Defendant is currently serving a prison term of twenty-five years to life, having been convicted of Murder in the Second Degree for shooting and killing Cesar Vasquez on the evening of July 16, 1991. Defendant and his co-defendant were convicted after a jury trial based on identifications made by a single eye witness, P.D. D., a woman with a lengthy psychiatric history, the details of which were largely unknown to defendant at the time of trial, testified that she looked out her fourth floor window at midnight and saw defendant and two other men with guns approach her building. As she ran downstairs she heard five gunshots and saw the back of the men as they left the scene. Although her fourteen year old son, G, was out on the street and witnessed the shooting, he was never called as a witness at trial.A New York Drug Crime Lawyer said the People did not present any physical evidence, motive evidence or any other evidence to corroborate Denor’s identification of defendant as one of the shooters.
D, a complete stranger to both defendants, has now recanted her trial testimony, claiming that she lied when she testified that she saw the faces of the shooters and identified them. A Nassau Criminal Lawyer said that, she now claims that she did not actually see and could not have seen the faces of the shooters and that she identified defendant based only on her observation of a photograph of him that she saw in the investigating detective’s car. Denor states that she falsely identified defendant out of a strong desire to protect her son, whom she believed was being threatened by detective Pezullo and whom she did not want to testify.
A Queens Criminal Lawyer said that, defendant moves to vacate his conviction pursuant to CPL §440.10 based primarily on Denor’s recantation. He argues that her recantation is newly discovered evidence that is credible and reliable and that if known at trial would have created the probability of a more favorable verdict to defendant.
The issue in this case is whether defendant is entitled to his motion vacate his conviction pursuant to CPL §440.10 based primarily on Denor’s recantation.
Defendant advances several claims of newly discovered evidence and argues that each is a basis to vacate the judgment pursuant to CPL §440.10(1)(g). The Court held that, to be considered newly discovered evidence, the purported new evidence must be of such character to create a probability that the verdict would have been more favorable to defendant if it had been received at trial. The evidence must also have been discovered since the trial and could not have been discovered before trial with due diligence. And finally, the evidence must be material to an issue at trial, not cumulative, and not merely impeachment testimony. Defendant bears the burden of proving, by a preponderance of the evidence, that the evidence satisfies each of the statutory criteria to be considered newly discovered.
The new evidence alleged by defendant falls into five categories: Denor’s recantation of her trial testimony identifying defendant as a shooter; the testimony of Garey, who witnessed the shooting, was never called at trial and testified that defendant was not one of the shooters; video evidence of the view from Denor’s apartment window; alibi evidence supporting Garcia’s presence in the Dominican Republican on the day of the shooting; and an alleged Brady violation concerning Denor’s identification of a third person who was eliminated as a suspect. All of the evidence proffered by defense severely undermines Denor’s identification of defendant as one of the gunmen.
The court finds that defendant has met his burden of proving by a preponderance of the evidence that Denor’s recantation constitutes newly discovered evidence in that it would probably have resulted in a more favorable verdict had it been admitted at trial. The court finds that Garey’s exculpation of defendant, the alibi evidence, the video evidence, and the Brady violation, while not constituting newly discovered evidence and providing independent bases for vacate, each provide strong corroboration for Denor’s recantation of her identification.
Denor has fully recanted her identification of defendant as one of the gunmen and now emphatically states that she did not see, and could not have seen, the shooters from her fourth floor apartment window. In determining whether the recantation is a basis to vacate defendant’s conviction, the court must conduct a careful analysis of whether the recantation is both reliable and credible. The court is well aware that recantation testimony is an extremely and inherently unreliable form of evidence that must be scrutinized with extreme care. If true, however, a recantation may “destroy the basis upon which the judgment of conviction rests.”
In evaluating the credibility of a recantation, the court must assess six factors: (1) the inherent believability of the substance of the recantation, (2) the witness’s demeanor at trial and at the evidentiary hearing, (3) the existence of evidence to corroborate the trial testimony, (4) the reasons offered for the trial testimony and the recantation, (5) the importance of trial facts as confirmed by the recantation, and (6) any relationship between the recanting witness and defendant that would suggest a motive to lie.
In undertaking an evaluation of the hearing evidence, it is obvious that Denor and Pezzullo gave conflicting testimony regarding a number of critical facts. The court is mindful that all the witnesses testified to events that happened eighteen to twenty years ago. It is not surprising and, in fact, is to be expected, that there are inconsistencies both between witnesses and with the witnesses’ 1992 testimony. The issue is whether the inconsistencies are based on memory failures or untruths, and how significant they are to whether Denor’s recantation is credible.
An evaluation of Denor’s overall credibility must also take into account her lengthy psychiatric history and what effect it has on her present testimony. The People argue that Denor is the same witness she was in 1991, that is, a difficult witness and a troubled person who has continuously been on medication that helps her cope with the many difficulties she has faced in her life, including abuse and serious medical issues. Denor’s psychiatric records from 1993 showed a diagnosis of depression with psychotic features and a prescription for thorazine, a strong anti-psychotic drug. The most recent records reveal a diagnosis of generalized anxiety and panic disorder. It notes that her major depressive disorder is in full remission. Her current medications are anti-depressants. There is no current history of delusions or psychotic features. Psychiatric notes show Denor as having achieved relative stability, despite her strokes and diagnosis of cancer. The court does not credit Denor’s testimony in its entirety. Denor claimed that when she failed initially to identify defendant at trial, over the lunch break Zelenka told her that she “had to identify the two defendants,” that he said, “the one with the long hair,” and this was done before buying her lunch. Instead, the court credits Zelenka’s testimony that he told Denor that he could not speak to her over the lunch break because she was under cross-examination, and that all he did was to remind her to tell the truth. He testified that it was a common practice at the time for the District Attorney’s Office to buy lunch for their witnesses. The fact that he did not tell her to identify defendant in court is borne out by the manner in which Denor identified defendant after lunch which was in a frustrated response to defense counsel’s questioning.
While the court does not credit Denor’s testimony in its entirety, on the critical issue of whether she lied in identifying defendant as one of the shooters, the court believes her. The fervor and emotion with which Denor testified about her need to protect her son, especially in light of the abuse he suffered, and her own troubled history, lends credence to her explanation of why she lied and falsely identified defendant in 1991. The court finds Denor’s pleas for forgiveness, and expressions of guilt and remorse, compelling.
On the Recantation Factors:
(1) The Inherent Believability of the Substance of the Recantation. As the court noted earlier, while there are significant inconsistencies in Denor’s testimony that may have some bearing on her overall credibility, inconsistencies alone are not “sufficient to require that her testimony as a whole be considered incredible.” Nor do they diminish the inherent believability of the substance of her recantation that she lied in identifying defendant as one of the shooters. That she could not see the gunmen’s faces is inherently believable based on the undisputed facts of how far Denor was from the gunmen, the angle at which she perceived the street, the time of night, and the mere seconds she had to view the shooters. In fact, on the critical issue of whether she correctly identified defendant as one of the shooters, she fervently and adamantly testified that she did not, and her testimony never wavered.
The People argue that while Denor is not necessarily lying, her recantation has changed the facts to match her current truth. In fact, these inconsistencies may represent nothing more than an inability to recall certain details due to the passage of time, her declining health, or a deteriorating mental condition. Regardless, the court again notes that there are two factors that strongly support the inherent believability of the substance of the recantation. Denor has no motive to lie, and her recantation is corroborated by other evidence received at trial and at the 440 hearing. Based on the foregoing, the court finds the recantation inherently believable.
(2) The Witness’s Demeanor at Trial and at the Evidentiary Hearing. Because this court did not preside over the trial, the court must rely on the trial and Wade hearing transcripts, and the recollection of trial counsel, to assess Denor’s demeanor at trial. Based on these transcripts and the current recollections of trial counsel, it appears that Denor was an emotional witness at trial, although it is difficult to gauge whether this was due to her personality or the combative and aggressive nature of cross-examination. The transcript from the Wade hearing establishes that Denor started crying on at least one occasion, and that Garcia’s counsel specifically made a record of her demeanor and noted that she started crying for no apparent reason on direct-examination, that her demeanor had been “vacant,” and that she appeared to be unstable. Zelenka testified that Denor had several outbursts in front of the jury where she broke down on cross-examination and ran out of the courtroom screaming, and Zelenka would find her sobbing on the other side of the building and bring her back to court. Although Denor was combative and emotional at certain times during the 440 hearing, she came across as someone determined to correct her “lie.” She broke down sobbing on the witness stand when she apologized to defendant and begged for his forgiveness for what she had done. She also became emotional when she explained how she has hated herself for twenty years, that she was testifying against her doctor’s advice, that she should be the one punished for what she did, that she prays to die for what she did to defendant, and when she begged the court to have mercy because defendant was innocent. Denor’s demeanor at the 440 hearing was consistent with that of a truly remorseful witness.
(3) The Existence of Evidence to Corroborate the Trial Testimony. There was no evidence at trial to corroborate Denor’s identification of defendant. Nor was there any other evidence, either direct or circumstantial, to connect defendant to the crime, and the People do not cite to any. This was conceded by the trial prosecutor’s testimony at the 440 hearing.
(4) The Reasons Offered for the Trial Testimony and the Recantation. Denor credibly testified that she lied at trial to protect her son based on the belief that Pezzullo would make things difficult for him if she did not participate and identify the defendants. Based on Denor’s own troubled history and that of her son, it is certainly believable that she would be more susceptible to threats against her son, whether real or perceived.
The court is not persuaded by the People’s argument that she is now lying because of pressure from defense investigators as evidenced by her phone conversation with Zelenka in which she screamed she “had enough.” It is simply not believable that it would be easier for someone, who lives three hours away in another state, and who is ill and in declining health, to come into court to recount the traumatic experiences in her own life, and to lie now and admit that a man has spent twenty years in jail because of another lie, just so that investigators would leave her alone. Contrary to the People’s position, it would have been easier for Denor to stand behind her trial testimony and stay at home given her current ailments. In fact, Denor concluded her testimony by stating, “I came all the way here as sick as I am against my doctor’s advice and I would do it again. He’s innocent. So help me God, he’s innocent.” This hardly sounds like the testimony of someone who yielded to pressure from an investigator.
(5) The Importance of Trial Facts as Confirmed by the Recantation. Denor’s testimony that she could not have seen the gunmen well enough from her apartment window to identify anyone, and her recantation testimony that defendant was not one of the gunmen highlights some important and undisputed trial facts. Denor was only able to observe the gunmen from the vantage point of her bedroom window, four stories above street level. Despite there being street lights, it was dark outside because it was almost midnight. Denor saw the gunmen only for a few seconds, at best, as they were getting out of a car double-parked in the street. In those few seconds, her attention was divided between looking at the guns and her son on the sidewalk below, and she quickly left the window to run to her son downstairs. She next saw the gunmen from behind as they were getting back into the car.
(6) Any Relationship between the Recanting Witness and Defendant that Would Suggest a Motive to Lie. Denor is a complete stranger to defendant. There is no evidence of any relationship between Denor and defendant, or anyone else connected to the case that would provide a motivefor her to lie.
After assessing the above factors, the court finds that Denor’s recantation of defendant as one of the shooters is credible and reliable and is corroborated by evidence at the trial itself and evidence produced during the hearing. Based on the foregoing, the court also holds that defendant has met his burden and finds that the recantation evidence is sufficient, in and of itself, to warrant the relief sought.
Thus, in view of the foregoing, defendant’s motion to vacate his conviction for Murder in the Second Degree is granted, and a new trial is ordered.
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