The defendant stands before the court awaiting a retrial. In 1995, a jury convicted him of depraved indifference murder in the second degree (Penal Law § 125.25 [2]) and criminal [*2]possession of a weapon in fourth degree (Penal Law § 265.01 [2]) for the stabbing death of James Abbott on April 9, 1994.^[FN1][FN2] He received a sentence of a prison term of 25 years to life for the depraved indifference murder count and a prison term of one year for the weapons count.^[FN3] This judgment was vacated pursuant to CPL 440.10 (1) (g) (newly discovered evidence) by this court on June 27, 2008.^[FN4] The People have appealed that decision.^[FN5]

The People now move to reargue the CPL 440 decision. This court granted defendant's motion to vacate his judgment of conviction on the ground that defendant had presented newly discovered evidence of such character that, had it been received at his trial, the verdict would have been more favorable to defendant.^[FN6]

In their pleadings for reargument, the People presented the court with an order to show cause in which they argued that part of the evidence on which this court relied included a recorded conversation that has now been shown to be fraudulent. This conversation purported to be between a confidential informant, Michael Green ^[FN7] (who created the tape), and Levon "Ishmael" Melvin, in which Melvin confessed to having stabbed the victim, James Abbott — the crime for which defendant had been convicted.

The People claim that this tape recording is fraudulent in that the second voice on the tape is not Melvin's, but rather an acquaintance of Green, Jonathan Tatum, pretending to be Melvin. The People further argue that Michael Green's testimony in the hearing to vacate judgment was perjurious, not only for his testimony that the second voice on the tape was that of Melvin, but for swearing that Melvin had confessed to the murder prior to the making of the tape recording. In making these initial arguments the People presented various affidavits, including that of Green. Green's affidavit states, inter alia, that he made the false recording because he was paid thousands of dollars by the attorneys for the defendant, that any information contained in the [*3]recording came from information provided by Edward Henson ^[FN8], Joseph O'Brien ^[FN9], and the defendant's attorney, Thomas Hoffman. The affidavit concluded with:

"That I fabricated this evidence and testified falsely in court because I was told by Kareem Bellamy's attorney, Thomas Hoffman, Retired Detective Edward Henson and Retired F.B.I. agent, Joe O'Brien that Kareem Bellamy did not commit this homicide and was in jail for a crime he did not commit and further that they believed that Levon "Ishmael" Melvin was the real perpetrator of the crime and because I was paid thousands of dollars by the defense team."

What the People argued to this court was two-fold: (1) the testimony of Green and the tape recording that he presented in the first hearing were both false ^[FN10]; and (2) that Hoffman suborned perjury and that "[t]hese serious allegations are the subject of an ongoing investigation."^[FN11] This court granted the order to show cause, and ordered a hearing to resolve these issues.^[FN12]

Because of the potential conflict of interest due to the allegations of suborned perjury, the motions to be relieved by the defense attorneys who conducted the CPL 440 hearing ^[FN13] were granted, and The Legal Aid Society was appointed to represent the defendant in the hearing on the order to show cause.

From the testimony at this second hearing, it is clear that the subject-recording is fraudulent.^[FN14] [*4]Therefore, the question before this court is whether, in the absence of the tape, are there sufficient grounds to support this court's vacating the defendant's conviction?^[FN15]

Once Green admitted that he falsified the recording that purported to be a conversation with Levon Melvin, it would be simple and quick to apply the maxim of falsus in uno, falsus in omnibus ^[FN16] and disregard everything Green stated. However, that maxim is permissive only — not mandatory — and it is for this court to determine how much — if anything — to believe from a witness (see People v Barrett, 14 AD3d 369 [1st Dept 2005], citing People v Becker, 215 NY 126 [1915]). Further, Green's background does not make his testimony incredible as a matter of law. As the Second Department recently stated:

"A witness's unsavory background [ ]' does not render his or her testimony incredible as a matter of law' (People v Smith, 302 AD2d 615, 616 [2003]; see People v Toro, 272 AD2d 351 [2000]). As noted by my learned colleague, the Honorable Gabriel Krausman, at the oral argument before this Court, the People use [such witnesses] all the time' (see e.g., People v Brown, 41 AD3d 261, 264 [2007], lv denied 9 NY3d 873 [2007]; People v Smith, 302 AD2d 615, 616 [2003]; People v Louis, 294 AD2d 377 [2002])." (People v Tankleff, 49 AD3d 160, 181 [2d Dept 2007]).

BACKGROUND AND FINDINGS OF FACT

After Bellamy was convicted, he and his step-father (who was his alibi witness at trial) wrote letters and sent copies of a CourtTV ^[FN17] video that was made about this case to numerous [*5]attorneys. One attorney who took an interest was Thomas Hoffman, Esq.^[FN18] Hoffman brought the Court TV video to the law firm of Cravath, Swaine & Moore LLP ("Cravath"). After Darin McAtee, Esq., a partner at Cravath, viewed the video, they took on the case pro bono publico.

Hoffman and Cravath, working together, made numerous Freedom of Information Law (FOIL) requests ^[FN19] for all the police reports that pertained to this case.^[FN20]

The defendant's new attorneys also had their investigators locate and interview all trial witnesses and those whose names appeared on the police reports. The one witness that they failed to find was Anna Simmons. Anna Simmons is a woman who worked in a laundromat in the Rockaways neighborhood where Abbott's murder took place, and who called the police six days after the murder to say she had information about this crime. According to the DD5 that was prepared to document her phone call, Simmons stated she overheard two Regulator gang members bragging about having committed the Abbott murder. She identified them as Ishmel (i.e., Levon Ishmel Melvin also known as "Ish") and Rodney Harris (also known as "Turk").^[FN21] Evidence of her reporting this to the police was presented to the trial jury. Also presented was the fact that no detective or prosecutor attempted to locate or interview either of these two men. Nor did anyone in law enforcement ever locate Anna Simmons.

While the hearing on the motion to vacate Bellamy's conviction was being conducted, Bellamy's attorneys determined that it was critical that they locate Anna Simmons. They hired a former FBI agent, Joseph O'Brien, to assist in the case.

Joseph O'Brien had been in the FBI for close to 20 years (from 1972 to 1991). He received many commendations and awards during his time with the FBI,^[FN22] but is best known for arresting Paul Castellano, the head of the Gambino family and head of the Mafia Commission.^[FN23]

Bellamy's attorneys directed O'Brien to go to the Rockaways, where this crime took place, to try [*6]to develop information.

As O'Brien never had occasion to work in this area, he had no success in getting any information from anyone. He then suggested that a retired detective who worked in the area (the 101st Precinct) at the time of the Abbott murder should be hired to assist him as that person would be more familiar with the residents there. A retired detective working as a private investigator recommended Ed Henson, who had retired as a 101st precinct detective.^[FN24]

When Henson and O'Brien went to the Edgemere projects in Far Rockaway Henson was given, according to O'Brien, a hero's welcome.^[FN25] He and O'Brien testified that they created "chatter" about trying to locate Anna Simmons in connection with the Abbott murder, and were letting people know that they were doing so because it was possible that an innocent man had been convicted of this crime. Both Henson and O'Brien testified that they never mentioned Melvin or Harris or their various "street names" while attempting to locate Anna Simmons. After hearing them both testify, this court found them both to be totally credible on this matter.

The "chatter" strategy seemed to be working as many people in the neighborhood approached them to talk. Among the people who approached Henson was Michael Green.

Henson and Green knew each other. Michael Green had provided information to Henson and detectives in the 101st Precinct in the past.^[FN26] They even appeared in a shot on a CourtTV [*7]documentary series about crime in the Rockaways called The System.^[FN27]

Green rode his bicycle up to the two investigators, greeted Henson, and said that they needed to talk. Henson told him not to talk then and there, ascertained that Green still lived at the address Henson remembered, and told Green to go to his apartment and that they would meet him there.

At that first meeting, Green told them that "Ishmel Melvin killed that kid" (referring to Abbott). He explained that he knew this from Melvin, whom he knew for over 40 years. Green said he had worked security for Melvin and was godfather to both of Melvin's children. Green said Melvin told him this because Melvin was upset that Harris had been talking to the investigators and said nothing to Melvin. Melvin was concerned that Harris might be "giving him up." Melvin told Green (according to Green) that Melvin stabbed Abbott about seven times because Abbott wouldn't stop messing with Melvin's "woman."^[FN28] Melvin also told Green (according to Green) that Harris was present at the time of the stabbing. This is why Melvin feared that Harris might be "giving him up."

The investigators immediately put Green in touch with Hoffman and Cravath, who in turn brought Green to the District Attorney's Office. Hoffman and Cravath scheduled a deposition for Green (to which the prosecutors were invited — but declined) at the Cravath offices. In his deposition, Green repeated everything he had told O'Brien and Henson about Melvin under oath. Green received cab fare to attend the deposition. The prosecutors were asked to wire Green so he could try to get Melvin to repeat his admission of the Abbott murder for them to record. The prosecutors declined to do so on ethical grounds, fearing that doing so might jeopardize any possible future prosecution of Melvin.

The investigators then attempted to locate Melvin.

Henson also knew Melvin from his days as a detective in the 101st Precinct. From this relationship and others, one senses how Henson developed cases, informants and friends in the community.^[FN29] [*8]

When word got to Melvin that Henson and O'Brien were looking for him regarding the Abbott murder, he quit his job and moved out of the Rockaways (to, it later turned out, New Jersey). He also hired an attorney, Eugene Levy, and both Melvin and his attorney let the two investigators know that Melvin was represented by counsel and that any inquiries should be directed to Levy.

Hoffman still wanted to get Melvin on tape. He contacted the case detective who was originally assigned to the Abbott murder investigation, retired Detective Cashen and asked Cashen's assistance in having Green tape record Melvin. Cashen agreed, but Green did not show up at the appointed time. Hoffman then gave Green a tape recorder and Green, apparently sensing that Hoffman was eager for a recording of the confession, came back with what we now know to be a fraudulent tape.^[FN30]

When this court's decision vacating Bellamy's conviction was published in the New York Law Journal, a relative of Melvin's who was serving time upstate read it, saw Melvin's name in the decision, and contacted Melvin, who immediately figured out that John Doe/CI was Michael Green. Melvin contacted his attorney and swore he never made any such tape or gave any such statement to Green. Melvin's attorney contacted the prosecutors on this case. Green was brought in and admitted that Jonathan Tatum was the voice on the tape pretending to be Melvin.

The members of the District Attorney's Office made Green very aware that he could be prosecuted for perjury. In addition to fearing retribution from Melvin and prosecution for perjury, Green also sensed that the prosecutors also wanted Bellamy's conviction reinstated. He then told them that Melvin never confessed the Abbott murder to him and that he knew nothing [*9]about it other than what the attorneys and investigators told him.^[FN31] The District Attorney's Office provided him with an attorney and offered him immunity from prosecution for any perjury he committed at the CPL 440 hearing. They, in turn, received his affidavit in support of their Order to Show Cause.

GREEN'S CREDIBLE EVIDENCE

Faced with Green's affidavit and his admission that he created a fraudulent tape recording, this court must now determine whether there has been any testimony from Green that this court can or should credit.

In the first hearing, Green testified that he had a conversation with Levon "Ish" Melvin, whom he had known for many years. He testified that in this conversation, it came out that Melvin was angry at Rodney Harris ^[FN32] because Melvin heard that the investigators (O'Brien and Henson) spoke with Harris about the Abbott murder and Harris never told Melvin about the conversation.

"He found out the detectives were talking to Turk. And Turk's supposed to be his partner, his gang partner ^[FN33] ... Ish found out through somebody else that the detectives was questioning Turk [*10]and this is what prompted the conversation with me and him. He was like really just talking to himself in the car."^[FN34]

Green testified:

"I asked him what happened, so then he started explaining to me that this guy James Abbott was messing with his girl, his girlfriend, so. And he was like, I spotted him. Him and Turk was riding passed him in the 40's and they made a U turn, came back, and he was getting out to talk to the guy and the guy was starting running off at his mouth and he said he stabbed him."^[FN35]

Green further testified that he was the one who approached Henson, whom he knew since Henson had been a detective "in the projects for like over 25 years.... I seen him and sometimes he ask me for information. I give him information about certain things."^[FN36]

"I seen him in the project. I was in front of the laundromat and he was in front of 51-32, him and another gentleman, I happened to spot him. I was on the bike and I rode over there to where he was and I asked him: What were you doing back here, man? ... [H]e explained to me what was going on, and, you know, what they was investigating. And when he said that to me I told him, I said, Listen, I can't talk to you right now but I have some information on that. You can meet me at my house.'"^[FN37][FN38]

The People, based on Green's affidavit, argue that this information was fed to him by Henson and O'Brien. However, the testimony of Green, Henson and O'Brien are all consistent that it was Green who gave the investigators the information and not the other way around. The investigators went into the area without mentioning names of Melvin/Ish and Harris/Turk. This testimony is consistent in both hearings. Moreover, Green, even after the affidavit proffered to this court and while under immunity, testified in the second hearing — just as he had in the first [*11]one — that he mentioned the Melvin and Harris names first.^[FN39]

While the People have provided some evidence as to why Green would lie about Melvin (i.e., Green was allegedly angry about losing his job with Melvin ^[FN40]), nothing was proffered as to why Green would implicate Harris and put Harris and Melvin together in the killing of Abbott. Again, there is nothing in the record that would explain why Green would implicate Harris. It is this connection of Melvin and Harris that is essential in determining the credible evidence from Green. The connection of Melvin and Harris is consistent with the Anna Simmons' telephone call, which was memorialized in a DD5 shortly after the murder. In this DD5 it is reported that Anna Simmons stated that she heard Rodney Harris and Ishmel (i.e., Melvin), with whom she was familiar with and whom she knew to be members of a gang called the Regulators, brag about the murder six days after the murder.^[FN41] [*12]

It is this consistency among these witnesses and the Anna Simmons DD5 that permits this court to find Green's testimony about his conversation with Melvin and with the investigators from the first hearing to be credible.^[FN42] Prior to reaching such a conclusion, this court applied the same standards for evaluating testimony as it instructs a petit jury:

"If you find that any witness has intentionally testified falsely as to any material fact, you may disregard that witness's entire testimony. Or, you may disregard so much of it as you find was [*13]untruthful, and accept so much of it as you find to have been truthfully and accurately given."

To have disbelieved all of Green's testimony would have necessitated a finding that both Henson and O'Brien lied about their initial conversation with Green and about whether they coached Green to implicate Melvin. As the court found Henson and O'Brien credible on these issues, this court cannot discredit all of Green's testimony.

The court credits that portion of Green's affidavit which claimed that the tape is false. Additionally, much of Green's testimony at the current hearing also turned out not to be truthful. The remainder is found to be credible.^[FN43]

What is left is the fact that unprompted and unpaid Green initially approached Henson and O'Brien and named as perpetrators of the Abbott murder, the same two people that Anna Simmons did six days after the murder. The court also credits his testimony at the original hearing that Melvin did make an admission to him because he was furious with Harris for talking to investigators and not telling him. The court rejects Melvin's testimony that this conversation never took place, also rejects Melvin's testimony that Green made this up because Melvin fired Green from a job. Their families were close for years, Green and his wife are godparents to Melvin's first son ^[FN44] and Melvin could very well have gone to Green to vent his anger with Harris. Furthermore, it rings true that Melvin feared Harris's conversation with the investigators because he thought Harris was implicating him.

Other testimony received during both hearings leads credence to portions of Green's testimony about what Melvin said to him.

Some corroborative evidence comes from Yolanda Dove's testimony during the People's case at the CPL 440 hearing. Dove stated that prior to appearing at the hearing, Melvin put her in touch with his attorney.^[FN45]

When asked where Melvin lived, she said she could not give an exact address (even though she dropped off and picked up her children there). When asked for his telephone number (which she acknowledged calling frequently as they shared custody of their children), she couldn't [*14]remember it. She was clearly not telling the truth at this point and still appears to be fearful of him, even though she denied it.

Dove denied having any relationship with James Abbott, whom she knew. The credibility of that statement would have to be determined by the trier of the fact.^[FN46] Dove does however, corroborate Green's statement that Melvin was jealous of her seeing other men, would get violent, that he knew Harris (who was also a member of the Regulators gang). Dove also refutes Melvin's claim that the Regulators was a dance group.

Dove ended her testimony stating that she knew Michael Green and knew him as "Country Mike."

Another piece of corroborative evidence came about as a result of a FOIL request made by Bellamy's attorneys. The police had interviewed Deborah Abbott, James Abbott's sister, who told them that James Abbott had been fooling around with another woman. This report had not been turned over to trial counsel or the trial prosecutor.

This failure to turn this over constitutes a Brady violation.

BRADY

In this court's June 27, 2008 decision, it was stated that there were Brady-Rosario ^[FN47] violations, but standing alone, these violations could not have warranted vacating the defendant's conviction.

As the tape recording was credited in that decision as a sort of smoking gun, the court's decision did not discuss these Brady violations at great length. Since the tape recording has been found to be fraudulent, a further discussion of the Brady issues is warranted.

As was pointed out in the original decision, the detective originally assigned to the case became ill, and no other detective was assigned as a replacement to be responsible for the investigation. Numerous detectives worked on the case, and the DD5s were never numbered so it became unclear at the time of the trial whether ADA Guy or defense counsel Reiver ever had all the police reports. It is not until the FOIL request that these reports were discovered.^[FN48] [*15]

The obligation of the prosecutor to deliver favorable evidence (the so-called Brady material ^[FN49] exists whether the failure to deliver is intentional or not, or in good faith or not (Brady v Maryland, 373 US 83 [1963]^[FN50] People v Hunter, 11 NY3d 1 [2008]; People v Bryce, 88 NY2d 124 [1996]; People v Baxley, 84 NY2d 208 [1994]).

Even where the prosecutor does not have personal knowledge of the existence of Brady material, the prosecutor is still charged with knowledge if an official of the state working on the case has that material (Kyles v Whitley, 514 US 419, 438 [1995]).^[FN51] The law imposes on the prosecutor the duty to learn of any Brady material known to anyone acting on the state's behalf — including the police — and to disclose the information (Youngblood v West Virginia, 547 US 867, 869-70 [2006], quoting Kyles v Whitley, 514 US 419 [1995]); People v Santorelli, 95 NY2d 412 [2000]).^[FN52]

In deciding this motion this court has a dual function. To evaluate the truthfulness of Green's allegations in support of the order to show cause, this court must and has made credibility decisions. However, to ascertain if there is newly discovered evidence that would warrant a new trial, the court does not make a final determination regarding the credibility of that evidence. Instead, the court must simply decide if there is a probability that a more favorable verdict would have resulted if the jury had heard this testimony (People v Wong, 11 AD3d 724 [3d Dept 2004]).^[FN53] What weight they would give to this newly discovered evidence would be left to them. In order to make this determination, this court must assess how defense counsel might have utilized the newly discovered evidence at trial.

Defense counsel could argue that Deborah Abbott's statement to the police that Abbott was fooling around with other women, combined with the testimony of Yolanda Dove, the mother of Melvin's children, that he was jealous of her involvement with other men, lends significant [*16]credence to Melvin's statement to Green that he killed Abbott because Abbott was fooling around with "his woman." Had the Bellamy jury heard this evidence of Melvin's confession to Green, it is highly probable that they would have rendered a more favorable verdict.^[FN54]

The Brady material discovered after the trial by Cravath and Hoffman through FOIL requests also included the police reports of an interview with Abbott's wife. She told the police that Abbott had been in possession of a weapon and was packaging what appeared to be drugs. This would have been helpful to trial counsel, who could have argued that not only did the police fail to interview Melvin ^[FN55] and Harris after getting the call from Anna Simmons, but they also failed to investigate Abbott's background and associates who might have had a motive to murder him (which Bellamy did not). However, Bellamy was never provided with these reports.

CONCLUSION

In determining the "impact of evidence unavailable at trial, a court must make its final decision based on the likely cumulative effect of the new evidence had it been presented at trial" (People v Tankleff, 49 AD3d 160, 181 [2d Dept 2007], quoting Amrine v Bowersox, 128 F3d 1222, 1230 [8th Cir 1997], cert denied 523 US 1123 [1998]).

As this court credits Green's original testimony about Melvin's confession to him, it is worth noting that many a jury has convicted based on the testimony of someone whose reputation and background are less than savory.^[FN56] Had Bellamy's trial jury heard testimony that Melvin confessed to Green, and that Green who, without payment or prompting, informed Henson and O'Brien, a different verdict would likely have resulted. This is even more likely if the jury heard that Anna Simmons named the same two people as the perpetrators 14 years earlier. A jury could also find that the corroborative testimony of Yolanda Dove and Deborah Abbott lend credence to Green's testimony. The coincidence itself would have raised a reasonable doubt in that jury's mind. There was never any strong identification testimony by Andrew Carter, who picked a different person out initially at the lineup, and was confused at trial. That jury deliberated for [*17]days and delivered a Christmas Eve verdict.^[FN57] This court believes that the newly discovered evidence that comes from Green would have yielded a more favorable verdict to Bellamy and adheres to its original decision vacating his conviction and ordering a new trial.

Had the jury only heard the Brady evidence without Green's testimony, the verdict would probably be unchanged.

However, had the trial jury heard the newly discovered evidence of Green's testimony about Melvin's admission and declaration against penal interest, this court believes that there is a great probability that the trial jury's verdict would have been more favorable to Bellamy. Had the trial jury heard the undisclosed Brady evidence coupled with Green's testimony about Melvin's statement to him, this court finds that there is more than a "reasonable probability" that the outcome of the trial would have been different (see People v Bryce, 88 NY2d 124, 128 [1990]).

As all of this evidence qualifies as newly discovered evidence within the meaning of CPL 440.10 (1) (g)^[FN58]— as well as People v Tankleff, 49 AD3d 160 (2d Dept 2007) and People v Salemi, 309 NY 208 (1955)^[FN59]— the court, after carefully evaluating all the witnesses at the hearing on the People's motion to renew and reargue this court's June 27, 2008 decision and after reading the written submissions of the parties, the court denies the motion to vacate that decision. Accordingly, the court adheres to the June 27, 2008 decision and the defendant's conviction remains vacated and a new trial is ordered.

When this court issued the June 27, 2008 decision, the prosecution sought and was granted a stay of the court's order of a new trial pending the appellate review of that decision. That stay will remain in effect until December 23, 2010. Depending on the status of the appeal, a motion for a [*18]stay can be renewed on that date. If the appeal is decided prior to December 23, 2010, either party may advance this case.^[FN60] At the same time, the court also granted the defendant's motion for bail in the amount of $150,000 ^[FN61] and that remains in effect.

The Clerk of the Court is directed to enter this Order. IT IS SO ORDERED.