People v. HowardPeople v. Howard
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Erie County Court for a hearing pursuant to
We reject defendant‘s contention in his main and pro se supplemental briefs that he was entitled to a hearing on his claim of newly discovered evidence. Defendant‘s claim is based on the notarized but unsworn statement of an eyewitness in which she recanted her trial testimony and contended that she did not observe defendant shoot the murder victim. On a motion to vacate a judgment of conviction pursuant to
In recognition of the fact that “[t]here is no form of proof so unreliable as recanting testimony” (People v Shilitano, 218 NY 161, 170 [1916], rearg denied 218 NY 702 [1916]; see People v Jenkins, 84 AD3d 1403, 1407 [2d Dept 2011], lv denied 19 NY3d 1026 [2012]), courts have set forth a list of factors to be considered where, as here, the newly discovered evidence is recantation evidence, i.e., “(1) the inherent believability of the substance of the recanting testimony; (2) the witness‘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
Here, as County Court determined, the witness‘s recantation was “not inherently believable” inasmuch as it contradicted not only her own trial testimony but also that of two other eyewitnesses who testified that they were in the witness‘s company when they all observed defendant shoot the victim (People v Avery, 80 AD3d 982, 985 [3d Dept 2011], lv denied 17 NY3d 791 [2011]). Moreover, the witness subsequently retracted her recantation in an interview with members of the District Attorney‘s Office. During that interview, the witness explained that she initially recanted her trial testimony because she had been threatened by associates of defendant and had been offered a substantial amount of money to recant. In our view, the court properly determined that the witness‘s recantation was ” ‘totally unreliable’ ” (Pringle, 155 AD3d at 1661; see Lane, 100 AD3d at 1540-1542; Simmons, 20 AD3d at 815; People v Cintron, 306 AD2d 151, 152 [1st Dept 2003], lv denied 100 NY2d 641 [2003]) and that there was “no probability that if such evidence had been received at the trial the verdict would have been more favorable to . . . defendant” (People v Backus, 129 AD3d 1621, 1625 [4th Dept 2015], lv denied 27 NY3d 991 [2016]).
Defendant further contends in his main and pro se supplemental briefs that the court erred in denying without a hearing that part of his motion claiming ineffective assistance of counsel based on defense counsel‘s failure to investigate and secure the testimony of witnesses who would have corroborated the alibi evidence presented at trial by defendant and his mother. We agree.
It is well settled that “[a] defendant‘s right to effective assistance of counsel includes defense counsel‘s reasonable investigation and preparation of defense witnesses” (People v Conway, 118 AD3d 1290, 1291 [4th Dept 2014]; see People v Mosley, 56 AD3d 1140, 1140-1141 [4th Dept 2008]). Here, defendant‘s
“While a hearing may ultimately reveal that counsel made reasonably diligent efforts to locate the [alibi] witness[es]’ and present their testimony at trial” (Pottinger, 156 AD3d at 1380) or that there was a strategic reason for counsel‘s failure to do so (see Conway, 118 AD3d at 1291), defendant‘s submissions from those witnesses raised factual issues requiring a hearing (see generally People v Frazier, 87 AD3d 1350, 1351 [4th Dept 2011]). We thus reverse the order and remit the matter to County Court to conduct a hearing pursuant to
Entered: August 22, 2019
Mark W. Bennett
Clerk of the Court