People v. Hamilton

115 A.D.3d 12

979 N.Y.S.2d 97

2014 N.Y. Slip Op. 00238

The PEOPLE, etc., respondent,

v.Derrick HAMILTON, appellant.

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

Jan. 15, 2014.

Jonathan I. Edelstein, New York, N.Y. (Robert Grossman of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN and SYLVIA O. HINDS–RADIX, JJ.

HINDS–RADIX, J.

The primary issue on this appeal, and an issue of first impression for an appellate court in this state, is whether a defendant's claim of actual innocence may be recognized as a ground to vacate a judgment of conviction pursuant to CPL 440.10(1)(h), which authorizes a court to vacate a judgment which was obtained in violation of an accused's constitutional rights. For the reasons which follow, we hold that a “ freestanding” claim of actual innocence is cognizable in New York, and that a defendant who establishes his or her actual innocence by clear and convincing evidence is entitled to relief under the statute.

By judgment rendered July 12, 1993, the defendant was convicted of murder in the second degree, upon a jury verdict ( see People v. Hamilton, 272 A.D.2d 553, 708 N.Y.S.2d 136), stemming from the shooting of Nathaniel Cash in Brooklyn on January 4, 1991, at around 11:00 a.m. ( see Hamilton v. Herbert, 2004 WL 86413, 2004 U.S. Dist. LEXIS 590 [E.D.N.Y., No. 01 CV 1703] [JG] ). The defendant's conviction was based upon the trial testimony of the victim's girlfriend, Jewel Smith ( see id.). At trial, the defendant had intended to present an alibi defense that he was in New Haven, Connecticut, at the time of the crime, and submitted a notice of alibi ( seeCPL 250.20), naming Kim Freeman and Alphonso Dixon as alibi witnesses. He was unable to present such a defense, however, because Dixon claimed to be too ill to appear at trial, ¹ and Kim Freeman claimed to be too frightened to appear ( see People v. Hamilton, 272 A.D.2d at 554, 708 N.Y.S.2d 136).

Prior to sentencing, the defendant moved to set aside the verdict against him pursuant to CPL 330.30 based, inter alia, upon Smith's recantation of her trial testimony, the discovery of exculpatory evidence that Smith told police shortly after the crime that she did not witness the crime, and the discovery of a new defense witness who claimed that she was with Smith inside a supermarket at the time of the crime. At a hearing, Smith claimed that she testified falsely against the defendant because the police threatened her with criminal prosecution and the removal of her children from her custody. Her testimony was refuted by the testimony of the prosecutor and the detectives handling the case, including Detective Louis Scarcella, who claimed that Smith was not threatened, and that her recantation was based upon her fear of the defendant. The trial court found that Smith's recantation was unreliable, and denied the defendant's motion ( see Hamilton v. Herbert, 2004 WL 86413, 2004 U.S. Dist. LEXIS 590).

In 1994, after the defendant was sentenced, he made his first of several motions pursuant to CPL 440.10 to vacate the judgment of conviction. This motion was based, inter alia, on the testimony of a purportedly newly discovered eyewitness who claimed that the defendant did not commit the crime. During a hearing on the motion, the defendant sought to expand the scope of the hearing to include the testimony of two allegedly newly discovered alibi witnesses who did not testify at trial and were not mentioned in the pretrial notice of alibi. Those witnesses—Kelly Turner (a New Haven Police Officer) and Davette Mahan—allegedly were unavailable at the time of the trial because they could not be located. Turner claimed she met the defendant at a party in New Haven on January 3, 1991, and then picked him up at his hotel at around 11:00 a.m. the next day, just at the time the crime was committed in Brooklyn, to drive him to her office, where she and the defendant discussed, until around noon, employing the defendant in her talent agency. Mahan, in her affidavit, claimed she was an employee of the talent agency, and that she saw the defendant at the party and at the meeting the next morning at the talent agency. The Supreme Court denied the defendant's application to expand the scope of the hearing to include testimony from Turner and Mahan.

By order dated April 2, 1996, the Supreme Court denied the defendant's motion to vacate his judgment of conviction, concluding that the testimony of the purported eyewitness that someone other than the defendant committed the crime was not credible. The court also explained that its ruling denying the defendant's application to expand the scope of the hearing had been based on two grounds. First, Turner and Mahan had not been included on the defendant's alibi witness list at trial. Second, the affidavits of these witnesses, and their proposed testimony, did not constitute newly discovered evidence, because the defendant had failed to establish that they could not have been located in time to testify at trial with the exercise of due diligence.

The appeal from that order was consolidated with the defendant's direct appeal from the judgment of conviction. On appeal, this Court ruled that defense counsel was not ineffective for failing to call the alibi witnesses Alphonso Dixon and Kim Freeman ( see People v. Hamilton, 272 A.D.2d 553, 708 N.Y.S.2d 136). The denial of the application to expand the scope of the hearing to include the testimony of the alibi witnesses Turner and Mahan was not raised on the appeals to this Court.

The defendant made additional motions pursuant to CPL 440.10, alleging, inter alia, that a witness told the police prior to trial that someone known as “Money Will” murdered Nathaniel Cash. Those motions were denied.

In April 2005, the defendant again moved pursuant to CPL 440.10 to vacate the judgment of conviction, raising a claim of actual innocence based upon evidence adduced at prior proceedings. That motion was denied on the ground that his demands for relief were rejected in the prior proceedings.

By notice of motion dated July 7, 2009, the defendant moved yet again to vacate the judgment of conviction pursuant to CPL 440.10, for habeas corpus relief pursuant to the CPLR, and for relief pursuant to the United States Constitution and the New York Constitution, claiming that evidence of his alibi established his actual innocence. The People opposed, arguing, among other things, that, to the extent the defendant was seeking reargument or renewal of prior motions, such claims should be denied. In reply, the defendant claimed that he was entitled to an evidentiary hearing on the previously rejected testimony of Turner and Mahan, because they could attest to his actual innocence and had never been permitted to testify before the court.

The defendant also submitted the affidavit of Mattie Dixon, widow of Alphonso Dixon, and Tashameaka Watson, daughter of Alphonso Dixon. According to Mattie Dixon, her husband gave a party at the Quality Inn in New Haven on January 3, 1991, for Lee Marvin, who was turning himself in the next day on drug charges. The defendant attended the party with Kim Freeman. Watson also attended the party, which ended around midnight. The next day, Mattie Dixon accompanied Kim Freeman to Turner's talent agency to pick up the defendant, they drove to Lee Marvin's home to say goodbye, and then they drove to the Dixons' home on Fairfield Street in New Haven. They arrived at the Dixons' home around 12:30 p.m., and Watson borrowed the defendant's telephone to make a telephone call. Around 1:00 p.m., the defendant and Freeman left the Dixons' home with Alphonso Dixon. Thereafter, prior to the defendant's trial, Detective Billy White, from the New Haven Police Department, threatened Alphonso Dixon with arrest if he testified as an alibi witness on behalf of the defendant.

Jonathan Edelstein, who became the defendant's attorney, filed an affirmation on the defendant's behalf, noting that both Turner and Mahan had sworn that the defendant was in New Haven at the time of the murder, but the trial court summarily rejected their testimony because neither Turner nor Mahan were listed on the pretrial alibi notice. Edelstein claimed that, by summarily dismissing such compelling evidence of actual innocence, the court violated the defendant's right to due process of law, citing In Re Davis, 557 U.S. 952, 130 S.Ct. 1, 174 L.Ed.2d 614. Edelstein argued that there was good cause to overcome any procedural bars advocated by the People and that all of the evidence, old and new, should be examined in deciding the defendant's actual innocence claim. He argued that the court should consider, sua sponte, whether trial counsel was ineffective for not including Turner and Mahan in the pretrial alibi notice.

In a supplemental affirmation in opposition, the People argued that the defendant's claims were, for the most part, procedurally barred and, in any event, meritless. The People noted that the court previously determined that the Turner and Mahan affidavits were not newly discovered evidence within the meaning of CPL 440.10(1)(g), and the ineffective assistance of counsel claim also was procedurally barred, as the defendant could have raised it in one of his previous motions to vacate the judgment of conviction, but failed to do so. As for the actual innocence claim, the People noted that the question of whether such a claim was cognizable under federal or state law had “yet to be decided.” However, the People acknowledged that if the defendant could prove his actual innocence by clear and convincing evidence, his continued incarceration would be “fundamentally unfair,” in violation of the New York Constitution.

In a reply affirmation, Edelstein argued that “[a] free-standing actual innocence claim exists separate...