PEOPLE v. STETIN (2021)

MEMORANDUM AND ORDER

Appeals, by permission, from two orders of the County Court of Montgomery County (Catena, J.), entered November 20, 2019 and February 28, 2019, which denied defendant's motions pursuant to CPL 440.10 to vacate a judgment convicting him of the crimes of burglary in the second degree and assault in the second degree, without a hearing.

After a jury trial in July 2017, defendant was found guilty of burglary in the second degree and assault in the second degree stemming from an incident in September 2016 in which defendant allegedly broke into the residence of his then-girlfriend and physically assaulted her.  After an unsuccessful motion pursuant to CPL 330.30(1) to set aside the verdict, defendant was sentenced to an aggregate term of four years in prison followed by five years of postrelease supervision.  His conviction was later affirmed by this Court on appeal (167 A.D.3d 1245, 90 N.Y.S.3d 353 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 609, 121 N.E.3d 236 [2019]).  In February 2019, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10(d), (g) and (h) on the grounds that he was denied the effective assistance of counsel and that newly discovered evidence was disclosed after entry of the judgment of conviction that would have resulted in a more favorable verdict.  County Court denied this motion without a hearing.  In October 2019, defendant moved again to vacate the judgment of conviction pursuant to CPL 440.10(g) and (h) on the grounds that additional newly discovered evidence was disclosed after entry of the judgment of conviction that would have resulted in a more favorable verdict and that he was actually innocent.  County Court also denied this motion without a hearing.  This Court granted defendant permission to appeal both orders.

Defendant seeks relief under CPL 440.10 based upon ineffective assistance of counsel.  Although the majority of these claims were properly rejected by County Court as the alleged deficiencies were raised and decided upon direct appeal (167 A.D.3d at 1249–1251, 90 N.Y.S.3d 353), we agree with defendant that the court erred in denying, without a hearing, defendant's remaining claim of ineffective assistance based upon trial counsel's failure to conduct a proper investigation with respect to defendant's residence.

“To establish ineffective assistance, a defendant must demonstrate the absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct” (People v. Mosley, 121 A.D.3d 1169, 1173–1174, 994 N.Y.S.2d 429 [2014] [internal quotation marks, brackets and citations omitted], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014];  see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]).  As to the failure to investigate, defendant alleges that a proper investigation by trial counsel would have established that he lived at the victim's residence and, thus, on the evidence presented at trial, he could not have entered unlawfully, a necessary element of burglary in the second degree.  Defendant avers, in his sworn affidavit, that he repeatedly advised his trial counsel that the victim's allegation that defendant did not live with her at the time of the incident was false and that this false claim could be easily disproven, but trial counsel “was not interested and did nothing.”  Defendant supported this claim with four sworn affidavits of witnesses who all stated that defendant lived with the victim at the time of the incident.  These affidavits were not merely conclusory, but rather contained factual allegations based upon firsthand observations by the witnesses (compare People v. Spradlin, 188 A.D.3d 1454, 1460–1461, 136 N.Y.S.3d 517 [2020];  People v. Blanford, 179 A.D.3d 1388, 1394, 118 N.Y.S.3d 294 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020]).  We find that defendant “provided sufficient sworn, material statements in support of his motion that, if credited, would establish that he received less than meaningful representation” (People v. Sposito, 140 A.D.3d 1308, 1312–1313, 32 N.Y.S.3d 736 [2016], affd 30 N.Y.3d 1110, 70 N.Y.S.3d 156, 93 N.E.3d 881 [2018];  see People v. Cruz, 152 A.D.3d 822, 825, 57 N.Y.S.3d 753 [2017], lv denied 30 N.Y.3d 1018, 70 N.Y.S.3d 451, 93 N.E.3d 1215 [2017]).

County Court also erred in denying, without a hearing, defendant's claim that he is entitled to have the judgment of conviction vacated based upon newly discovered evidence, specifically, affidavits of three witnesses that the victim recanted her testimony.  The court found that this recantation evidence was merely impeachment evidence, contradictory to eyewitness testimony and “inherently suspect.”  “A judgment of conviction may be vacated if the defendant shows that the newly discovered evidence fulfills all the following requirements:  (1) it must be such as will probably change the result if a new trial is granted;  (2) it must have been discovered since the trial;  (3) it must be such as could have not been discovered before the trial by the exercise of due diligence;  (4) it must be material to the issue;  (5) it must not be cumulative to the former issue;  and (6) it must not be merely impeaching or contradicting the former evidence” (People v. Werkheiser, 171 A.D.3d 1297, 1303–1304, 98 N.Y.S.3d 345 [2019] [internal quotation marks, brackets and citations omitted], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019];  see People v. Shaw, 174 A.D.3d 1036, 1037–1038, 103 N.Y.S.3d 701 [2019], lv dismissed 34 N.Y.3d 1081, 116 N.Y.S.3d 164, 139 N.E.3d 822 [2019]).  As relevant here, “[w]ith 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” (People v. Nelson, 171 A.D.3d 1251, 1253, 97 N.Y.S.3d 779 [2019];  see People v. Avery, 80 A.D.3d 982, 985, 915 N.Y.S.2d 356 [2011], lv denied 17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094 [2011]).  “Consideration of recantation evidence involves the following factors:  (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 [the] defendant as related to a motive to lie” (People v. Wong, 11 A.D.3d 724, 725–726, 784 N.Y.S.2d 158 [2004], citing People v. Shilitano, 218 N.Y. 161, 170–172, 112 N.E. 733 [1916]).

In support of these claims, defendant proffered three separate affidavits from witnesses, as well as text messages purportedly from the victim, asserting that they established that the victim had fabricated the allegations against him.  One of these witnesses, in a sworn affidavit, averred that she was friends with the victim and even attended the trial.  This witness stated that, in June 2018, she was at the victim's apartment – which was the same apartment where the incident occurred – when the victim was texting and calling defendant.  This same night, the victim told the witness that she lied to the police and in court because she was “mad at [defendant] over his constant complaining about [the victim's] drinking,” that “none of the abuse” occurred and that she was afraid that her family would be mad if they learned that she lied.  This witness averred that she subsequently stopped associating with the victim after several more conversations during which the victim admitted to fabricating the whole story.  Another affidavit was proffered from an employee at a used car lot where the victim test drove a vehicle in the summer of 2017.  During the test drive, after the employee asked the victim about her last name, she told the employee that it was her ex-husband's name and that he was very abusive and had recently broken her shoulder, an injury that she had attributed to defendant at trial.  Another witness averred that one night, in May 2019, he saw the victim and when he told her that he did not believe that defendant harmed her, the victim said that she could not tell the truth for fear of going to prison.

Contrary to County Court's determination, we do not find that the evidence of the victim's recantations is “merely impeachment” evidence such that it does not constitute newly discovered evidence (see generally People v. Salemi, 309 N.Y. 208, 215–216, 128 N.E.2d 377 [1955], cert denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 [1956]).  Indeed, “[e]vidence of recantation upon the part of a witness is not merely evidence which tends to impeach or discredit a witness.  Its character is more fundamental.  If the recantation be true it may in certain cases destroy the basis upon which the judgment of conviction rests” (People v. Shilitano, 218 N.Y. at 170, 112 N.E. 733;  see generally People v. Hargrove, 162 A.D.3d 25, 58–60, 75 N.Y.S.3d 551 [2018]).  Although we are mindful that recantation testimony is “inherently unreliable” (People v. Riddick, 136 A.D.3d 1124, 1124, 24 N.Y.S.3d 456 [2016], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016]), the “totality of the circumstances” presented here demonstrates that a hearing is required to scrutinize the circumstances regarding the recantations as well as the credibility of the witnesses, and to create a record (People v. Jenkins, 84 A.D.3d 1403, 1407, 923 N.Y.S.2d 706 [2011], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012];  see e. g. People v. Krivak, 168 A.D.3d 979, 982, 92 N.Y.S.3d 110 [2019];  People v. Beach, 186 A.D.2d 935, 936, 589 N.Y.S.2d 626 [1992];  compare People v. Beckingham, 116 A.D.3d 1298, 1299, 984 N.Y.S.2d 240 [2014]).

Although County Court pointed to “eyewitness” testimony at trial that controverts the alleged recantations, this mischaracterizes the trial testimony.  There was testimony from the victim's mother, who arrived after the attack, which placed defendant in the victim's home and described the victim's condition after the attack, but the victim's mother did not witness the actual attack (167 A.D.3d at 1246–1248, 90 N.Y.S.3d 353).  Thus, the information set forth in the witnesses’ affidavits regarding the victim's recantations have not been “conclusively refuted by unquestionable documentary proof or contradicted by a court record or other official document and it cannot be said that there is no reasonable possibility that [it is] true” (People v. Beach, 186 A.D.2d at 936, 589 N.Y.S.2d 626 [internal citations omitted];  see CPL 440.30[4][c], [d][i], [ii]).  Moreover, the victim's alleged statement to the used car lot employee that her ex-husband broke her shoulder was not contradicted by the evidence at trial.  To the contrary, the victim refused medical attention the night of the incident, instead waiting more than three weeks to seek medical attention for her fractured left clavicle (167 A.D.3d at 1247, 90 N.Y.S.3d 353).  Additionally, there was testimony at trial that the victim was observed carrying two 18 packs of beer shortly after the incident occurred (167 A.D.3d at 1247, 90 N.Y.S.3d 353).  Accordingly, County Court “was not permitted to reject the affidavit[s] as facially incredible;  rather, an evidentiary hearing should have been conducted” (People v. Beach, 186 A.D.2d at 936, 589 N.Y.S.2d 626;  see CPL 440.30[4], [5];  People v. Krivak, 168 A.D.3d at 982, 92 N.Y.S.3d 110).  Following the hearing, County Court “will be in a position to ‘make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial’ ” (People v. Krivak, 168 A.D.3d at 982, 92 N.Y.S.3d 110, quoting People v. Bellamy, 84 A.D.3d 1260, 1261, 923 N.Y.S.2d 681 [2011], lv denied 17 N.Y.3d 813, 929 N.Y.S.2d 802, 954 N.E.2d 93 [2011]).

We reach this same conclusion as to defendant's claim of actual innocence.  The sworn affidavits of the three witnesses to the victim's alleged recantations were sufficient to establish a “prima facie showing of actual innocence sufficient to warrant a hearing on the merits” (People v. Pottinger, 156 A.D.3d 1379, 1381, 67 N.Y.S.3d 746 [2017];  compare People v. Beckingham, 116 A.D.3d 1298, 1299, 984 N.Y.S.2d 240 [2014]).

ORDERED that the orders are reversed, on the law, and matter remitted to the County Court of Montgomery County for a hearing pursuant to CPL 440.30(5).

Pritzker, J.

Garry, P.J., Egan Jr., Reynolds Fitzgerald and Colangelo, JJ., concur.