People v. Deacon

• Decision Date: 20 June 2012
• Citation: 946 N.Y.S.2d 613,2012 N.Y. Slip Op. 05016,96 A.D.3d 965
• Parties: The PEOPLE, etc., respondent, v. Derrick DEACON, appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 965

946 N.Y.S.2d 613

2012 N.Y. Slip Op. 05016

The PEOPLE, etc., respondent,

v.Derrick DEACON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 20, 2012.

Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y. (Roberto Finzi, Ilana D. Waxman, Andreé Goldsmith, and Jane B. O'Brien of counsel), and Stillman, Friedman & Shechtman, P.C., New York, N.Y. (Sarah K. Jackel of counsel), for appellant (one brief filed).

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Lori Glachman of counsel), for respondent.

Glenn A. Garber and Rebecca E. Freedman, New York, N.Y., for amicus curiae Exoneration Initiative (one brief filed).

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Tomei, J.), dated November 9, 2009, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered January 12, 1990, convicting him of murder in the second degree (two counts), robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and for a new trial, on the ground of newly discovered evidence or, in the alternative, to vacate the judgment and dismiss the indictment on the ground of actual innocence.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPL 440.10(1)(g) to vacate the judgment of conviction on the ground of newly discovered evidence and for a new trial, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, the judgment is vacated, and a new trial is ordered.

On April 1, 1989, Anthony Wynn was robbed and shot dead in the hallway of a Flatbush apartment building. In connection therewith, the defendant was charged with two counts of murder in the second degree, as well as robbery in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a concealed weapon in the third degree. The defendant was tried before a jury in December 1989. At trial, Colleen Campbell, a witness who had seen the fleeing assailant, testified pursuant to a subpoena served by the defense. During the police investigation, Campbell had described the assailant as approximately 19 years old and approximately 5' 7? tall. The defendant is six feet tall, and, at the time of this incident, was 34 years old. At trial, Campbell testified that while she knew the defendant for “[a]bout three years or more,” she could not tell whether the defendant was the person she saw fleeing. Campbell testified that she had “barely glimpsed the person, [and] didn't look” because “she was scared.” The defendant was convicted of two counts of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. The defendant remains incarcerated.

In 2008, the defendant moved to vacate the judgment pursuant to CPL 440.10, seeking a new trial pursuant to CPL 440.10(1)(g), or to vacate the judgment based on actual innocence. In support of the motion, the defendant submitted affidavits from Trevor Brown and Colleen Campbell.

According to his affidavit, in 2001, Brown became a “key cooperating witness” in a federal investigation of the activities of the “Patio Crew,” a “violent Jamaican gang that controlled” the Flatbush neighborhood where the homicide occurred, and had testified against Emile Dixon, the “leader” of the Patio Crew. Defense counsel asserted that, in the course of an investigation of Dixon and other Patio Crew members by the Federal Bureau of Investigation, “Brown [had] told federal authorities during a June 2001 proffer session that another member of the Patio Crew, Paul Gary Watson, a.k.a. ‘Pablo,’ committed the murder of Anthony Wynn for which the defendant was wrongfully convicted.” According to the defendant's counsel, Brown “state[d] that he was present when Watson planned to rob Wynn and that Watson returned to Brown's apartment immediately after the murder where Watson confessed to Brown that he killed Wynn ... in the course of the planned robbery.” The defendant's counsel argued that “Watson, unlike [the defendant], matches the description provided to the police on the day of the murder by Colleen Campbell ... who saw the assailant run past her moments after the occurrence.”

Campbell stated in her affidavit that the defendant was not the fleeing assailant whom she had seen. Campbell also stated that she had been afraid to testify as an eyewitness at the trial, due to her fear of the “real” perpetrator.

The Supreme Court conducted a full evidentiary hearing on the motion for a new trial based upon the aforementioned newly discovered evidence. At the hearing, Brown testified to the alleged facts of Watson's confession, as set forth in Brown's affidavit. Campbell testified that the defendant was not the fleeing assailant involved in this incident, but that she had been afraid to exonerate the defendant at trial due to her fear of neighborhood gang members, namely, those affiliated with the Patio Crew. Campbell also testified that she had initially told the police that the perpetrator was not the defendant, but that she had been pressured by police or prosecutors to provide “vague” testimony at trial. Campbell testified that the police and/or prosecutors had threatened to “take away” her children if she did not cooperate with them.

During the hearing, the defendant moved to amend his motion to include the affidavit or testimony of Dexter Bailey. Bailey submitted an affidavit in which he stated that J.T. Dixon had confessed to having taken part in the robbery and murder of Wynn along with Watson. Bailey, another gang member who had also cooperated with the federal investigation of the Patio Crew, had not previously divulged this information to the prosecution. The Supreme Court denied the defendant's motion to include Bailey's testimony.

Following the evidentiary hearing, the Supreme Court denied the defendant's motion pursuant to CPL 440.10. The Supreme Court found, inter alia, that Brown's testimony with respect to Watson's alleged confession would not qualify as a statement against penal interest, as it was not established that Watson was unavailable, and there were insufficient indicia that Brown's testimony was reliable. The Supreme Court also found the testimony of Colleen Campbell to be inconsistent and not credible. Thus, the Supreme Court concluded that the evidence adduced at the hearing did not warrant a new trial. We disagree.

A motion to vacate a judgment of conviction upon the ground of newly discovered evidence rests within the discretion of the hearing court ( see People v. Salemi, 309 N.Y. 208, 215, 128 N.E.2d 377,cert. denied350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;People v. Tankleff, 49 A.D.3d 160, 178, 848 N.Y.S.2d 286). The “court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial” ( People v. Bellamy, 84 A.D.3d 1260, 1261, 923 N.Y.S.2d 681;seeCPL 440.10[1][g] ). In order to justify such vacatur, the evidence must fulfill all the following requirements: “ ‘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’ ” ( People v. Salemi, 309 N.Y. at 216, 128 N.E.2d 377, quoting People v. Priori, 164 N.Y. 459, 472, 58 N.E. 668;seeCPL 440.10[1][g]; see also People v. Malik, 81 A.D.3d 981, 917 N.Y.S.2d 648).

The Supreme Court erred in concluding that the proffered testimony of Brown as to Watson's alleged confession could not be considered in support of the defendant's motion for a new trial under CPL 440.10(1)(g) ( see People v. Ortiz, 81 A.D.3d 513, 514, 917 N.Y.S.2d 161;People v. Toussaint, 74 A.D.3d 846, 846, 902 N.Y.S.2d 165;People v. Washington, 31 A.D.3d 795, 818 N.Y.S.2d 620). “[B]efore statements of a nontestifying third party are admissible as a declaration against penal interest, the proponent must satisfy the court that four prerequisites are met: (1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds; (2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest; (3) the...