People v. De Oliveira

• Decision Date: 04 January 1996
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose De OLIVEIRA Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 441

636 N.Y.S.2d 441

223 A.D.2d 766

The PEOPLE of the State of New York, Respondent, v. Jose De OLIVEIRA Jr., Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 4, 1996.

John J. Gannon, Buffalo, for appellant.

Robert J. Simpson, District Attorney, Owego, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Appeal, by permission, from an order of the County Court of Tioga County (Sgueglia, J.), entered November 18, 1994, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of murder in the second degree, after a hearing.

In 1984, defendant was convicted of murder in the second degree (see, Penal Law § 125.25[1] ) for the intentional strangulation of his wife (hereinafter decedent), which occurred on the morning of September 10, 1983; he was sentenced to serve 25 years to life in prison. Defendant appealed the conviction on a number of grounds, and this court affirmed (116 A.D.2d 770, 496 N.Y.S.2d 834, lv. denied 67 N.Y.2d 882, 501 N.Y.S.2d 1033, 492 N.E.2d 1240). The facts underlying the conviction are fully set forth in our previous memorandum.

In 1987, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, arguing that he was refused the right to appear before the Grand Jury and did not receive effective assistance of counsel. County Court rejected these arguments and permission to appeal was denied. Thereafter, in September 1991, defendant sought discovery of certain physical evidence, including vaginal smears and swabs, hairs and decedent's underwear, in preparation for a second CPL 440.10 motion; he maintained that if DNA testing were to show that decedent had sexual intercourse with another man prior to her death, this would prove that defendant was not the murderer. The motion was denied, as was defendant's subsequent request for permission to appeal.

Defendant has again moved to vacate the judgment of conviction, this time contending, inter alia, that DNA testing should be ordered, pursuant to CPL 440.30(1-a), because it could result in the discovery of material evidence demonstrating his innocence, and that his due process and equal protection rights were violated by the prosecution's failure to disclose material and exculpatory evidence, which was only recently discovered by defendant's current counsel. This motion was denied by County Court on the ground that all of the issues raised therein had been previously decided. Defendant now appeals by permission.

A few of defendant's arguments merit comment. With respect to his request for DNA testing, defendant's contention that his discovery motion was denied because of an erroneous finding that the evidence was no longer available is belied by the record. Indeed, County Court explicitly found that such testing, even if it were to exclude defendant as the depositor of the semen, would not be probative in this case, and we agree. The evidence established that decedent left defendant's presence at approximately 1:00 A.M. on the morning that she met her death, and that she drove by her boyfriend's apartment at 4:00 A.M., apparently looking for a sexual liaison, and was rebuffed. It is the People's theory that she was killed shortly thereafter, at about 5:00 A.M. Defendant reasons that there would not have been sufficient time for her to have had sexual relations with another person after leaving her paramour and then been strangled by defendant, as the prosecution contends. This argument is flawed, however, for even if the testing were to reveal the presence of semen from another man, it could not be determined when that semen was deposited: after 4:00 A.M., as defendant asserts; earlier that morning (during the period from 1:00 A.M. to 4:00 A.M., when decedent's whereabouts were unknown); or, as observed by defendant's expert, perhaps even days before her death.

Moreover, it is undisputed that decedent was sexually active at about the time of her murder, there was no evidence that the killing was part of a sexual encounter and, importantly, there was no critical testimony that could be seriously impeached by the test results. Under these circumstances, County Court did not err in finding it improbable that the results of DNA testing would have any effect on the verdict, were a new trial to be held (compare, Matter of Washpon v. New York State Dist. Attorney, Kings County, 164 Misc.2d 991, 997, 625 N.Y.S.2d 874; Matter of Dabbs v. Vergari, 149 Misc.2d 844, 848-849, 570 N.Y.S.2d 765; cf., Yorke v. State, 315 Md. 578, 589-590, 556 A.2d 230, 235-236).

Nor is there force to defendant's assertion, which does not appear to have been raised earlier, that he was prejudiced by the prosecutor's failure to provide his trial attorney with...