People v. Irizarry
| Decision Date | 07 August 2014 |
| Parties | The PEOPLE of the State of New York v. Christopher IRIZARRY, Defendant. |
| Court | New York County Court |
991 N.Y.S.2d 748
The PEOPLE of the State of New York
v.
Christopher IRIZARRY, Defendant.
County Court, Westchester County, New York.
Aug. 7, 2014.
Janet DiFiore, Westchester County District Attorney, White Plains.
A.D.A. Julia Cornachio, A.D.A. Lisa Denig, Irving Cohen, Esq., New York, Attorney for Defendant.
DAVID S. ZUCKERMAN, J.
Recent media reports have depicted numerous prisoners being exonerated after many years of incarceration.1 Often, the exonerations turn on newly discovered evidence, DNA examinations, misidentifications, and/or witness recantations. The instant Defendant has been incarcerated for 15 years and asserts that he, too, was wrongfully convicted. He seeks post-judgment relief on two grounds: that he is actually innocent of the crimes charged and that he has obtained newly discovered evidence which would have changed the result had it been presented at his trial.
PROCEDURAL HISTORY
On February 19, 1998, the Westchester County Grand Jury voted a true bill charging the defendant with seven crimes:
1. Burglary in the First Degree (P.L. § 140.30[4] ),
2. Robbery in the First Degree (P.L. § 160.15[4] ),
3. Robbery in the First Degree (P.L. § 160.15[4] ),
4. Robbery in the Second Degree (P.L. § 160.10[1] ),
5. Robbery in the Second Degree (P.L. § 160.10[1] ),
6. Grand Larceny in the Fourth Degree (P.L. § 155.30[1] ), and
7. Grand Larceny in the Fourth Degree (P.L. § 155.30[1] ).
The charges arose from an incident which occurred on December 1, 1997, at approximately 7:00 p.m., in Yonkers, N.Y. The Indictment alleged that the defendant had acted in concert with two unapprehended others to burglarize and rob Dembo Ceesay (hereinafter "Ceesay") and his wife, Juanita Lamb (hereinafter "Lamb").
On February 20, 1998, in Westchester County Court, the defendant was arraigned on the Indictment. He pled not guilty.
Defendant's trial began on September 2, 1998, and concluded on September 15, 1998. He was convicted on each of the first five counts.2 On October 29, 1998, after his C.P.L. § 330.30 was denied, Defendant
was sentenced to twenty years incarceration on the first three counts and fifteen years incarceration on counts four and five with all five sentences to be served concurrently.
In November, 2001, Defendant filed his direct appeal to the Appellate Division, Second Department, raising three basic arguments: ineffective assistance of counsel, failure of the trial court to give an alibi charge, and failure of the court to bar testimony from one prosecution witness. On October 28, 2002, the Second Department affirmed Defendant's conviction finding that trial counsel's representation on the whole was effective, that the lack of an alibi charge was unpreserved, and that the objection to the prosecution testimony was without merit. People v. Irizarry, 298 A.D.2d 600, 748 N.Y.S.2d 689 (2nd Dept.2002). Four months later, the Court of Appeals denied Defendant's application for leave to appeal. People v. Irizarry, 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172 (2003).
In March, 2002, while his direct appeal was pending, Defendant filed a C.P.L. Article 440 motion arguing ineffective assistance of counsel. That motion was denied in April, 2002, based in part on the then-pendency of the defendant's direct appeal. In an unreported decision dated June 21, 2002, leave to appeal the denial of that C.P.L. Article 440 motion was denied. People v. Irizarry, Appellate Division, 2nd Dept., Adams, J., June 21, 2002, Docket No. 2002–04281.
In 2004, Defendant filed a petition for habeas corpus, pursuant to 28 USC § 2254, in the United States District Court for the Southern District of New York. In this action, Defendant again argued that he was denied effective assistance of counsel and was prejudiced by the absence of an alibi charge. In August, 2004, the petition, and Defendant's application for a Certificate of Appealability, were denied. Irizarry v. Conway, U.S. Dist. Ct., S.D.N.Y., 03 Civ. 8637, Brient, J., 2004. In 2005, his petition for leave to appeal to the Second Circuit Court of Appeals was likewise denied. Irizarry v. Conway, U.S. Ct.Ap., 2nd Cir., 04–5076, 2005.
In September, 2012, Defendant, now represented by new counsel, moved again pursuant to C.P.L. Article 440 for an Order vacating his conviction. He asserted two bases for relief: newly discovered evidence and actual innocence. The newly discovered evidence includes his assertion that another person, Jason Brown ("Brown"), had recently admitted to committing the 1997 burglary/robbery. Annexed to the moving papers is an affidavit from Brown in which he swears that Defendant was not present at any time during the crime. Also annexed to the moving papers is a notarized statement from John Clark (hereinafter "Clark") asserting that, at all times relevant to the burglary/robbery, he was with the defendant in the latter's apartment. The prosecution, responding in November, 2012, argued the irrelevance of some of the proffered new evidence, but conceded that a C.P.L. Article 440 hearing on the issue of newly discovered evidence was warranted. Thereafter, another judge of this court ordered a C.P.L. Article 440 hearing solely on the issue of newly discovered evidence.
While the instant motion was pending before another court, the People filed a motion in limine to prohibit Defendant from calling Clark as a witness at the hearing. The People argued that Clark's alibi testimony should be precluded because, since trial counsel was aware of this information and chose not to call Clark as a trial witness, the testimony does not qualify as newly discovered evidence under
C.P.L. Article 440.3
Defendant made two arguments in response:
1. At the time of Defendant's trial, Clark had been indicted for an unrelated drug charge and, therefore, was unavailable to testify. Now, Clark has no such restriction and, Defendant
argued, his testimony should qualify as newly discovered evidence4 ; and
2. Defendant's C.P.L. Article 440 motion also seeks relief for actual innocence. Therefore, Clark's testimony is admissible at the hearing for that purpose.
The People responded that trial counsel's failure to call Clark as an alibi witness at trial was a tactical decision based upon his then pending drug indictment. Notably, the People did not argue that Clark's alibi testimony should be precluded in the event that the court entertained Defendant's actual innocence claim.
Subsequently, the case was transferred to this court. Prior to commencement of the previously ordered Article 440 hearing, the Appellate Division, Second Department decided People v. Hamilton, 115 A.D.3d 12, 979 N.Y.S.2d 97 (2nd Dept.2014). Hamilton was the first New York State appellate decision recognizing post-judgment relief for a freestanding assertion of actual innocence.5
On January 31, 2014, this court issued a Decision and Order partially granting the People's motion in limine. In it, the court precluded Clark from testifying in connection with Defendant's C.P.L. Article 440 motion for newly discovered evidence. Relying in large part on Hamilton, however, the court permitted Clark to testify in support of Defendant's claim of actual innocence.
THE HEARING
1. Burdens of Proof
Although another court had previously granted Defendant's request for a C.P.L. Article 440 hearing to determine his claim of newly discovered evidence, in the wake of Hamilton, this court expanded the hearing to include Defendant's claim of actual innocence. Although both claims are grounded in C.P.L. § 440.10, the burdens of proof and remedies are different.
As discussed supra, New York State appellate courts did not recognize post-judgment relief for freestanding actual innocence claims until the January 15, 2014 Second Department decision in Hamilton.6 Prior to that, a handful of trial level courts had recognized freestanding actual innocence claims but none had granted relief on those grounds. See e.g., People v. Cole, 1 Misc.3d 531, 765 N.Y.S.2d 477 (Sup.Ct., Kings County 2003). Thus, other than
Hamilton, there is no appellate guidance applicable to hearings for post-judgement actual innocence claims.
In Hamilton, the court held that, to prevail on an actual innocence claim, the defendant must prove innocence by clear and convincing evidence. If the defendant prevails, the remedy is for the hearing court to dismiss the indictment. See C.P.L. § 440.10(4). Significantly, the Hamilton court added that "[a]t the hearing, all reliable evidence ... should be admitted." People v. Hamilton, supra at 27, 979 N.Y.S.2d 97 (emphasis added).
In contrast, for a claim of newly discovered evidence, the defendant shoulders a lower burden of proof-a preponderance of the evidence. C.P.L. § 440.30(6). The seminal case for determining the existence of newly discovered evidence is People v. Salemi, 309 N.Y. 208, 128 N.E.2d 377 (1955) cert. den. 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 (1956). In Salemi, the Court identified six factors which must be present to justify vacatur of a judgment based on newly-discovered evidence:
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... ... Hamilton at 23 citing Schlup v. Delo, 513 U.S. 298, 324 (1995) To prevail on a claim of this nature, the burden is on defendant to establish his claim of actual innocence by clear and convincing evidence. see Ibid. at 27 ; People v. Irizarry, 991 N.Y.S.2d 748 (Westchester Cty. Ct.2014) To be sufficient, clear and convincing evidence must establish that the claim asserted is highly probable ... see Irizarry at 761, quoting Home Ins. Co. of Ind.v. Karantonis, 156 A.D.2d 844, 550 N.Y.S.2d 77 (3rd Dept.1989) ; Ausch v. St. Paul ... ...