People v. Diguglielmo, 2008 NY Slip Op 51938(U) (N.Y. Dist. Ct. 9/17/2008)
| Decision Date | 17 September 2008 |
| Docket Number | 96-1403 |
| Citation | 2008 NY Slip Op 51938 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, v. RICHARD DIGUGLIELMO, Defendant. |
| Court | New York District Court |
Defendant has moved this Court for an order pursuant to New York Criminal Procedure Law §440.10 vacating his judgment of conviction or, in the alternative, reducing his conviction to Manslaughter in the Second Degree1 .
On October 3, 1996, Defendant, an off-duty police officer, fatally shot the victim, Charles Campbell following an altercation between, inter alia, Mr. Campbell and Defendant's father in the parking lot of a deli owned by the elder DiGuglielmo . After a jury trial, Defendant was convicted of depraved indifference murder (Penal Law § 125.25(2)); on December 19, 1997, Defendant was sentenced to an indeterminate term of imprisonment of twenty (20) years to life in prison.2
Pursuant to his conviction, Defendant filed an appeal to the Appellate Division, Second Department. The Second Department, on February 16, 1999 affirmed Defendant's conviction, holding that "the defense of justification was disproved beyond a reasonable doubt" and upon exercising their factual review power, the Appellate Division held that the verdict was not against the weight of the evidence.3 People v. DiGuglielmo, 258 AD2d 591, 686 NYS2d 443 (2nd Dep't 1999). Defendant sought leave to appeal his conviction to the Court of Appeals, but such leave was denied. People v. DiGuglielmo, 93 NY2d 923, 715 NE2d 510, 693 NYS2d 507 (1999). Subsequently, Defendant filed a writ of habeas corpus in the United States District Court for the Southern District of New York, which was dismissed.4 On June 3, 2002, the United States Court of Appeals, Second Circuit, held that Defendant failed to exhaust his state remedies and dismissed Defendant's petition. DiGuglielmo v. Senkowski, 42 Fed.Appx. 492 (2002). On November 4, 2002, Defendant filed a petition for a writ of error coram nobis to vacate his conviction arguing ineffective assistance of appellate counsel; the Appellate Division, Second Department, denied Defendant's application. People v. DiGuglielmo, 299 AD2d 365, 749 NYS2d 180 (2nd Dep't 2002). On March 18, 2003, Defendant's application for leave to appeal to the Court of Appeals was denied. People v. DiGuglielmo, 99 NY2d 627, 790 NE2d 283, 760 NYS2d 109 (2003). Defendant then filed a Writ of Habeas Corpus in federal court, but his petition was denied by the Southern District of New York; Defendant again appealed. On April 28, 2004 the United States Court of Appeals, Second Circuit, affirmed the District Court's decision denying Defendant's Writ of Habeus Corpus.On February 9, 2004, Defendant filed a motion to vacate his judgment of conviction pursuant to C.P.L. § 440.10(1)(h). Defendant argued that he was entitled to vacatur of his conviction on several grounds:
(I) that the trial evidence was insufficient to sustain his conviction for depraved indifference murder; and
(II) that his conviction could not be sustained given the newly authored Court of Appeals decisions in People v. Payne, 3 NY3d 266, 819 NE2d 634 (2004) and People v. Gonzalez, 1 NY3d 464, 807 NE2d 273 (2004) which should be applied retroactively to Defendant's case.
The Hon. Joseph Alessandro denied Defendant's C.P.L. § 440 motion in its entirety finding that a challenge to the sufficiency of evidence presented at trial was not proper under C.P.L. § 440.10; that legal sufficiency questions are only applied retroactively to cases pending on direct appeal and that the new line of cases cited by Defendant did not represent a new rule or legal standard deserving of retroactivity, rather the cases merely "construed the words of the statute."
After lengthy appellate review and post-conviction applications and proceedings, Defendant has now filed a motion pursuant to C.P.L. § 440.10, seeking vacatur of his judgment of conviction, or in the alternative, a reduction of his depraved indifference murder conviction charge to Manslaughter in the Second Degree.5 Specifically, Defendant seeks vacatur of his conviction alleging that he is entitled to such relief as a matter of law because, as a result of more recent jurisprudence, the Court of Appeals has enunciated a new standard of review (though it has actually clarified the existing standard of review) for depraved indifference convictions, specifically regarding the sufficiency of evidence in such cases.
On November 9, 2006, Defendant filed a supplemental motion with the Court. In his supplemental motion, Defendant sought vacatur of his conviction alleging that in October 2006 Defendant learned of the existence of newly discovered evidence as defined in C.P.L. §440.10; specifically, that two witnesses claimed that their statements were audiotaped by Dobbs Ferry Police (hereinafter "DFPD"), and that such audiotapes were never turned over to Defendant's counsel. Defendant also learned for the first time that these witnesses claimed that they were subjected to repeated police interrogations as well as other improper efforts by the DFPD in an effort to have them change the initial statements that they had given to the DFPD, in ways that would be unfavorable to Defendant and favorable to the prosecution. Defendant's Notice of Motion, dated November 9, 2006, affirmation by Brian M. Willen, Esq., p. 2. Defendant included as Exhibits 1 and 2, two statements from the two witnesses, Michael Dillon and James White. These witness statements were written by Thomas Duno, an investigator hired by Defendant, but were signed by each witness.
On November 30, 2006, the People filed an Affirmation in Opposition; the People opposed Defendant's motion in its entirety. After several off-the record conferences and communications between defense counsel, the People and the Court, oral arguments were scheduled for July 25, 2007.
On July 25, 2007, after extensive oral arguments, the Court granted a hearing for the limited purpose of determining whether any Rosario violations had occurred as alleged by Defendant and to determine what, if any, undue influence was exerted upon Mr. Dillon by the DFPD in connection with statements he gave to said officers, and to what extent such undue and improper influence actually impacted the statements that he gave to law enforcement. The Court however, denied Defendant's request to expand the hearing to address whether there were any errors during jury selection. Initially, the Court also denied Defendant's request to have James White testify at the hearing, as Mr. White did not testify at the original trial.
Defendant seeks vacatur of his judgment of conviction asserting the following6:
1) that a new standard regarding review of depraved indifference convictions was established by the Court of Appeals decisions in People v. Suarez, 6 NY3d 202, 811 NYS2d 267 (2005) and People v. Feingold, 7 NY3d 288, 819 NYS2d 691 (2006), and thus, should be applied to Defendant's case, retroactively or otherwise;
2) that Defendant's due process rights were violated under the United States and New York State Constitutions by being convicted on evidence legally insufficient to establish the elements of depraved indifference murder, especially as recently set forth under new Court of Appeals precedent;
3) that a sworn juror was convicted of a crime, however, that information was not disclosed during jury selection and thus, a vacatur of Defendant's judgment of conviction is warranted.
4) that two eyewitnesses alleged that they were subjected to improper and prejudicial conduct on the part of law enforcement and the People and thus, vacatur of Defendant's conviction is warranted pursuant to C.P.L. § 440.10(1)(g); and
5) that the two eyewitnesses claimed that their statements were audiotaped by police and said recordings were never turned over to Defendant warranting vacatur as the People's failure to turn over these materials violates the dictates of Rosario and/or Brady.
I. Defendant alleges that a new standard of review was established by the Court of Appeals decisions in People v. Suarez, People v. Feingold, et al. and thus, he was convicted on legally insufficient evidence to establish the elements of depraved indifference murder or, in the alternative, that the new standard should be applied retroactively.
On September 25, 2006, Defendant filed the instant motion seeking to have his judgment of conviction vacated. Defendant argues that he is entitled to the relief sought because the Court of Appeals established a new standard of review with its recent line of decisions rendered in People v. Hafeez, 100 NY2d 253, 792 NE2d 1060 (2003), People v. Gonzalez, 1 NY3d 464, 807 NE2d 273 (2004), People v. Payne, 3 NY3d 266, 819 NE2d 634 (2004), People v. Suarez, 6 NY3d 202, 811 NYS2d 267 (2005), People v. Feingold,7 NY3d 288, 819 NYS2d 691 (2006) and ultimately Policano v. Herbert, 7 NY3d 588, 825 NYS2d 678 (2006) (hereinafter "line of cases"). Defendant alleges that the aforementioned line of cases establishes that he was convicted upon legally insufficient evidence, that is, evidence insufficient to establish the elements of depraved indifference murder. Defendant contends that since his conviction occurred prior to Court of Appeals' holdings in the new line of cases, any new standards or principles should be applied retroactively to grant him the relief established in the line of cases discussed herein a vacatur of his conviction.
It is Defendant's contention that the aforementioned line of cases decided by the Court of Appeals between 2003 and 2006, specifically Suarez and Feingold, created a recognizable change in the controlling law, entitling him to relief, retroactive or otherwise. Defendant's request to have the principles of Suarez and Feingold, (which begin with Hafeez, and ultimately end with Policano) apply retroactively is misplaced. Retroactivity goes hand-in-hand with a change in the law relative to key issues in a...
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