OPINION OF THE COURT
In American jurisprudence, an acquittal of criminal charges does not signify that the acquitee did not actually commit the crime (United States v Watts,
In deciding this motion to vacate the judgment, the court has considered the moving papers and all responsive papers, the trial record, the hearing testimony, the oral arguments, defendant’s document dated March 3, 2003 entitled “Defendant’s Summation” and the People’s posthearing memorandum of law.
On August 4, 1985 at approximately 1:00 p.m. near the corner of Fulton Street and Spencer Place, Brooklyn, New York, a man was shot. The police investigated the shooting and were told by various witnesses, including a Mr. Fleming, the name of the shooter. Mr. Fleming chose a photograph of a person who was incarcerated at the time of the shooting. Other witnesses identified other persons whom the investigation ruled out.
On February 1, 1986, one Jeffrey Campbell,
On February 27, 1986, the instant indictment was filed charging the defendant with murder in the second degree and related charges. Prior to the filing of the indictment, both Mr. Fleming and the defendant testified during the grand jury presentation that the defendant was not the shooter.
On March 11, 1986, the defendant was arraigned and pleaded not guilty.
On March 17, 1987, a jury trial commenced. The People presented the testimony of Mr. Campbell and another eyewitness. Both of these witnesses identified the defendant as the shooter. The defendant presented a different eyewitness who knew the defendant and testified that the defendant was not the shooter. The defendant also called an alibi witness to testify that the defendant was at a location other than the scene of the crime at the time of the shooting. Neither Mr. Fleming nor the defendant testified at trial.
On March 23, 1987, the jury convicted the defendant of manslaughter in the first degree and related charges.
On August 7, 1987, the defendant was sentenced. His sentence was to run consecutive to his Manhattan 6 years to life sentence.
By order dated September 12, 2002 (NYLJ, Sept. 20, 2002, at 20, col 4), the court directed a hearing regarding the newly discovered evidence claim raised in defendant’s papers. The
At the hearing the defendant called four alleged eyewitnesses who testified that they saw the shooting and that the defendant was not the shooter. All four alleged eyewitnesses identified a person by the name of “Denzel” as the shooter. All four of the eyewitnesses have extensive criminal records. The defendant also presented an audiotape and a videotape of the recantation of Jeffrey Campbell.
CPL 440,10
Except where authorized by law, the “adjudicatory power of the criminal court end[s] with the imposition of a sentence” (People v Stevens,
Newly Discovered Evidence
The power to grant a new trial on the ground of newly discovered evidence is purely statutory (Salemi,
The six Salemi (
“1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence.”
The “it” refers to the newly discovered evidence. The newly discovered evidence must be evidence admissible at trial (People v Boyette,
In this case, the audiotape and videotape of Mr. Campbell’s alleged recantation and the statement by Mr. Fleming do not constitute newly discovered evidence.
The court finds that the defendant has failed to establish by a preponderance of the evidence that the uncalled eyewitnesses could not have been discovered prior to trial with due diligence.
Brady
The State has a duty to disclose exculpatory evidence in its possession which is material to the guilt or innocence of the defendant (Brady v Maryland,
The People have no obligation to supply a defendant with material that the defendant knew or should have known existed and knew or should have known was exculpatory (People v Doshi,
Where a defendant has made a specific request for a particular item of evidence, a court judges the materiality of the evidence by whether there is a reasonable possibility that the failure to disclose the item affected the verdict (Brady,
Although several of the witnesses testified that they informed the police of the innocence of the defendant, the court finds such testimony unworthy of belief. The testimony is contradicted by documentary evidence and the testimony of the investigating police officers.
The court finds that the defendant has failed to prove by a preponderance of the credible evidence that the State possessed exculpatory evidence that was not turned over to the defense.
The defendant has also failed to show that he did not know of the exculpatory information. Some of the witnesses stated that prior to trial they informed the defendant or his brother {see n 6 herein).
The question now arises whether there is a provision in CPL article 440 that authorizes the court to vacate the judgment based on a free-standing claim of innocence. The issue distills to whether the conviction or incarceration of a factually innocent person is a violation of the New York State Constitution. If the conviction or incarceration does violate the State Constitution then CPL 440.10 (1) (h) provides a basis for vacating the judgment.
Separation of Powers
Both the United States Constitution (art II, § 2 [1]) and the New York State Constitution (art iy § 4) accord the chief executive officer of government the right to grant clemency or a pardon to a convicted person. As pointed out by Chief Justice Rehnquist in Herrera v Collins (
Dicta in three old New York Court of Appeals decisions support Chief Justice Rehnquist’s rationale (People ex rel. Prisament v Brophy,
“Under an ideal system of administration of justice a person convicted of a crime should, perhaps, be granted an opportunity to present to a court proof of his innocence whenever such proof becomes available and, then, to ask the court to vacate the erroneous judgment. In practice, inflexible rules of procedure may deny to a person wrongfully convicted any further access to the court. Then his only means of redress is appeal to the executive.”8
The dicta in the above-noted cases would bar a court from vacating a judgment based on factual innocence.
The rationale of two New York Court of Appeals decisions contradict Chief Justice Rehnquist’s position and the dicta in
“Rare instances may arise, however, where one convicted, disbarred and pardoned may be able to satisfy the court that his guilt has not been proved or even to go farther and demonstrate his innocence. In these exceptional conditions, the administration of justice would be subject to reproach if an implacable law of remedies were to close the door forever upon the hope of vindication.”
It must be remembered that under the New York State Constitution a pardon based on actual innocence does not constitute a nullification of the conviction, and the conviction remains intact (Lyons v Goldstein,
The court is aware that Executive Law § 19 provides that where a convicted person has been pardoned based upon innocence and a motion to vacate the judgment based upon newly discovered evidence would be untimely, then such individual may apply to the court to vacate the conviction and the court must grant the motion. This statute is antiquated and inapplicable under current law, as there is no current legal time bar to a motion to vacate a judgment based upon newly discovered evidence.
The inadequacy of the pardon as a remedy for wrongfully convicted individuals has been pointed out by the Court of Appeals (Lyons,
Not all these criticisms are valid in New York. An examination of the Guidelines for Review of Executive Clemency Applications (reprinted following McKinney’s Cons Laws of NY, Book 18, Executive Law § 15) shows the following criteria:
“Pardon is most commonly available:
“(1) to permit a judgment of conviction to be set aside where there is overwhelming and convincing proof of innocence not available at the time of conviction.”
Thus, there are criteria in New York for executive pardon based on factual innocence.
Also, the court notes that the Kangs County District Attorney has established a section of the office to examine claims of actual innocence. Indeed, the court is aware of several cases in this county where the prosecution has requested the court to vacate a conviction based upon what was later determined to be an unjustified conviction of a defendant. Although the District Attorney is an executive officer, the motion to vacate is made to the court and not to the governor for a pardon.
However, this court has been unable to locate any case that discusses whether under the New York State Constitution it is unconstitutional to convict and to incarcerate a guiltless person. In this regard it is a judicial function to determine whether the New York State Constitution bars the conviction or the jailing of an actually innocent individual. It is a judicial function to vacate a court judgment which violates the Constitution (In re Opinion of Justices, 234 Mass 612,
The court must now consider whether the New York State Constitution bars the conviction and continued incarceration of a guiltless person.
Federal Constitution and Other States
The United States Supreme Court has refused to hold that it is improper for a state to incarcerate an innocent person,
New York provides for the pardon of an actually innocent defendant {see Executive Law § 19; see also People v Chichester,
Many states have similarly held that a free-standing claim of actual innocence is insufficient to provide for postconviction relief (State v Byrd, 145 Ohio App 3d 318, 323,
Several states hold that the conviction or incarceration of an actually innocent defendant is either unconstitutional or is, in and of itself, sufficient to vacate a conviction (People v Washing
New York State Constitution
The New York State Constitution grants an accused greater rights than those provided in the Federal Constitution (see People v Harris,
Our Court of Appeals has recognized that the function of a criminal prosecution and the interest of society is to convict the guilty and to acquit the innocent (People v Roselle,
It is clear from the above that one of the goals of the New York Constitution is to insure that the guiltless are acquitted. Not only are procedures to achieve a goal part of the Constitution, but those goals are considered by this court as essential parts of the Constitution. Thus, the ends of acquitting the non-guilty is an essential part of the Constitution.
Article I, § 6 of the New York Constitution prohibits the deprivation of liberty without due process of law. The concept of due process requires that the government grant “elemental fairness” to an accused (Vilardi,
Article I, § 5 of the New York Constitution prohibits the imposition of cruel and unusual punishment. This prohibits punishing a person disproportionately to the crime committed (People v Broadie,
Whatever the rubric used, the court finds that the conviction of and/or punishment imposed upon an innocent person violates the New York State Constitution.
CPL 440.10 (1) (h) provides for the vacating of a judgment which was obtained in violation of an accused’s constitutional rights.
Standard for Determining Actual Innocence
The function of a standard of proof is to instruct the fact-finder “concerning the degree of confidence our society thinks . . . should [be had] in the correctness of [the] factual conclusion [ ]” (People v Geraci,
The courts and individual judges or justices that have discussed the appropriate burden of proof for a free-standing claim of innocence have come to divergent opinions (see Herrera,
In Schlup (
This court must balance the various interests and determine the proper standard of proof under the New York State Constitution. The government has an interest in the finality of a conviction once it has accorded an accused all of the constitutional rights required by law (People v Machado,
A person who has not committed any crime certainly has a strong interest in remaining at or returning to liberty.
Balancing the public and private interests involved and considering that the defendant has had the opportunity to prove his innocence, the court finds that a movant making a freestanding claim of innocence must establish by clear and convincing evidence (considering the trial and hearing evidence) that no reasonable juror could convict the defendant of the crimes for which the petitioner was found guilty.
In this respect, a court conducting a hearing on a claim of innocence should admit into evidence any reliable evidence whether in admissible form or not (see Bousley,
All courts that have ruled that a petitioner may make a freestanding claim of innocence have held that if a court upholds such a claim a new trial should be ordered (see cases cited above). This court disagrees. If a court has determined by clear and convincing evidence that no reasonable juror could convict the defendant of the charged crime, what purpose does a new trial serve? There is no reasonable juror who could convict. Thus, any juror who does convict is unreasonable. There appears to be no reason to order a new trial.
Further, if the jury convicts such a person, this second conviction would be equally unconstitutional as there exists clear and convincing evidence that no reasonable juror could convict the defendant.
Thus, if a court sustains a free-standing claim of innocence, the court should vacate the conviction and dismiss the accusatory instrument.
Application to this Case
In determining whether this defendant has met his burden of proof the court has considered the following:
1. The credibility of the defendant’s witnesses is questionable in light of their extensive criminal history. However, this does not make the witnesses as a matter of law incredible (People v Adams,
2. This court has already found that parts of the defendant’s witnesses’ testimony is incredible in one aspect, and thus there is justification for rejecting all of their testimony (see People v Johnson, 225 AD2d 464, 464 [1996]).
3. The 16-year delay by the witnesses in claiming that the defendant is innocent affects their credibility (see People v Vasquez,
4. All the descriptions given to the police at the time of the incident do not match that of the defendant’s appearance at the time of the crime.
5. The stories of the witnesses regarding the crime are consistent with each other and with the defendant’s trial witnesses.
6. The time line testified to by the defendant’s hearing witnesses is inconsistent with documentary evidence and the testimony of the police officers called at the hearing. Some of
7. There is evidence that the defendant or a person on his behalf (his brother) threatened and bribed certain witnesses. This is evidence of consciousness of guilt (see People v Bennett,
8. There was nothing about the demeanor of the defendant’s hearing witnesses that would cause the court to disbelieve their testimony (although some of the previous reasons would be grounds).
Given all the above, the court finds that the defendant has failed to prove by clear and convincing evidence that no reasonable juror could convict the defendant. For the purpose of completeness and for the purpose of review should an appellate court determine that the proper applicable standard would be different, this court finds that the defendant has shown that he is probably innocent (more likely than not approximating 55%).
The motion to vacate the conviction is denied.
Notes
. Jeffrey Campbell had been originally arrested when a police officer observed him fleeing the scene. He was released based on evidence that he was not the shooter.
. The defendant is currently serving both sentences.
. Although the defendant’s original motion did not specifically address these claims, a fair reading of the papers did. The court ordered that these grounds be added to the hearing in order to give all parties an opportunity to address the legal and factual issues.
. Mr. Campbell is no longer alive.
. In some cases the Court of Appeals has stated that a lower court has the “inherent” power to set aside a judgment obtained by “fraud, misrepresentation, violation of defendant’s constitutional rights or other similar trial errors” (People v Farrell,
. For example, the witness Tildón Edwards stated that he had appeared before the grand jury as a defense witness and was never called. Edwards also testified that he came to court with the defendant’s brother. It is clear that defense counsel with a little diligence could have spoken to Mr. Edwards and discovered the names of the other witnesses who were present. Mr. Edwards knew all the names of the witnesses who were presented at the hearing. The witness Bertram Carter said he told the defendant while in the Brooklyn House of Detention that he knew that the defendant was not the shooter. The witness Derrell Gregory testified that he informed the defendant’s brother about his potential testimony that the defendant was not the shooter before the commencement of the trial. The testimony of the defendant’s investigator also shows that with due diligence the witnesses could have been discovered. If the investigator found these witnesses 16 years after trial, there appears to be no reason why these witnesses could not have been located at the time of the trial.
. The court finds the detectives’ testimony in this regard to be credible.
. Similar sentiments were expressed by Justice Scalia (joined by Justice Thomas) in his dissent in Bousley v United States (
. New York at one time did in fact place a two-year time limitation on such motions.
. This is just a sampling of the decisions in the federal court. The court is aware of the case of Carriger v Stewart (
. This case was decided after this court’s original decision in this case.
. Since the determination in this case centers on what a reasonable juror could find, it is not necessary for the court to make a final credibility determination.
. The reason the court has put a percentage in this decision is for the purpose that should an appellate court adopt a standard between “probably innocent” and “clear and convincing,” the appellate court can apply that standard to this case without remanding the matter.