Kennedy in his concurrence in Florida v. J.L., 529 U.S. 266 (2000) – whether 911 calls are really anonymous given current police technology.  In J.L., the majority held that a mere description in 911 call is not sufficient to establish reasonable suspicion.  In his dissent in Freeman, however,  Judge Wesley disagreed, suggesting that the Supreme Court should offer “further guidance in this troubling and exceptionally important area of Fourth Amendment jurisprudence.”  Whether or not the holding in Freeman is correct, Judge Wesley poses an interesting issue.  Given the speed of advancement in technology available to law enforcement, it is an issue that deserves further clarification by the Supreme Court.

Related Readings

David Restrepo, United States v. Freeman – Second Circuit, ABA Media Alerts (Nov. 7, 2013).
United States v. Freeman, No. 12-2233-cr (2d Cir. Nov. 7, 2013).

Stop and Frisk – the Fate of Floyd

The Floyd case has taken unexpected turns.  After Judge Scheindlin’s decision finding the NYPD stop and frisk practices unconstitutional, the City appealed.  Although the City did not raise the question of Judge Scheindlin’s recusal, the Second Circuit ordered her removed from the case and her ordered remedies stayed.  Then Bill De Blasio was elected mayor of New York City, pledging, among other things, to halt the stop and frisk policy and presumably to withdraw the appeal.  Now Judge Scheindlin has moved to be reinstated.

Where does all of this leave the Second Circuit’s order removing Judge Scheindlin.  Although the order was based, in part, on a finding that Judge Scheindlin had interfered with the Court’s case assignment procedures, the City was present when this alleged impropriety occurred and never moved to recuse her; nor did the City’s appeal raise the issue before the Second Circuit.   Presumably, if the Mayor-elect withdraws the appeal, though, the order of removal will disappear.  Or will it?  What happens to the ordered remedies that have been stayed?  What happens to Judge Scheindlin’s motion?

One thing that is clear is that this entire procedure is unprecedented.  What is likely to happen? What is in limbo?  The thought arises:  why did the well-respected Second Circuit panel reach out to remove Judge Scheindlin knowing that Bill DeBlasio was so likely to win and so likely to withdraw the appeal?  Is this confusion good for the system and its perception by the public?

Related Readings

Judge Asks to be Put Back on New York ‘Stop-and-Frisk’ Case, Reuters, Nov. 6, 2013.
Joseph Goldstein, Court Blocks Stop-and-Frisk Changes for New York Police, N.Y. Times, Oct. 31, 2013.
United States Court of Appeals for the Second Circuit Order of Oct. 31, 2013, staying the District Court’s January 8, 2013 Floyd “Opinion and Order,” as well as the August 12, 2013 Floyd “Liability Opinion” and “Remedies Opinion” and removing Judge Shira A. Scheindlin after concluding that the District Judge violated the Code of Conduct for United States Judges, Canon 2.