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The PEOPLE of the State of New York, Respondent, v. James T. NELSON, Appellant.
MEMORANDUM AND ORDER
In 2001, defendant was charged with assault in the first degree, assault in the second degree, criminal possession of a weapon in the third degree and promoting prison contraband in the first degree for allegedly cutting the arm of the victim – Howard Smith – with a razor blade during an inmate altercation in the library at the Albany County Correctional Facility and for thereafter being found with a razor blade in his rectum. Following a jury trial, which included testimony from both Smith and defendant, defendant was found guilty as charged. He was thereafter sentenced to a prison term of 20 years for the crime of assault in the first degree, followed by five years of postrelease supervision, and to lesser concurrent terms on the remaining convictions. Upon defendant's direct appeal, in which he raised a claim of ineffective assistance of counsel, this Court affirmed the judgment of conviction (1 A.D.3d 796, 798, 767 N.Y.S.2d 512 , lv denied 1 N.Y.3d 631, 777 N.Y.S.2d 30, 808 N.E.2d 1289  ).
Nearly 15 years after his conviction, defendant moved, pursuant to CPL 440.10(1)(g) and (h), for an order vacating the judgment of conviction on the grounds of ineffective assistance of counsel, actual innocence and newly discovered evidence. Supreme Court denied that aspect of defendant's motion seeking to vacate his conviction on the basis of ineffective assistance of counsel without conducting a hearing. As for defendant's claim of actual innocence and the alleged newly discovered evidence, Supreme Court determined that an evidentiary hearing was necessary, but, after that hearing, concluded that it was improbable that the newly discovered evidence would produce a more favorable verdict for defendant at a new trial. By permission of this Court, defendant now appeals.
Defendant first challenges Supreme Court's denial of his motion to vacate his judgment of conviction based upon actual innocence and newly discovered evidence. To warrant a new trial based upon newly discovered evidence, the defendant bears the burden of establishing, by a preponderance of the evidence (see CPL 440.30 ), that, among other things, the newly discovered evidence is of such a character that it would probably, not merely possibly, change the result upon retrial (see CPL 440.10; People v. Backus, 129 A.D.3d 1621, 1623, 14 N.Y.S.3d 241 , lv denied 27 N.Y.3d 991, 38 N.Y.S.3d 102, 59 N.E.3d 1214 ; People v. Penoyer, 135 A.D.2d 42, 44, 523 N.Y.S.2d 672 , affd 72 N.Y.2d 936, 532 N.Y.S.2d 843, 529 N.E.2d 173  ). The newly discovered evidence offered by defendant here included Smith's recantation of his trial testimony identifying defendant as his assailant, as well as the confession of Keshon Everett, an inmate who, although allegedly present during the altercation, did not testify at trial and who came forward many years later to claim that he was actually the person who cut Smith's arm.
With respect to recantation evidence, the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false (see People v. Avery, 80 A.D.3d 982, 985, 915 N.Y.S.2d 356 , lv denied 17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094 ; People v. Tucker, 40 A.D.3d 1213, 1214, 834 N.Y.S.2d 590 , lv denied 9 N.Y.3d 882, 842 N.Y.S.2d 794, 874 N.E.2d 761  ). Recantation testimony has long been considered “an extremely unreliable form of evidence” (People v. Tucker, 40 A.D.3d at 1214, 834 N.Y.S.2d 590; see e.g. People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733 ; People v. Lane, 100 A.D.3d 1540, 1541, 954 N.Y.S.2d 363 , lv denied 20 N.Y.3d 1063, 962 N.Y.S.2d 613, 985 N.E.2d 923  ). Thus, in assessing the credibility of recantation testimony, courts consider a variety of factors, including “(1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” (People v. Wong, 11 A.D.3d 724, 725–726, 784 N.Y.S.2d 158 ; see People v. Shilitano, 218 N.Y. at 170–172, 112 N.E. 733; People v. Simmons, 20 A.D.3d 813, 815, 799 N.Y.S.2d 311 , lv denied 6 N.Y.3d 758, 810 N.Y.S.2d 426, 843 N.E.2d 1166  ). “The credibility determination[s] of the hearing court, with its particular advantages of having seen and heard the witnesses, [are] entitled to great deference on appeal and will not be disturbed unless clearly erroneous” (People v. Britton, 49 A.D.3d 893, 894, 853 N.Y.S.2d 897  [citations omitted], lv denied 10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446 ; accord People v. Davidson, 150 A.D.3d 1142, 1143–1144, 55 N.Y.S.3d 357 , lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215  ).
Our review and comparison of testimony received at the 2001 trial and the 2016 hearing, as well as affidavits written by Smith and Everett prior to the hearing, confirm Supreme Court's conclusion that Smith's recantation and Everett's confession were riddled with inconsistencies that undermined the overall reliability of their accounts. Initially, since his attack, Smith has offered several different sworn versions of events. At the hearing, some 15 years after the attack, Smith stated for the first time that Everett 1 was his assailant and that he had seen Everett remove a razor blade from the pages of a book. Such testimony stood in stark contrast to Smith's earlier trial testimony, during which he unequivocally identified defendant as the person who cut him and testified that defendant had removed the razor blade from his mouth prior to the assault. Smith's hearing testimony also differed from statements that he had made in his 2013 and 2015 affidavits.
Additionally, with the exception of Everett's identity as the assailant, the testimony given by Smith and Everett at the hearing differed in nearly all other material respects. For example, in conflict with Smith's testimony that Everett had retrieved the razor blade from a book, Everett testified that he took the blade out of his mouth. Significantly, both Everett's and Smith's hearing testimony was contradicted by defendant's trial testimony that Smith had actually been the one to wield a razor blade and that Smith had cut himself (see People v. Avery, 80 A.D.3d at 985, 915 N.Y.S.2d 356). Further, aside from a library sign-in sheet 2 allegedly indicating Everett's presence in the library during the altercation, not one trial witness named Everett as being present and involved in the fight. Moreover, Everett's testimony that he stashed the razor blade in a book after cutting Smith was called into doubt by trial evidence establishing that the library, including every book, had been searched by 30 correction officers in the wake of the attack and that a razor blade had not been found.
The hearing evidence also provided a basis for concluding that Everett and Smith each had a motive to lie and an opportunity to coordinate their false accounts. The evidence established that Everett is currently serving a sentence of life in prison, without the possibility of parole, for murdering a police officer. Everett testified to having a 20–year friendship with defendant, and Smith testified that, at the time of the attack, he knew defendant and Everett to be members of the Bloods gang. As Supreme Court observed, Everett's life sentence and long friendship with defendant, which included being codefendants in a federal cocaine distribution prosecution, presented a situation in which Everett had “nothing to lose” for falsely confessing to the crime to help his friend (People v. Feliciano, 240 A.D.2d 256, 257, 658 N.Y.S.2d 307 , lv denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1389  ).
Further, with respect to Smith's potential motive to lie, Smith acknowledged at the hearing that Everett sent him a sworn confession to the crime, dated February 26, 2013. Two months later, Smith signed his first affidavit stating that defendant had not been his attacker. Smith offered differing explanations in his hearing testimony and in his affidavits as to why he lied in his 2001 testimony. Given the curious timing of Smith's and Everett's respective affidavits and Smith's inability to cogently explain why he lied, it would not be unreasonable to conclude that some reason other than an altruistic change of heart led to Smith's recantation of his trial testimony. As Supreme Court further recognized, neither Everett nor Smith offered persuasive explanations for their extensive delays in coming forward with evidence that could exonerate defendant. Finally, the evidence established that there was a brief period of time in 2012 when Everett and defendant were incarcerated in the same state correctional facility. In light of all of the foregoing circumstances and considering that Supreme Court had the opportunity to hear and observe the testimony of Smith and Everett at the hearing (see People v. Penoyer, 135 A.D.2d at 44, 523 N.Y.S.2d 672), we find no basis upon which to disturb Supreme Court's determination that Smith's recantation and Everett's confession were not credible and, thus, “highly unlikely” to result in a more favorable verdict for defendant if he were granted a retrial (see People v. Simmons, 20 A.D.3d at 815, 799 N.Y.S.2d 311; People v. Greene, 150 A.D.2d 604, 605, 541 N.Y.S.2d 472 , lv denied 74 N.Y.2d 847, 546 N.Y.S.2d 1012, 546 N.E.2d 195 ; compare People v. Wong, 11 A.D.3d at 726–727, 784 N.Y.S.2d 158).
Defendant also argues that Supreme Court erred in summarily denying that aspect of his CPL 440.10 motion based on ineffective assistance of counsel. Defendant faults his trial counsel for stipulating that the victim sustained a serious physical injury, an element of assault in the first degree (see Penal Law § 120.10 ), and for failing to preserve various issues and adequately cross-examine a particular witness. These alleged errors, however, were apparent from the record and, thus, could have been raised as part of the ineffective assistance of counsel claim that defendant already made on his direct appeal (see CPL 440.10[c]; People v. Leader, 116 A.D.3d 1239, 1239–1240, 983 N.Y.S.2d 737 , lvs denied 24 N.Y.3d 1045, 1046, 998 N.Y.S.2d 315, 316, 23 N.E.3d 158, 159 ; People v. Jones, 101 A.D.3d 1482, 1483, 956 N.Y.S.2d 703 , lv denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395  ). Defendant further criticizes his trial counsel for failing to secure Everett as a trial witness. To the extent that this claimed error can be characterized as involving matters appearing both on the record and outside the record, defendant did not offer sworn allegations of fact concerning counsel's alleged deficiencies that would justify a hearing on the issue (see CPL 440.30[d]; People v. Leader, 116 A.D.3d at 1240, 983 N.Y.S.2d 737; People v. Jones, 101 A.D.3d at 1483, 956 N.Y.S.2d 703). Accordingly, Supreme Court properly denied that aspect of defendant's motion based upon ineffective assistance of counsel without first conducting a hearing.
ORDERED that the order is affirmed.
1. Significantly, Smith testified throughout the hearing that an individual named “Jayblack” was his assailant. It was not until pressed by the prosecution on cross-examination that Smith hesitantly acknowledged that “Jayblack” was his own nickname for Everett, who was otherwise known as “Keeblack.”
2. The sign-in sheet, which was admitted into evidence at the hearing, includes Everett's name at the bottom of the list, but there is no time associated with his entry into the library, unlike every other inmate's name.
Egan Jr., J.P., Mulvey, Devine and Aarons, JJ., concur.
Response sent, thank you
Docket No: 109311
Decided: April 04, 2019
Court: Supreme Court, Appellate Division, Third Department, New York.
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