People v. Velazquez

• Decision Date: 08 September 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Jon–Adrian VELAZQUEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 126

37 N.Y.S.3d 481

2016 N.Y. Slip Op. 05961

The PEOPLE of the State of New York, Respondent,

v.Jon–Adrian VELAZQUEZ, Defendant–Appellant.

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

Sept. 8, 2016.

Gottlieb & Gordon LLP, New York (Robert C. Gottlieb, Celia Gordon and Justin Heinrich of counsel), for Appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hilary Hassler and Christopher P. Marinelli of counsel), for Respondent.

ANGELA M. MAZZARELLI, J.P., RICHARD T. ANDRIAS, DAVID B. SAXE, KARLA MOSKOWITZ, MARCY L. KAHN, JJ.

ANDRIAS, J.

Asserting, inter alia, that two of the four eyewitnesses who testified against him at trial have recanted their identifications and that the other two have expressed doubts, and that a newly discovered witness claimed that another person confessed to the crime to her, defendant moved pursuant to CPL 440.10(1)(g) and (h) to vacate his conviction for second-degree murder and lesser offenses based on newly discovered evidence, ineffective assistance of trial counsel and actual innocence. On the extensive record before us, we find that the summary denial of defendant's motion was proper.

Defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ). When his submissions are carefully analyzed, it is clear that they do not raise a probability that the outcome of the trial would have been different if the newly discovered evidence had been introduced, and that the possibility of his actual innocence is far too remote to warrant a hearing (see People v. Griffin, 120 A.D.3d 1257, 991 N.Y.S.2d 896 [2d Dept.2014], lv. denied 24 N.Y.3d 1120, 3 N.Y.S.3d 761, 27 N.E.3d 475 [2015] ; People v. Woods, 120 A.D.3d 595, 990 N.Y.S.2d 827 [2d Dept.2014], lv. denied 24 N.Y.3d 1090, 1 N.Y.S.3d 17, 25 N.E.3d 354 [2014] ). Only one of the two recanting witnesses signed an affidavit; the other refused to swear to his recantation. The two other eyewitnesses, including one who had extensive interactions with defendant shortly before and during the robbery, firmly stood by their identifications. Defendant also failed to present any evidence to support or explain the purported confession, and the person who purportedly confessed denied that he ever made it and offered to take “tests” to prove it. More importantly, the People proved the confession to be highly improbable through compelling and unrefuted documentary and other evidence that the person who allegedly confessed was on a fish processing boat off the Alaskan coast at the time of the murder and, most tellingly, that he had a large facial scar and a heavy accent, characteristics that were not included in any of the descriptions of the shooter given by the eyewitnesses.

Defendant and codefendant Derry Daniels were charged with first-degree murder and related offenses arising out of the shooting death of Albert Ward, a retired police officer, during a January 27, 1998 robbery of the gambling club Ward operated in Harlem. Although the police received various hearsay-based tips that the crime had been committed by others, including “Mustafa” and “Shaq,” defendant was identified as the shooter by eyewitness Augustus Brown, after he viewed hundreds of photographs shown to him by the police. Thereafter, Brown and three other witnesses, Ricky Jones, Lorenzo Woodford and Phillip Jones, all of whom were in the club at the time of the robbery, positively identified defendant as the shooter in separate lineups. At two other lineups, Phillip Jones and Brown identified Daniels as defendant's accomplice.

On September 30, 1999, Daniels pleaded guilty to first-degree robbery in return for a promised sentence of 12 years. During his allocution, Daniel stated that he planned the robbery with defendant, that his role was to duct tape club patrons, and that defendant was the gunman who shot someone he was trying to tape. However, there was no cooperation agreement and Daniels did not agree to testify against defendant.

Defendant maintained his innocence and his case proceeded to a jury trial at which Ricky Jones, Woodford, Brown, and Phillip Jones, all identified him as Ward's killer. Defendant presented interrelated misidentification and alibi defenses, asserting that, at around the time of the shooting, he was at his girlfriend's home, engaged in a 74–minute telephone conversation with his mother. The jury acquitted defendant of murder in the first degree and convicted him of murder in the second degree, attempted murder in the second degree, robbery in the first degree (three counts), and attempted robbery in the first degree. On March 7, 2000, defendant was sentenced to an aggregate term of 25 years to life.

In 2004, this Court affirmed defendant's conviction on appeal, finding, inter alia, that there was no basis to disturb the identifications made by the four eyewitnesses and that the jury properly rejected defendant's alibi defense (13 A.D.3d 184, 785 N.Y.S.2d 914 [1st Dept.2004], lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330 [2005] ). In 2007, based on a careful evaluation of the trial evidence, defendant's petition for a writ of habeas corpus was denied by the Honorable Denny Chin, then of the United States District Court for the Southern District of New York, who found, inter alia, that the testimony of the four eyewitnesses firmly established that they had ample opportunity to examine the gunman's features during the robbery and to confirm his identity in a properly conducted lineup (see Velazquez v. Fischer, 524 F.Supp.2d 443 [S.D.N.Y.2007] ). Judge Chin also noted that “nothing about the circumstances of the eyewitnesses' identification of [defendant] renders their testimony unreasonable or unbelievable” (id. at 449 ).

In October 2011, defendant's counsel asked the New York County District Attorney's Conviction Integrity Program to review his conviction, questioning the reliability of the eyewitnesses who had identified defendant and claiming that several of them had recanted their identifications to varying degrees. Without any concrete evidence, counsel also proposed “PT,” who had previously used the nickname “Mustafa,” as an alternative suspect for Ward's murder. Subsequently, defendant's counsel named “Moustapha D.” as Ward's killer, based on a confession he allegedly made to a woman in Washington State, and abandoned their claims related to PT.

On February 12, 2012, NBC broadcast an episode of the program “Dateline” about defendant's case, which featured excerpts of interviews of Brown and Phillip Jones, who appeared to recant their identifications of defendant. Excerpts of interviews with Woodford, designed to cast doubt on his identification, were also shown.

After thoroughly investigating the case, the People informed defendant that they would not consent to the vacatur of the judgment. The People's investigation found that neither PT nor Moustapha D. could have killed Ward and that defendant's claim that Ricky Jones and Woodford had recanted their trial testimony was inaccurate. In fact, they firmly stood by their original identifications. Moreover, Brown's recantations were marked by inconsistencies and he refused to sign a sworn statement. While Phillip Jones had signed an affidavit for a defense investigator, he stated in two subsequent interviews with the People that he had correctly identified defendant at trial and denied knowingly signing the affidavit. With respect to the polygraph reports submitted in support of defendant's alibi defense, an investigator from the New York County District Attorney's Office, who is a certified polygraphist, opined that the report relating to defendant's mother based on heart monitoring was largely unreadable due to a physical condition or ailment, and that her breathing pattern potentially indicated an attempt to manipulate the test results. As to the report of defendant's charts, the investigator deemed it “inconclusive.”

On May 1, 2013, defendant moved pursuant to CPL 440.10(1)(g) and (h) to vacate the conviction based on newly discovered evidence, ineffective assistance of trial counsel and actual innocence. The new evidence included: (i) the recantations by Brown and Phillip Jones; (ii) the alleged equivocation by Woodford and Ricky Jones regarding their identifications of defendant; (iii) an affidavit, dated October 7, 2012, by “DK” of Kent, Washington, stating, inter alia, that she had known Moustapha D. for about three years, and that about a year and a half earlier, he told her that he had shot and killed a retired “cop” in New York City and that “someone else was doing his time”; and (iv) statements made by the codefendant's brother indicating that his brother never met defendant. Defendant argued, inter alia, that this evidence, along with the identification process used by the police in this case, rendered the trial identifications highly unreliable and insufficient to support the guilty verdict, especially in the absence of any other evidence connecting him to the murder, the alibi defense and the tips that the crime had been committed by others, including Mustafa and Shaq.

There is no merit to defendant's ineffective assistance claim. Defense counsel's alleged deficiencies were tactical choices that could have been made by a reasonably competent attorney. Defense counsel cross-examined the People's witnesses about their opportunity to view the robbers and purported discrepancies between the descriptions provided to the police following the murder and those given at trial; about the circumstances of the lineup identifications; about whether the police pressured the witnesses to cooperate or fed them information about the crime; and, where applicable, about the witnesses' criminal histories and use of controlled substances. Defense counsel also presented testimony in support of defendant's alibi defense and from police detectives about descriptions of the gunman provided by various witnesses in the...