People v. Colon
| Decision Date | 19 November 2009 |
| Docket Number | No. 163,No. 162.,162.,163 |
| Citation | 918 N.E.2d 936,13 N.Y.3d 343,890 N.Y.S.2d 424,2009 NY Slip Op 8477 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANNY COLON, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY ORTIZ, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Shortly after midnight on December 8, 1989, the occupants of a van opened fire on two cars at a Manhattan intersection, killing two men and wounding two others. In the fall of 1990, defendants Danny Colon and Anthony Ortiz were arrested in connection with the shootings and charged with four counts each of second-degree murder, attempted second-degree murder and first-degree assault, as well as various weapons offenses.
At their joint trial in 1993, only two witnesses linked defendants to the crime. Anibal Vera, a childhood friend and former associate of Colon in a drug-dealing operation, testified that he was with defendants the day after the shootings. According to Vera, Colon admitted that he was one of the shooters and that Ortiz also participated in the crime. During his testimony, Vera acknowledged that he did not implicate defendants until he was arrested in March 1990 on misdemeanor drug charges. As a result of his entering into a cooperation agreement with the District Attorney's office, he agreed to testify against Colon and Ortiz. In return, he was permitted to enter a guilty plea to disorderly conduct and avoided jail time for what would have been a probation violation. Vera claimed that this favorable plea deal was the "only benefit" he received in exchange for his testimony and that the prosecutor did not "have anything to do with the disposition" of his subsequent 1992 felony drug charges, for which he received a sentence of 2½ to 5 years upon his guilty plea.
The second witness, Daniel Core, testified that he spoke with Colon and Ortiz while they were incarcerated together and each admitted his role in the December 1989 shootings. Core recalled Colon describing the shootings as a drug-related ambush and that Colon had identified Wilbur Hernandez, Willie Perez and "Moose" as the other occupants in the van.1 Core explained that at the time he reported this information to the authorities, he was facing life imprisonment for the March 1990 murders of the two survivors of the December 1989 attack, as well as federal drug conspiracy charges. He agreed to execute written cooperation agreements with state and federal prosecutors in the hope that, in exchange for his testimony against defendants, he would obtain substantially reduced sentences on his guilty pleas. Core also admitted at trial that he had been a drug dealer whose operations grossed up to $140,000 a day; that he was responsible for numerous murders in connection with his drug activities; and that he had previously lied to a grand jury in an unrelated case.
During summation, the prosecutor repeated Vera's assertion that he had not received "any benefit" other than the favorable plea agreement resolving his 1990 misdemeanor drug case. The prosecutor also stressed that she had "nothing to do with the plea [Vera] ultimately took with a two and a half to five year sentence" in connection with his 1992 felony narcotics arrest.
The jury convicted defendants of two counts each of murder in the second degree, attempted murder in the second degree and assault in the first degree, and one count each of criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Defendants were sentenced to two consecutive prison terms of 25 years to life for the murder convictions, which were to run concurrently with the lesser sentences imposed for the other convictions. Their judgments were affirmed on direct appeal (see 238 AD2d 213 [1st Dept 1997], lv denied 90 NY2d 862 [1997], 90 NY2d 892 [1997]).
In 2003, Colon moved under CPL 440.10 to vacate the judgment, arguing that Vera had received additional benefits in exchange for his testimony and that the prosecutor had failed to correct Vera's false testimony. Ortiz later joined in the motion and Supreme Court conducted a hearing at which the prosecutor testified but Vera did not appear.
At the hearing, defendants established that the District Attorney's office had engaged in further activity on Vera's behalf that neither Vera nor the prosecutor revealed during the trial. Specifically, the prosecutor had assisted in the relocation of Vera's grandparents by contacting the New York City Housing Authority. Defendants also demonstrated that the prosecutor was involved with Vera's 1992 felony drug case on two occasions. First, the prosecutor appeared at a calendar call to tell Vera about a plea offer of 2½ to 5 years that had been authorized by the Office of the Special Narcotics Prosecutor. Second, approximately one month later, the prosecutor left a phone message with the narcotics prosecutor regarding Vera's status as a witness in defendants' murder trial.2 Defendants also revealed that the prosecutor was aware that a gun had been recovered from Vera's hotel room prior to the murder trial and that Vera was never arrested or prosecuted for its possession.
Furthermore, the District Attorney's office produced two handwritten notes by the trial prosecutor, dated March 28, 1990, that pertained to her interviews of two women who claimed to have information about the shootings. These notes had not been disclosed to defense counse...
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...Charge One Should Be SustainedThe prosecutor's role as a "public officer[ ]" is well recognized ( People v. Colon, 13 N.Y.3d 343, 349, 890 N.Y.S.2d 424, 918 N.E.2d 936 [2009] ; Matter of Curry v. Hosley, 86 N.Y.2d 470, 473, 634 N.Y.S.2d 28, 657 N.E.2d 1311 [1995] ["[T]he District Attorney's......
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