People v. Alicea

• Decision Date: 27 March 1997
• Citation: 229 A.D.2d 80,656 N.Y.S.2d 2
• Parties: The PEOPLE of the State of New York, Appellant, v. Angel ALICEA, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 2

656 N.Y.S.2d 2

229 A.D.2d 80

The PEOPLE of the State of New York, Appellant, v. Angel ALICEA, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

March 27, 1997.

Patrick J. Hynes, of counsel (Mark Dwyer, on the brief, Robert M. Morgenthau, District Attorney of New York County, attorney), for appellant.

Kenneth Walsh, for defendant-respondent.

Before SULLIVAN, J.P., and ROSENBERGER, NARDELLI, RUBIN and WILLIAMS, JJ.

SULLIVAN, Justice Presiding.

Since, as the hearing testimony shows, defendant's trial counsel provided him with effective assistance, we reverse the order vacating the judgment of conviction based on a contrary determination by the trial court and reinstate the same.

After a jury trial, defendant was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree and sentenced to concurrent terms of imprisonment of from seventeen years to life and one year, respectively. His conviction arose out of an incident that, according to the trial testimony, occurred on October 23, 1988 at about 3 a.m. At the time, Stanford Hewitt, James Williams, Sinclair Towe and Clarence Crawford were walking towards the train station on Pitt Street on the lower East Side on their way to Hewitt's house in Brooklyn to spend the night when they observed defendant, co-defendant Michael Rivera ¹, a dark-skinned Hispanic, and two others walking toward them from the opposite direction. Defendant, wearing a green jacket, and the two others were light-skinned Hispanics. Words were exchanged between Rivera and Hewitt. At the time, defendant and his companions had nothing in their hands. Rivera, his fist clenched at his side, kept taunting Hewitt, who "[stood] his ground."

Williams, seeing Rivera take a black-bladed knife from under his shirt, rushed over to his friend Hewitt, placed his arms around him and urged him to leave. Hewitt agreed. Towe, at Hewitt's side, began to walk ahead. After walking about 40 feet, Towe realized that the two others were still at the scene. He turned to see Rivera walk up to defendant and, as the two stood close together, observed Rivera speak to defendant. From the position of their hands, it seemed as though Rivera handed something to defendant. Neither Towe nor Crawford saw an exchange of an object.

Suddenly, as Williams and Hewitt were turning to leave, Rivera, hands by his side, turned around and walked up to Hewitt, who was still being shielded by Williams. Rivera swung over Williams and punched Hewitt. Hewitt grabbed Rivera and the two began fighting. Their struggle took them to the other side of the street. Defendant pulled out a dark-colored knife while one of his two unidentified companions displayed a gun. At one point during their struggle, Rivera was on the ground with Hewitt on top of him.

As Hewitt and Rivera fought, defendant and his armed companion raised their weapons and ran toward them. Defendant held the knife over his head as he approached Williams, trying to separate Hewitt and Rivera. Williams grabbed the gunman, who "motioned like he was shooting the gun", and the two fell to the ground. Eventually, the gunman hit Williams over the head with a heavy object, causing him to bleed. Williams could not see where his assailant went.

As defendant ran toward Williams, he was intercepted by Crawford, who, in trying to grab defendant by the hand, grasped the blade instead. Defendant immediately pulled the blade away, slashing the middle fingers of Crawford's left hand. Raising the knife, defendant ran toward Crawford again, slashing him on the neck and coat. Crawford frustrated the attack by kicking the defendant and causing him to fall. Defendant, however, was soon back on his feet waving the knife back and forth.

Apparently aware at this point that Crawford and Williams were both injured, defendant "backed off" and moved over several yards to where Hewitt was still fighting with Rivera. Crawford, bleeding from the head and hand, and Williams, who were walking away from the scene, turned and saw defendant and his companions run toward the corner.

Crawford, Williams and Towe heard Hewitt, standing at the curb grabbing his stomach, calling Crawford by his nickname, "Booby". Instead of crossing the street and joining his friends, however, Hewitt collapsed. Rushing to his side, his three companions found Hewitt bleeding profusely from his stomach; Hewitt said nothing; his eyes "just rolled back". Defendant and his friends stopped to watch from the corner and then fled across Houston Street. A little over one minute had elapsed since the incident began. Hewitt died at the scene. An autopsy revealed five cutting injuries, including three superficial cuts to the head and two stab wounds to the body, which were the cause of death. One entered the chest and penetrated the heart; the other entered from the back and penetrated the left lung.

When the police responded, defendant was described to them as light skinned, with no facial hair, five feet seven inches tall, weighing about 135 pounds, with short hair and wearing a green jacket and baseball hat. The police recovered a blood-covered knife at the scene, later identified by Crawford as the one used to attack him moments before Hewitt was stabbed, and followed a trail of "little droppings" of blood from Pitt Street across East Houston Street two and one-half blocks and up the steps of the apartment building at 50 Avenue D. The trail continued up the staircase to the sixth floor, apartment 6D.

A search of the apartment, consented to in writing by the occupant of the apartment, co-defendant Rivera's mother, uncovered a green jacket, pair of pants and hat. No blood was found on the clothing. The blood on the knife, which failed to reveal any readable fingerprints, was identified as human. Rivera surrendered later that day at the precinct. Defendant, bandaged on the left thumb, was arrested at his home that evening. The police conducted three lineups, which included defendant, Rivera and one other companion and which were viewed separately by Towe, Crawford and Williams. Crawford identified both defendant and Rivera as his assailants. He recognized defendant as the one with the knife that he had grabbed and Rivera as the one who had fought with Hewitt. Williams identified only the gunman. Towe could not identify anyone.

Defendant's conviction was affirmed by this court and his application for leave to appeal to the Court of Appeals denied. (173 A.D.2d 397, 570 N.Y.S.2d 29, lv. denied 78 N.Y.2d 96l, 574 N.Y.S.2d 940, 580 N.E.2d 412.) In affirming, this court rejected defendant's claims, inter alia, that the evidence was insufficient to prove his identity as the killer and that he had been denied the effective assistance of trial counsel.

Defendant subsequently moved, pro se, to vacate his conviction, alleging that a police complaint report of an interview with the witness Towe had not been disclosed by the People at trial and constituted Rosario as well as Brady material. Post-judgment defense counsel filed supplemental papers in support of the motion, repeating the Rosario/Brady claim and alleging also that defendant's trial counsel had rendered ineffective assistance if, having received the Towe report, he had not used it to cross-examine Towe. The People maintained that the Towe report had been disclosed and argued that there were possible tactical reasons for the absence of cross-examination based on the report, which, in any event, did not prejudice defendant. After inspecting the entire Police Department file, which had been turned over to him, post-judgment defense counsel claimed that five additional documents, including a complaint report reflecting an interview with the witness Crawford, were also missing from trial counsel's file, raising the inference that they too had not been disclosed. Defense counsel requested a hearing, which was ordered.

At the hearing, Police Officer Bellezza testified that he responded to a report of an assault at the corner of Pitt and Stanton Streets. In time he interviewed Hewitt's three companions, Crawford, Williams and Towe. That same morning, he prepared three complaint reports, which reflected his own observations and information gathered from the interviews. The report on the Hewitt attack, based on statements of the witness Towe, contains the assertion that "Perp # 1 M/B produced above described weapon [black-handled knife], stabbing victim in right side chest, right shoulder blade in back and (2) slash marks to left neck." The report on the Crawford attack attributed to Mr. Crawford an assertion that "[i]t escalated into with Perp # 1 (M/B) producing above knife. Perp then thrust toward victim."

Defendant's trial counsel, whose practice was to maintain complete files, including Rosario and Brady material, on all past cases and who had moved his office and files since the time of defendant's trial, received a copy of the Towe complaint report three years after the trial from defendant and, on a review of his file, could not find a copy of the report. Two years later, post-judgment counsel sent him copies of the Crawford complaint report as well as the third complaint report prepared by Officer Bellezza; on reviewing his file, trial counsel could not find a copy of either report. Post-judgment counsel also sent copies of three complaint follow-up reports to trial counsel, who did not find copies of these reports in his file either.

Trial counsel testified that if he had had the Crawford and Towe reports at trial, he "[a]bsolutely" would have used them to cross-examine Crawford, Towe and Bellezza. He was "shocked" when post-judgment counsel showed him the reports and stated flatly that he "never had" the reports before then. On cross-examination, however, when shown a transcript of Officer Bellezza's trial testimony that he had indeed prepared three complaint reports, trial counsel could not remember whether he...