People v. Jimenez

• Decision Date: 21 July 2016
• Citation: 2016 N.Y. Slip Op. 05620,142 A.D.3d 149,37 N.Y.S.3d 225
• Parties: The PEOPLE of the State of New York, Respondent, v. Ricardo JIMENEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 149

37 N.Y.S.3d 225

2016 N.Y. Slip Op. 05620

The PEOPLE of the State of New York, Respondent,

v.Ricardo JIMENEZ, Defendant–Appellant.

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

July 21, 2016.

Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia Heeger, Rosemary M. Herbert and Anant Kumar of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy and Joseph N. Ferdenzi of counsel), for respondent.

ANGELA M. MAZZARELLI, J.P., ROLANDO T. ACOSTA, KARLA MOSKOWITZ, ROSALYN H. RICHTER, JJ.

MAZZARELLI, J.P.

Sean Worrell was shot and killed in a Bronx movie theater in July 1989. Defendant was arrested shortly after the shooting based on a police interview with Esco Blaylock, a teenager who claimed to have witnessed the shooting, but he was released after Blaylock stopped cooperating with the authorities. After that, the case went cold and remained that way for nearly 10 years. The investigation was revived after Andrew O'Brien, who was serving a 30–year federal sentence for his involvement in a murderous drug gang, told FBI agents who were interviewing him in connection with their ongoing investigation of the gang that he was with Worrell when Worrell was killed, and was prepared to assist in bringing the perpetrator to justice. O'Brien was eventually contacted by a New York City police detective from the cold case squad, who, based on the information he gathered from O'Brien, reopened the case. Defendant was rearrested in August 2006.

At trial, both Blaylock and O'Brien testified that they saw defendant argue with Worrell on the popcorn line, exit the movie theater, and then, minutes later, return with a gun to shoot Worrell in one of the auditoriums. Blaylock, who was working at the concession stand on the night of the homicide, recognized the shooter as “Leon,” a person he knew from the neighborhood and saw regularly. He testified that he recalled describing “Leon” to the police on the day of the incident as a light skinned man who “appeared to be black,” with a flat top haircut and a gold cap on a tooth. Indeed, the detective who originally investigated the homicide (retired by the time of trial), confirmed that a DD–5 report he prepared on the date of the shooting, after having interviewed Blaylock, noted that Blaylock had described the perpetrator as a male black who appeared Puerto Rican and could mimic a Jamaican accent. Another witness who testified at trial was Mike Centeno, who was stationed as a security guard near the concession stand on the night of the shooting. Centeno testified that he saw a person with “light-skin like myself” come running out of an auditorium holding a gun after shots were heard inside the same room. Centeno described himself as “Spanish,” but also stated that he “assumed” the shooter was a “[l]ight-skinned [b]lack person.” Detective Michael Serrano testified that the DD–5 he prepared in connection with his interview of Centeno immediately after the shooting memorialized Centeno's having told him that the person he saw fleeing the auditorium was a black male of dark complexion.

Another witness who testified at trial was Kevin Morrissey. Morrissey testified that he became acquainted with defendant in 2006 when they were housed in the same jail. Morrissey had a paralegal certificate and fashioned himself a jailhouse lawyer. He stated that defendant approached him for help with his case, and that in doing so he volunteered that he had shot someone at a Bronx movie theater after getting into an argument with that person. Morrissey acknowledged that the reason he was in jail was because on five separate occasions he had attempted to purchase cars using phony checks and that it would be fair to characterize him as a professional con man.

Defendant was convicted of second-degree murder and sentenced to a term of 22 years to life. On direct appeal to this Court, he argued that the verdict was against the weight of the evidence, that the court erred in denying his request for a justification charge, that the prosecutor made improper remarks in summation, that his constitutional speedy trial rights were violated, and that the sentence was excessive. This Court unanimously affirmed defendant's conviction (71 A.D.3d 483, 896 N.Y.S.2d 69 [1st Dept.2010] ), lv. denied 15 N.Y.3d 752, 906 N.Y.S.2d 824, 933 N.E.2d 223 (2010), observing, with respect to the weight of the evidence:

“Two witnesses (one of whom was acquainted with defendant) having no connection with each other identified the same person and gave essentially similar accounts of the incident. Moreover, defendant's confession to an informant contained significant details that confirmed the informant's credibility” (71 A.D.3d at 483, 896 N.Y.S.2d 69 ).

This appeal is from the denial of defendant's motion to vacate his conviction pursuant to CPL 440.10. The grounds for vacatur were actual innocence, failure to turn over exculpatory and impeachment material pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), prosecutorial misconduct, and ineffective assistance of counsel. The actual innocence claim was based on the statements of two people who claimed to have been in the movie theater on the night Worrell was killed but who did not testify. Defendant claims that both witnesses told an investigator hired by appellate counsel that the person who shot Worrell either had brown or black skin, and that defendant, whose photograph they were shown, was not that man. Defendant complained of multiple Brady violations based on the prosecution's failure to turn over materials that he claimed would have significantly assisted his trial counsel in impeaching the People's witnesses. For example, he presented documents that he claimed demonstrated that O'Brien had been promised that the United States Attorney's Office that prosecuted him for his gang involvement would seek a reduction of his 30–year sentence in exchange for his cooperation against defendant. He also claimed that the prosecution should have disclosed Morrissey's involvement in several federal trials, which would have revealed that he had a history of serious mental illness and that he had acted as an informant in the past. Additionally, defendant contended that Morrissey and O'Brien had significant criminal histories beyond what had been disclosed to him before trial. He also argued that several significant documents relating to the police investigation were either not turned over at all or were not produced to the defense until the eve of trial or during jury selection.

The prosecutorial misconduct claim was based on the District Attorney's allegedly having allowed trial witnesses to offer false testimony at trial. Finally, defendant asserted that his trial counsel was ineffective because he failed to seek dismissal of the indictment based on the 17 years that had passed between the homicide and the filing of charges; failed to properly handle a suppression hearing; failed to cross-examine O'Brien and Blaylock on certain prior inconsistent statements; failed to call certain witnesses; failed to argue that Worrell had actually been killed by his own friends' “friendly fire”; and failed to move for a mistrial when the prosecutor misstated certain facts.

Supreme Court denied defendant's motion without a hearing. Even assuming that CPL 440 permits a free-standing actual innocence claim based on evidence other than DNA, the court stated, the proffered witness statements did not “deviate from the description provided by all of the eyewitnesses to the argument and the shooting: that the shooter spoke with a Jamaican accent and had brown skin.” As to defendant's Brady claim, the court concluded that the additional impeachment evidence pertaining to Morrissey and O'Brien was cumulative of whatever had been disclosed and that any failure by the prosecution to turn over material was not willful. The court also held that certain information that defendant asserted was exculpatory or impeachment material could have been discovered independently by him based on material that was disclosed. With respect to Morrissey's mental condition, the court credited the prosecutor's statement in an affirmation that she met with Morrissey on several occasions and had no reason to believe he had any mental issues. The court also found that there was no evidence that defendant could point to that would suggest that the People had agreed to help O'Brien seek a reduction in his sentence, and that evidence related to O'Brien's unrelated racketeering and conspiracy case was collateral to defendant's case. Finally, the court determined that defendant's claims of prosecutorial misconduct were conclusory and that he had received the effective assistance of counsel.

In People v. Hamilton , 115 A.D.3d 12, 979 N.Y.S.2d 97 (2d Dept.2014), the Second Department recognized a freestanding claim of actual innocence as a ground on which a defendant may challenge his conviction under CPL 400.10(1)(h). That section provides for vacatur of a judgment of conviction that “was obtained in violation of a right of the defendant under the constitution of this state or of the United States.”

The Hamilton court reasoned that,

“[s]ince a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution,” and also “violates the provision of the New York Constitution which prohibits cruel and unusual punishments” (115 A.D.3d at 26, 979 N.Y.S.2d 97 ).

We agree with the Second Department that CPL 440.10(1)(h) embraces a claim of actual innocence. If depriving a defendant of an opportunity to prove that he or she has not committed a crime for which he or she has been convicted is not a “violation...