People v. Mosley

• Decision Date: 02 November 2017
• Citation: 155 A.D.3d 1124,64 N.Y.S.3d 707
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael MOSLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1124
64 N.Y.S.3d 707

The PEOPLE of the State of New York, Respondent,
v.
Michael MOSLEY, Appellant.

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

Nov. 2, 2017.

64 N.Y.S.3d 709

Mitch Kessler, Cohoes, for appellant, and appellant pro se.

Joel E. Abelove, District Attorney, Troy (Vincent J. O'Neill of counsel), for respondent.

Before: EGAN JR., J.P., LYNCH, ROSE and MULVEY, JJ.

LYNCH, J.

155 A.D.3d 1124

Appeal, by permission, from an order of the County Court of Rensselaer County (Ceresia, J.), entered April 19, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of murder in the

64 N.Y.S.3d 710

first degree and burglary in the first degree, after a hearing.

Following a three-week jury trial held in May 2011, defendant was convicted of murder in the first degree and burglary in the first degree in connection with the January 2002 deaths of Arica Schneider and Sam Holley. The victims were stabbed multiple times while in their apartment in the City of Troy, Rensselaer County. Two other individuals, Terrence Battiste and Bryan Berry, were initially charged with the murders, but their indictments were dismissed without prejudice when defendant's DNA was matched to blood found at the crime scene.

155 A.D.3d 1125

At trial, defendant did not dispute that his DNA—derived from a blood stain found on the victims' bed sheet—and palm print were discovered at the crime scene. After hearing evidence from, among others, the medical examiner, an expert serologist, crime scene analyst and meteorologist, the jury rejected defendant's explanation that he discovered the victims' bodies the morning after they had been murdered, that he was bleeding from a hand injury he suffered while snowboarding the evening before at a gorge located in Troy, and that his blood transferred onto the victims' bedsheet as he attempted to move the mattress to retrieve a hidden cell phone.

Following the verdict, defendant moved, pursuant to CPL 440.10(1)(g) and (h), for an order vacating his conviction on the grounds of ineffective assistance of counsel and actual innocence. County Court (Young, J.) denied the motion without a hearing. Upon his direct appeal from the judgment of conviction and, by permission, from the order denying his CPL 440.10 motion, we affirmed the judgment ( 121 A.D.3d 1169, 994 N.Y.S.2d 429 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ), but reversed the order that summarily denied the motion, finding that defendant raised sufficient evidence to warrant a hearing and remitted the matter accordingly ( id. at 1173–1174, 994 N.Y.S.2d 429 ). After an eight-day hearing, County Court (Ceresia, J.) denied defendant's CPL 440.10 motion, and, with this Court's permission, defendant now appeals.

In People v. Hamilton, 115 A.D.3d 12, 979 N.Y.S.2d 97 (2014), the Second Department determined that a claim of actual innocence must be established with clear and convincing evidence of "factual innocence, not mere legal insufficiency of evidence of guilt and must be based upon reliable evidence which was not presented at the trial" ( id. at 23, 979 N.Y.S.2d 97 [internal citation omitted]; accord People v. Maxwell, 152 A.D.3d 622, 622–623, 59 N.Y.S.3d 71 [2017] ; see People v. Thibodeau, 151 A.D.3d 1548, 1556, 56 N.Y.S.3d 669 [2017] ; compare People v. Beckingham, 116 A.D.3d 1298, 1299, 984 N.Y.S.2d 240 [2014] ). While we recognize that in People v. Caldavado, 26 N.Y.3d 1034, 22 N.Y.S.3d 159, 43 N.E.3d 369 (2015) the Court of Appeals opted not to determine whether a freestanding claim of actual innocence is viable ( id. at 1037, 22 N.Y.S.3d 159, 43 N.E.3d 369 ), we concur with the analysis set forth in Hamilton and find that such a claim may be raised pursuant CPL 440.10(1)(h) (see People v. Hamilton, 115 A.D.3d at 26, 979 N.Y.S.2d 97 ).

At the hearing, defendant repeated his explanation with regard to the presence of his DNA and palm print at the crime scene. Further, defendant's wife (then girlfriend), who did not testify at the trial, confirmed that she observed and treated defendant's injured hand when he returned home from snowboarding the evening before the murders. Defendant also offered

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testimony by Terry Labor, a forensic scientist, and Stephen Wistar, a forensic meteorologist. Labor testified that the

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blood stain on the bed sheet was transferred to the sheet through contact with an existing wound, a finding consistent with defendant's explanation and contrary to the People's blood drop theory that defendant was cut during the murders. Labor also opined that the palm print would not have been a discernibly different color if it had been made when the victims were murdered or when defendant ostensibly entered the apartment the following morning—a point contrary to the People's argument that the color of the palm print showed that it was made at the time of the murders. Wistar testified that based on his review of the weather data and the topography and location of the area where defendant claimed to be snowboarding, there was some snow present at the gorge during the time that defendant claimed he was injured. Defendant also presented testimony by a witness who claimed that he had been incarcerated with Battiste in 2005 and that Battiste spoke to him about details of the victims' murders and admitted that he was the driver the night they were murdered.

In our view, the evidence submitted at the hearing failed to establish by clear and convincing evidence that defendant did not murder the victims. Much of the evidence presented at the hearing was also presented to the jury, which considered and rejected defendant's explanation, and the jury's verdict was upheld on appeal (see People v. Beckingham, 116 A.D.3d at 1299, 984 N.Y.S.2d 240 ). At best, the additional evidence submitted in support of the motion to vacate arguably raised "[m]ere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt," neither of which is sufficient to support a motion to vacate a judgment based on actual innocence ( People v. Hamilton, 115 A.D.3d at 27, 979 N.Y.S.2d 97 ; see People v. Maxwell, 152 A.D.3d at 623, 59 N.Y.S.3d 71 ). Accordingly, we find that County Court properly declined to vacate defendant's conviction pursuant to CPL 440.10(1)(h) based on actual innocence.

Defendant also argues that County Court should have vacated the judgment of conviction based on ineffective assistance of counsel. Specifically, defendant claims that trial counsel failed to obtain and present expert forensic testimony, such as Labor's, that would have countered the People's theory that defendant was injured during the course of murdering the victims and supported defendant's explanation with regard to how his DNA and palm print were found at the scene. Defendant also faults counsel for failing to produce a weather expert, such as Wistar, to counter the opinion of the People's expert

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that there was not enough snow to snowboard in the gorge the evening prior to the murders. Defendant further contends that trial counsel should have allowed his wife to testify and should have objected when the People used defendant's prearrest statements to the police, questioned him about his tattoo and compared an old photograph of defendant to a photograph of another person purportedly seen outside of the victims' apartment the evening of the murders. Finally, defendant claims that trial counsel failed to put forth a viable defense based on the culpability of Battiste and Berry.

A criminal defendant's right to the effective assistance of counsel is guaranteed by both the Federal and State Constitutions (see U.S. Const, 6th Amend; NY Const, art I, § 6 ). To determine whether a defendant received effective assistance, we consider whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation"

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( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; accord People v. Speaks, 28 N.Y.3d 990, 992, 42 N.Y.S.3d 644, 65 N.E.3d 673 [2016] ; People v. Cassala, 130 A.D.3d 1252, 1253, 15 N.Y.S.3d 479 [2015], lv. denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016] ). The test is "reasonable competence, not perfect representation" ( People v. Oathout, ...