Defendant moves to set aside his conviction for Murder in the Second Degree based primarily on the recantation of the sole eyewitness's identification testimony. For the reasons set forth below, the motion is granted and a new trial is ordered.

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 [*2]of July 16, 1991.^[FN1] Defendant and his co-defendant, Jose Garcia ("Garcia"), were convicted after a jury trial based on identifications made by a single eye witness, Penny Denor ("Denor"). Denor, 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, John Garey ("Garey"), was out on the street and witnessed the shooting, he was never called as a witness at trial. 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.

Denor, 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. 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 the detective and whom she did not want to testify.

Defendant moves to vacate his conviction pursuant to CPL §440.10 based primarily on Denor's recantation.^[FN2] 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.^[FN3]

Defendant also claims that Garey, now thirty-three years old, viewed photographs of [*3]defendant and is certain that defendant was not one of the men he observed shoot Cesar Vasquez. Defendant argues that Garey was unavailable to the defense at trial and therefore his exculpation of defendant also constitutes newly discovered evidence.

Since defendant's conviction, co-defendant Garcia prevailed on a federal writ of habeas corpus where the District Court found Garcia's trial counsel ineffective for failing to pursue an alibi defense for Garcia.^[FN4] Defendant argues that the documentary evidence as well as the federal hearing testimony placing Garcia in the Dominican Republic on the day of the crime is likewise newly discovered evidence and bears directly on the lack of reliability of Denor's identification of defendant.

Additionally, defendant argues that the People committed a Brady violation by failing to disclose that Denor's identification of a third shooter, an identification the detective claimed she was 90% sure of, was definitively ruled out based on confirmation that the man was hospitalized at the time of the shooting.

With the People's consent, the court held a hearing on the motion to vacate.^[FN5] After a thorough evaluation of the hearing testimony, the exhibits admitted in evidence, review of the prior Wade hearing and trial testimony, the oral arguments of the parties, review of the relevant case law, and for the reasons detailed below, the court grants defendant's motion to vacate his conviction and orders a new trial.^[FN6]

Denor testified at trial that on the night of the shooting she was looking out her window [*4]for her son who had not come home for dinner. After seeing her son on the street below, Denor saw three men with guns get out of a blue car double-parked in front of her building. She had never seen these men before. Although she was four stories high, it was almost midnight, and she could not remember any particular facial features, Denor testified that defendant had a "very heartless, cold face" and "cold blooded eyes." She claimed to have had a clear view of their faces as they looked at the entrance to the courtyard, but admitted that she saw the men for only a matter of seconds before leaving the window. Fearing for her son's safety, Denor ran downstairs and heard approximately five gun shots. As she entered the courtyard, she observed the three men from behind as they got into the blue car. She saw that her son was safe, saw the victim laying on the ground in the courtyard, and saw the blue car make a u-turn and speed away.

Detective Anthony Pezzullo ("Pezzullo") from the 50th Precinct was the lead investigator in the case. When he interviewed Denor on the night of the shooting, she described the shooters as three black men wearing hoods. Pezzullo also interviewed Denor's son and several other witnesses that night who likewise described the shooters as three black men with hooded sweatshirts.

On September 26, 1991, Denor went to the NYPD "Catch" unit to look at photographs of possible suspects. At the Wade hearing, Denor testified that before looking through pictures that day, she and Pezzullo were parked behind the precinct while he was looking though pictures he had in a folder. Although Pezzullo did not say anything to her, she saw a picture of defendant as he was looking through them and identified him as one of the gunmen and the driver of the car. She then went into the Catch unit and picked out photographs of the two defendants out of hundreds of pictures. Pezzullo, in his hearing testimony, denied that he ever showed Denor any photograph of defendant prior to entering the Catch unit. He did, however, acknowledge showing her single photos of other potential suspects about a month before going to that unit.

While at the Catch unit, Denor also picked out a third photograph of a man she believed was the rear passenger shooter. Pezzullo testified that Denor was 90% certain of the photograph but that 90% was not sufficient for a homicide investigation.

Denor viewed a lineup on October 17, 1991 and identified defendant as one of the gunmen and the driver of the vehicle. She viewed a second lineup on December 11, 1991 and identified co-defendant Garcia as the front passenger.^[FN7]

Denor's descriptions of defendant and the other shooters changed and became more detailed between her first interview with Pezzullo and her hearing and trial testimony. Detective Pezzullo testified at the Wade hearing that Denor described the shooters only as three male blacks on the night of the murder. Denor testified at the Wade hearing that the passenger was Hispanic, with dark hair, a mean looking face, medium weight, and a mustache. She testified that the driver was stocky, with long, curly style, knappy hair, down to his shoulders, dark skin, and a heartless, cold face and cold-blooded eyes. At trial, Denor did not remember if any of the men had facial hair, nor could she describe the driver's race except to say that he had "fair skin, . . [*5]. a little darker though, with long hair." At both the Wade hearing and trial, Denor claimed that one of the passengers wore a "very outstanding" flowery shirt, not that anyone wore hooded sweatshirts.

On direct-examination at trial, Denor identified Garcia as the front seat passenger, but when asked if she could identify the driver she indicated that she was not sure. After the lunch break, during cross-examination, Denor spontaneously identified defendant Morillo as the driver.

At both hearing and trial, Denor testified that at the time of the murder she was under a doctor's care for depression. She was taking daily doses of two milligrams of valium, which she had taken on July 16th before the shooting. She testified that the valium was a mild dose and that its only effect was to make her sleepy and make her "slow" if she had a busy day. When she testified at trial in December 1992, Denor was taking daily doses of twenty-five milligrams of thorazine, which she claimed was also to treat her severe depression.

During the Wade hearing, Garcia's counsel asked the court to conduct an in camera review of Denor's medical records concerning her medication and to see if she made any statements regarding the shooting. In denying that application the court noted that it had already conducted an in camera review of Denor's medical records from a mental health association and noted that there was "very little in it." The court record is silent as to when the records were provided to the court, what the medical records contained, or what period of time the records covered. These records were not preserved and nothing contained in those records was ever disclosed to the People or defense counsel.^[FN8] Although defense counsel cross-examined Denor at length about the drugs and their effects on her at both the hearing and trial, they had only Denor's own testimony that she was medicated for depression and for nothing else.

Although Garey was an eye witness to the shooting he was not called as a witness at the trial. In fact, there was no documentation that Pezzullo had followed up and interviewed Garey after the night of the shooting. Nor was there any indication that Garey ever participated in an attempt to identify the shooters. At the Wade hearing Pezzullo testified that Denor feared for her safety and he believed that she did not want her son to participate in the investigation. He also testified that it was possible he told Denor that they would not need her son as a witness if she went to the precinct to view photographs.

Both before and during the trial, Garcia's attorney raised an issue concerning the admissibility of documents from the Dominican Republic which established that Garcia was in jail in the Dominican Republic and was not released until the afternoon of July, 16, 1991, the day of the shooting. Garcia's attorney argued that the documents should be admissible based on the certification from the United States Consulate. The People opposed the documents' admission, arguing that even if the documents were authentic, they did not provide a complete alibi for Garcia since he had sufficient time after his release to fly back to New York and shoot Cesar Vasquez. Defense counsel never briefed the issue, as the trial court instructed, and never renewed his argument for admission. The only evidence of Garcia's alibi introduced at trial was the testimony of Griselda Vasquez ("Vasquez"), the victim's sister. Vasquez testified that her [*6]brother and Garcia were friends and that on the evening of the shooting she spoke with Garcia on the telephone. Although the witness did not dial the number herself she believed she was speaking to Garcia in the Dominican Republic. She also testified that she did not know defendant Morillo, but when she looked out her window after hearing gunshots she observed a man who was not defendant.

Garey testified forthrightly and at length about his criminal history and his drug addiction. At the time of the murder, when he was fourteen, he had been arrested at least once for assaulting a homeless man on a train. When he was twenty-one he started using heroin and was convicted numerous times in New Jersey for thefts he committed to support his habit. Garey claimed that he currently smokes marijuana only once a week, having gone through court-ordered drug rehabilitation in 2004. He indicated that in 1991 his relationship with his mother was both physically and mentally abusive. He knew she had psychiatric problems and had been hospitalized once, although he did not know the nature of her problems. He candidly testified that he had been molested when he was nine to eleven years old. He had been sent for counseling and had been labeled emotionally disturbed. Garey also testified that he has not seen his mother or spoken to her in three years.

In recalling the night of the shooting, Garey testified that around midnight on July 16, 1991, he was hanging out with friends in front of his building. He saw a car pull up and observed two men in their early twenties wearing jeans and dark hoodies get out of the front and rear passenger seats. The lighting conditions were good so Garey got a good look at the men's faces when they walked past him, ten to fifteen feet away. He did not see the driver get out of the vehicle, and the brake lights stayed on, suggesting that the driver remained in the vehicle throughout the entire incident. Both men had dark brown complexions, but one man was lighter than the other. Garey testified that one man had a light mustache and the other had no facial hair. One was tall and lanky and the other was short and skinny. Garey heard gunshots about five seconds after the men entered the courtyard, and he saw the two men turn around and run back toward him. When he saw a gun, Garey ran to a friend's apartment but returned within a few minutes to the courtyard. He saw his mother up in the window of their apartment, not in the courtyard. Garey testified that he started cooperating with the police that night and told them that he witnessed the shooting.

Garey further testified that, at some time after the shooting, he went to the 50th Precinct with his mother to speak to Pezzullo. Garey told the detective that he could identify the shooters, and he looked through a book of mug shots. Pezzullo also showed him two single photos and asked if it was "these two guys" to which Garey said no. When Pezzullo kept asking him about the two men, despite Garey's insistence that they were not the shooters, Pezzullo threatened that he could revive a prior assault and robbery charge if Garey did not cooperate. Denor then intervened, told Garey to wait at the entrance, and spoke to Pezzullo for about fifteen minutes before shaking his hand and leaving. She told Garey not to worry about it and that she would take care of it. Garey testified that he never spoke to the police again.

After the shooting, Garey did not know that investigators were looking for him. After [*7]moving to New Jersey, he avoided speaking to investigators until about fifteen or sixteen years after the murder. Garey testified that investigators for defendant located him and he agreed to talk to them because "it just seemed like the right thing to do." After being shown a picture of defendant Morillo from 1991, Garey stated with certainty that Morillo was not one of the shooters and looked nothing like either of the shooters.

Trial Counsel Ramon Pagan

Defendant's trial counsel, Ramon Pagan ("Pagan"), testified that he first learned that Garey was an eyewitness from Denor's testimony at the Wade hearing. He considered calling Garey as a witness at trial because he expected Garey to say that defendant was not one of the shooters, although he did not explain why. Pagan claimed that he was prevented from calling Garey because the trial judge prohibited the defense from going to Denor's home, sending an investigator, or even speaking to her. He testified that Assistant District Attorney William Zelenka ("Zelenka"), the trial prosecutor, represented to the court that Garey was not relevant and did not see anything, and Zelenka threatened to prosecute a defense investigator, who went to her home, for harassment. Pagan recalled that he tried to fill out a "so ordered" subpoena in court for the trial judge to sign, but that the judge said, "you're not doing this . . . the People say he's not relevant and that was it." Pagan also claimed that the prosecutor said he would make Garey available but never did. Pagan testified that he never received any Brady material regarding Garey, and that he never received a DD5 documenting any police interview or identification procedure with Garey.

Pagan also testified that he first learned of Denor's use of valium and thorazine when she testified, and that the prosecutor simply said that he did not have any information about her mental health condition and that it was not relevant. Although the trial court conducted an in camera review of Denor's mental health records, Pagan was never shown any medical records concerning her diagnosis or treatment.

Penny Denor (Cameron)^[FN9]

Denor took the witness stand with the use of a cane and in obvious pain. During the course of her testimony she revealed that she has suffered two strokes, and is suffering from heart disease and breast cancer. She testified that she came to court against her doctor's advice because she did not wish to die knowing that she had lied and had kept an innocent man in jail for something he did not do. Denor was emotional throughout her testimony, at times becoming angry and frustrated, and at other times breaking down and sobbing.

Denor's testimony contradicted her Wade and trial testimony in a number of respects. She adamantly denied a number of significant facts that are not disputed by the parties and that are supported by the trial record. For instance, Denor became combative when questioned about whether she wore a ski mask to view one of the lineups in this case. She denied wearing a ski mask even when she was confronted with her trial testimony. She denied picking out a photo of a third person at the NYPD Catch unit when she herself testified at trial that she did, and she testified that she only saw two men that night. Denor even claimed that she asked Zelenka and Pezzullo to see the judge but they would not let her, and that she would have told the judge that [*8]she had never seen defendants and was being forced to identify them. The trial record, however, clearly indicates that she and Zelenka spoke to the judge to complain about a defense investigator and Denor said nothing about being forced into testifying.

Yet in a chilling and moving address made directly to defendant she apologized and begged for his forgiveness. Denor testified that she prays to die for what she did to defendant. Near the end of her testimony, Denor implored the court to believe her and testified that she would deny herself a funeral to punish herself for her lie and for what she did to defendant.

Denor testified that she never saw defendant on the night of the murder and that her identification of him was a lie. She claimed that Pezzullo forced her into identifying defendant because she believed that if she did not cooperate something bad would happen to her son, her "baby." Regardless of what she testified to at trial, when she looked out her fourth floor window on the night of the shooting she saw two men come out of a white car. She could not have seen their faces from that distance unless it was someone she already knew, such as her son Johnny. She claimed that she did not want to cooperate that night and believed that Pezzullo picked on her because she was the only white person in the building. She also claimed that he told her that if she did not tell him what she saw he would make it very rough for her son. She testified fervently that her only desire during the murder investigation was to protect her son, that she was frightened that something might happen to him, and that her choice was either to participate or lose her son "one way or another." Garey had been in and out of trouble, and she revealed that he and his brother had been molested by a camp counselor just weeks before the shooting.

Denor also testified that she saw pictures of both defendants in Pezzullo's car prior to going to the Catch unit to look at photos. She had never seen either defendant before. Although the detective did not say anything to her about the pictures, she felt that he was making sure she was looking at them by leaving them in plain view. She said that Pezzullo told her to remember the face when she was brought into the Catch unit, and that she looked at pictures until she found the pictures of the men she saw in the detective's car. She further testified that at the two lineups in this case she chose the men who looked like the men in the pictures she saw in Pezzullo's car.

Denor testified that the identifications she made of defendants at trial were lies. She claimed that Zelenka told her that she had to identify the defendants in court and that he would lose the case if she did not. When questioned about her in-court identification of Garcia and her inability to identify Morillo at the same time, Denor suggested that she could not really see the defendants in court because of the distance between them. She stated that she identified Garcia in court because of the picture she had seen, and that she did not initially identify Morillo because he had short hair at trial and he no longer looked like he did in his picture. She also testified that Zelenka told her which defendant was which on the way back to his office during the lunch break, that he told her not to forget that she had to identify them, and that he was nice enough to buy her lunch. Finally, she testified that she would have identified anyone to protect her son.

Denor testified that she did not speak to any of the investigators who attempted to contact her after the trial. It was not until she was visited by current counsel, approximately fifteen years after the conviction and after many visits from investigators, that she told anyone that her trial testimony was a lie.

Neither party chose to ask Denor questions about her psychiatric history, instead [*9]consenting to the admission of Denor's psychiatric records which covered the period from June 1993 through September 2010. Although the records begin about two years after the murder and about six months after Denor's trial testimony, the records are troubling for what they reveal of Denor's past history. Significantly, the records indicate that Denor had two prior hospitalizations for breakdowns, and that her treatment with thorazine began following one of these breakdowns. As of June 1993, Denor's diagnosis was major depression with psychotic features, along with anxiety disorder. The records also reference memory impairment and note that Denor was not a reliable source of information because of her inability to remember events accurately. Denor also reported a past history of hallucinations and delusions. As of the last dates of the records, Denor was taking valium and antidepressants for panic disorder and anxiety. The more recent notations also indicate Denor's progress, despite coping with serious medical issues.

Video Evidence

Defendant introduced video evidence from April 4, 2011, through the testimony of two investigators, to demonstrate the extreme difficulty in the human eye seeing any facial features from the fourth floor bedroom window that Denor was looking out of at the time of the shooting.

Investigator Photographer Wayne Summerlin ("Summerlin") videotaped the front of Denor's building from the fourth floor window using a video camera with infra red night vision. He filmed in both regular and night vision at approximately 9:30 or 10 pm. He filmed from two bedrooms facing Bailey Avenue, with the camera pointed down to the front of the building where the cars were parked next to the curb. The video using night vision captured many details from the street below but faces were not distinguishable. The regular video without night vision was noticeably darker.

Defense Investigator Edwin Ramirez ("Ramirez") was present with Summerlin at Denor's apartment. He described the layout of the apartment, that there were three flights of stairs to the lobby and into the courtyard from the fourth floor bedroom in Denor's former apartment, and explained that he and two defense attorneys got into and out of a double-parked car on the street so that Summerlin could video tape it.

Carol Sharpe

Carol Sharpe ("Sharpe"), a former Assistant District Attorney in Bronx County, testified that in 1991 she was prosecuting a murder case when she was contacted by a witness in that case, Gabriella Pena ("Pena"), who had information regarding the death of Cesar Vasquez. Sharpe testified that in her investigation she learned that Garcia was a drug dealer and Pena was Garcia's girlfriend. Pena had information from the deceased's sister regarding a description of one of the shooters, and based on that description Pena believed that one of the Felix brothers, a drug gang known to the narcotics bureau of the Bronx District Attorney's Office, may have killed Cesar Vasquez. Sharpe contacted Pezzullo with this information and arranged for the detective to meet with Pena. Before that meeting, which took place some time in early October 1991, Sharpe had several conversations with Pezzullo. In one of the conversations, Pezzullo indicated that Garcia had already been identified as the person who killed Cesar Vasquez. Sharpe was present when Pena met with Pezzullo in his car and Pena told him that Garcia was in the Dominican Republic at the time of the shooting.

The Co-defendant's Alibi

The parties stipulated in evidence the transcript of Garcia's habeas hearing in federal [*10]court. This hearing included testimony from a number of witnesses, called by Garcia, who testified that Garcia was present in the Dominican Republic in the days prior to, and after, the shooting. Over the People's objection, the court admitted in evidence at the 440 hearing the certified bail and police documents from the Dominican Republic, as well as their English translations, as foreign documents pursuant to CPLR §4542. These documents established that Garcia was arrested leaving the Dominican Republic on a flight to New York on July 15, 1991, using a false passport under the name "Ferdinand Caraballo." The court also admitted copies of Garcia's marriage certificate and the birth certificate of his son, which include the same identification number for Garcia that is listed on the bail and police documents. Certified copies of U.S. State Department Cables were also introduced in evidence. These documents demonstrated that Garcia was again arrested, at Los Angeles airport, in August 1991, as he attempted to illegally enter the United States using a Panamanian passport issued in the name of "Toribio Bonilla-Gudino."

Anabella Pouriet

Annabella Poueriet, the owner of Annabella Tours in Bronx County, authenticated a copy of a round-trip airline ticket to the Dominican Republic as the one she issued to Garcia on June 21, 1991 under the name of "Ferdinand Caraballo." Although she had not seen Garcia in twenty years, she identified him from a picture at the hearing as the man she knew as Ferdinand Caraballo. The travel dates for the ticket were June 22, 1991, with a return date of July 18, 1991.

The People's Evidence

Assistant District Attorney William Zelenka

Assistant District Attorney William Zelenka was assigned to this case shortly before it was set for trial. Zelenka testified that he spoke with Denor about the case several times, and that he always had a good relationship with her. As to Denor's emotional state, Zelenka testified that at trial Denor had several outbursts in front of the jury where she broke down crying during a very aggressive cross-examination and ran out of the courtroom screaming. Zelenka had to find her and bring her back to the courtroom. Zelenka testified that he knew that Denor was taking anti-psychotic drugs, but that he did not know for how long or whether she had been hospitalized for breakdowns, subjected to electric shock treatment, or what her diagnoses had been. Zelenka never saw the medical records that were reviewed by the court, and he never discussed Denor's psychiatric problems with her. Zelenka only knew that Denor had lived a rough life. He did not know if she had been abused, but he did know that her son had been subjected to abuse in what he termed a "rather severe incident."

The day Denor was to testify she told Zelenka that an investigator came to her home the evening before. Denor was very upset by this and Zelenka brought this concern to the trial court's attention. Zelenka remembered meeting with the judge, along with Denor and defense counsel, and he believed that the judge prohibited anyone from the defense going to Denor's home. Zelenka did not believe that the court prohibited anyone from approaching Garey.

Zelenka recalled that at trial Denor identified the co-defendant in court, but did not identify defendant Morillo until after the lunch recess. During the lunch recess, he explained to her that he could not speak to her because she was still under cross-examination. He denied ever telling her that she had to identify defendant, only that he told her that so long as she told the truth, "that's what we're after." [*11]

Denor called Zelenka two to three years after the trial to ask why he sent investigators to talk to her about the case. He told her that he did not. He recalled that Denor called him every year or two after the trial to tell him that detectives kept visiting or calling her about the case. She also told him that she was getting phone calls, that she believed were connected to the case, that were meant to harass her and scare her. Zelenka testified that, as the years passed, he could tell that Denor became more and more concerned about being approached and repeatedly asked to be interviewed about the case, and that he had an investigator from his office contact her to look into the phone calls. He repeatedly told Denor that she did not have to speak to anyone. Zelenka testified that, during their last phone call in 2007, Denor screamed at him and told him that she had enough and could not take it anymore, to which he responded that she had to stop letting them in. At no point after the trial did Denor tell Zelenka that she was recanting her testimony, that she testified the way she did because Pezzullo wanted her to, or that she did so to protect her son. According to Zelenka, Denor never said anything to make him question the validity of her trial testimony.

Zelenka testified that he never met or spoke with Garey during the course of his trial preparation because Pezzullo told him that Garey was not willing to cooperate or be involved. He had no recollection of the defense asking him to make Garey available, but testified that if they wanted to speak to a witness they were free to do so. In direct contradiction to the trial record, Zelenka testified that he did not, and would not, have arranged for Garey to meet with defense counsel.^[FN10]

Retired Detective Anthony Pezzullo

Pezzullo was a grudging witness who was frequently abrupt, argumentative, and evasive. He often contradicted himself while testifying, as well as contradicting his prior hearing and trial testimony. Significantly, Pezzullo testified that it was standard procedure to document all identification procedures or any important steps in an investigation with a DD5, and that it would be inappropriate to show a witness a single photo of a potential suspect. Yet he testified throughout the 440 hearing that he failed to document numerous identification procedures, failed to document an interview he had with Garey, an eyewitness to the shooting who told him he could identify the shooters, and also showed Denor single photos of potential suspects.

Pezzullo testified that Denor and Garey were at the crime scene when he arrived on the night of the shooting. Denor gave him a brief description of the shooters but did not continue talking to him once her son came over and, in fact, directed him not to talk to her son. That night Denor told him that the shooters were black males, but at some later time she changed the description to Hispanic males. The detective never documented the change in description. He claimed that at some point Denor described one of the shooters as a male Hispanic, about five feet seven inches tall, with a dark complexion, and another one as male Hispanic with a medium complexion. According to Pezzullo, Denor's description became more detailed after the night of [*12]the homicide but he never documented the evolving descriptions in any way. In a circular and contradictory fashion, he testified that she must have changed the descriptions after the Wade hearing, that he felt as if she was "jerking him around" and looking to get something out of the case, and that he did not trust her until after she picked out the photographs at the Catch unit.

Pezzullo testified that Denor was too afraid to go to the precinct in the weeks after the shooting, and that he met her and took her to a different location to talk. In one meeting, he showed her about twelve to fifteen photos, including two photos of individuals known as the Felix brothers, whose names had come up during the investigation. Pezzullo testified that there were no pictures of either defendant in this group of photos. He also testified that he showed Denor single photos instead of conducting a photo array, while admitting that it was improper to show single photographs to an eyewitness. Denor did not identify anyone, and Pezzullo acknowledged that he never prepared a DD5 or documented this meeting and identification procedure in any way. The detective picked up Denor another time and brought her to the precinct to view more photographs, also with negative results. Contradicting his own testimony, Pezzullo later testified that before he ever showed Denor pictures of the Felix brothers, Denor went to the precinct with her son, at which time he showed her some pictures with negative results. Again, this was never documented.

In all, Pezzullo admitted to showing Denor photographs at least three times before she made the identifications at the Catch unit — once at the 50th Precinct with her son, once at the 44th Precinct, and once in his car when he showed her single photographs of the Felix brothers. He failed to document any of these meetings.

On September 26, 1991, the detective brought Denor to the Catch unit to look at additional photographs. It was there that she identified three individuals, defendant Morillo, Garcia and another individual. Denor was only 90% certain of the third photo, but Pezzullo did not document this. Pezzullo testified that he followed up on this third person, that he was eliminated as a suspect for some reason,^[FN11] and yet he did not document, or even disclose to the People, that Denor was incorrect about that third identification.

Pezzullo subsequently arranged for Denor to view two separate lineups where Denor identified defendant Morillo and Garcia.

About four or five weeks after the shooting, Pezzullo asked Garey if he would go to the precinct to view photographs, which he did. Denor was present as well. Pezzullo testified that Garey was acting like a clown and Pezzullo did not believe Garey was taking the matter seriously because he was laughing about people he recognized in the mug shot book that Pezzullo showed him. Pezzullo believed that Garey was making a mockery of the system. Garey did not identify anyone that day. Although Pezzullo knew that Garey saw the shooters walk into the courtyard on the night of the murder, Pezzullo admitted that he did not create a DD5 to document this interview or identification procedure. Interestingly, Pezzullo could not remember if Garey viewed any photographs when he testified at the Wade hearing only a year and a half after the shooting, and yet he remembered, in such detail, that Garey did view photographs and was acting [*13]like a clown, twenty years after the shooting. When Pezzullo was deposed eighteen years after the shooting in a civil suit filed by Garcia, he testified that Garey probably did not view any mug shots because it would have been documented. Pezzullo testified that he never threatened Garey and that he did not know that Garey had any prior involvement with law enforcement. He also denied ever telling Denor that he would make life difficult for her son if she did not cooperate.

By August of 1991, before Denor looked at photos at the Catch unit, Pezzullo had requested photos of the Felix brothers, who were "persons of interest" in the investigation.^[FN12] According to Pezzullo, at that time Morillo and Garcia were already his primary suspects. Although he later testified that Morillo and Garcia did not become suspects until after he spoke to Pena, he admitted that the meeting with Pena did not occur until October 1991, after Denor made her identifications at the Catch unit. On cross-examination, however, Pezzullo admitted that the defendants became suspects after he spoke to an officer at the Major Narcotics Bureau and that he did, in fact, have a photo of defendant Morillo in his case folder, which was with him when he brought Denor to the Catch unit to look at photographs "hoping" to get a suspect. He testified that he did not show Denor the photograph of defendant, and he maintained, at several points during his cross-examination, that it would be improper to show a witness a single photograph.

Detective Investigator Modesto Acevedo

Detective Investigator Modesto Acevedo ("Acevedo") of the Bronx District Attorney's Office testified that he was assigned to work on the federal writ brought by Garcia. Acevedo became involved with defendant Morillo's case in 2006, when he was asked to contact Denor about the people who were visiting her and claiming to be detectives. Acevedo spoke to Denor by phone in late 2005, and met with her personally at her home in New Jersey in June 2007. He determined that the people Denor referred to as "detectives" were private investigators working on Garcia's case. Acevedo testified that Denor kept rambling and that he had to keep asking her questions to get a story about what was going on.

Denor also called Acevedo on June 6, 2007 and told him that she received some threatening phone calls, but he could not determine the nature or source of the calls. He contacted someone he knew from the Ocean County prosecutor's office to see if they could be of assistance, and they sent a police officer to her home to speak to her to see if they could determine where the calls came from. Acevedo visited Denor a few months later, but Denor had no further contacts from anyone claiming to be a detective or from anyone related to the homicide. Acevedo had no further contact with Denor.

Defendant advances several claims of newly discovered evidence and argues that each is [*14]a basis to vacate the judgment pursuant to CPL §440.10(1)(g). 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. (People v Salemi, 309 NY 208, 215-16 [1955], cert denied, 350 US 950 [1956]; People v Reyes, 255 AD2d 261, 263 [1st Dept 1998], appeal denied, 92 NY2d 1053 [1999], cert denied, 549 US 1260 [2007]; People v Latella, 112 AD2d 321, 322 [2d Dept 1985], appeal denied, 65 NY2d 983). 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. (People v Tucker, 40 AD3d 1213, 1214 [3rd Dept 2007], appeal denied, 9 NY3d 882; Latella, 112 AD2d at 322).

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.^[FN13] 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 vacatur, each provide strong corroboration for Denor's recantation of her identification.

Denor's Recantation

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.^[FN14] In determining whether the recantation is a basis to vacate defendant's [*15]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. (People v Shilitano, 218 NY 161, 170 [1916]; People v Bermudez, 243 AD2d 367 [1st Dept 1997] [citing Shilitano], appeal denied, 91 NY2d 923 [1998]; Tucker, 40 AD3d at 1214). If true, however, a recantation may "destroy the basis upon which the judgment of conviction rests." (Shilitano, 218 NY at 170).

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. (People v Wong, 11 AD3d 724, 725-26 [3rd Dept 2004] [citing Shilitano, 218 NY at 170-72]).

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 [*16]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.

As to Pezzullo, it is difficult to rely on much of his testimony since his answers frequently changed depending on how a question was asked. It appeared to the court that he frequently did not care whether his answers were accurate or not. It is particularly difficult to rely on his testimony when he showed utter disregard of his professional obligations as a detective to memorialize significant steps in his investigation, such as an interview with Garey, an eyewitness, and numerous photo identification procedures he employed with Garey and Denor. His claim that he would never show a witness single photos of defendant before the witness viewed photos in the catch unit, when he apparently did that with both Denor and Garey with the Felix brothers suspects, makes his testimony particularly unreliable.

While there are many troubling aspects of this case, it is particularly troubling to the court that Pezzullo so quickly and impatiently dismissed Garey as a clown. Contrary to what Pezzullo told Zelenka, Garey was, in fact, a cooperative witness, a witness to the shooting from a better vantage point than his mother, and who indicated that he could identify the shooters and attempted to do just that by looking through photos. Whether Pezzullo rejected him as a witness, or agreed with Denor to keep her son out of the case, it is disturbing that his evidence and potential identifications, or non-identifications, were never pursued at that time.

On the critical issue of whether Denor viewed a photo of defendant before going into the catch unit, the court notes that at the Wade hearing, when Denor was a cooperative prosecution witness, she insisted that she had inadvertently seen a photo of defendant before viewing other photos. Nineteen years later, she is consistent in testifying that she did, in fact, see that photograph. Pezzullo himself admitted at the hearing that he had a photo of defendant before bringing Denor to the catch unit and that he would have brought it in his case folder to the Catch unit.^[FN15] [*17]

It is deeply troubling that Pezzullo previously denied, at the Wade hearing, speaking to Denor's son at the precinct, when he now admits that he did — a fact corroborated by Denor's and Garey's testimony.^[FN16] It appears that Pezzullo dismissed Garey as a witness because of his belief that Garey was not being serious, and the court credits the claims by Denor and Garey that, in fact, Pezzullo aggressively threatened to revive charges against him but that Denor then intervened. In this regard, it is also not credible that Pezzullo, with his many years of experience, would not have checked the background of his potential witnesses and knew nothing of Garey's prior conflicts with the law.

Pezzullo's testimony regarding the many changes in Denor's description of the gunmen is likewise suspect for its lack of documentation, his claim that it must have changed after the Wade hearing, and that he did not trust what Denor was telling him until after she viewed photos and made an identification — something that occurred long before the Wade hearing. If Denor did not change the description until after the Wade hearing, then her identifications at the Catch unit would have, necessarily, been based on the male black description.

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." (Wong, 11 AD3d at 726). Nor [*18]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 was perceiving 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. Although Pezzullo denied that he threatened Denor's son to coerce her participation, [*19]and it is not clear, even from Denor's testimony, how exactly her son was in jeopardy, it is apparent that Denor believed that she had to cooperate to protect her son. Even Pezzullo testified at the Wade hearing that it is possible that he told Denor that they really would not need her son as a witness in the investigation if she went to the precinct to view photos. This is further corroborated by Garey's testimony, who testified that he spoke to Pezzullo at the precinct, and that the detective threatened to revive some criminal charges if Garey did not cooperate. Garey also testified that he got into an argument with Pezzullo, that his mother took over and spoke with Pezzullo for about fifteen minutes, after which she shook the detective's hand and told her son not to worry about it and that she would "take care of it." Although Garey told Pezzullo that he could identify the shooters, he never spoke to a police officer about the shooting again. 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.

Denor compellingly testified that, because of her deteriorating health, including heart disease and cancer, she spoke to current defense counsel several years ago and told the truth. She testified that she was getting sicker and sicker and could not live with herself any longer. She also testified that she hated herself for twenty years and would have stepped forward sooner but had to make sure her son was "old enough to get out of the way" — another reference to her belief that she had to lie to protect her son.

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 motive [*20]for 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.^[FN17]

Garey's Testimony

It is not disputed that Garey was an eyewitness to the shooting who was in a better position to see the shooters than Denor. His current testimony that defendant was not one of the gunmen he saw that night is clearly material, not cumulative, and not merely impeachment testimony. This testimony is also of such character that it would probably have led to a more favorable verdict had it been received at trial. For the following reasons, however, the court finds that defendant has failed to meet his burden of demonstrating that he could not have, with due diligence, presented this evidence at trial. (CPL §440.30[1]).

Defendant argues that counsel's efforts to interview Garey were thwarted at every turn. First, defendant claims that counsel was ordered to stay away from Garey's residence during the trial and that they could not send investigators to the home because Denor did not want to talk to anyone. Defendant also argues that counsel requested that the court direct the People to arrange for Garey to be interviewed, but the court denied that request, and that the prosecutor refused that request as well. Finally, although Zelenka subsequently offered to see if an arrangement could be made for counsel to speak to Garey, defendant argues that Zelenka never made that possible and did not respond to counsel's efforts to avail himself of the offer. At the hearing, Pagan testified that he attempted to prepare a subpoena for the court to sign that would direct Garey to appear, but the court told counsel that he "was not doing this." Pagan did not know if this was in the record, but it was his recollection of what occurred.

In contrast, the People argue that Garey was available to the defense prior to trial. The People contend that defense counsel did not avail himself of the opportunity to work out an arrangement with the People, as Zelenka offered. The People also argue that a subpoena was never sought for Garey's production, and the fact that Denor did not want anyone to speak to her son does not make his current testimony newly discovered evidence.

The due diligence requirement must be "measured against . . . defendant's available [*21]resources and the practicalities of the particular situation." (People v Tankleff, 49 AD3d 160, 180 [2d Dept 2007] [citations omitted]). Despite the obvious difficulties for defendant in this case, the record reveals that trial counsel Pagan's conduct fell far below what is required for due diligence under the statute.

Although Pagan testified, and the People conceded at trial, that the trial judge issued a stay away order that prohibited the defense from sending any investigator to Denor's home, it is clear to the court that there were other available alternatives. Based on a review of the record, it appears that the defense first learned that Garey was an eyewitness based on Denor's testimony at the Wade hearing, only weeks before trial. The record of the Wade hearing establishes that Zelenka would not disclose Garey's address to the defense, and that the court declined to direct the People to make him available to be interviewed by a defense investigator. Although Garcia's counsel asked if he could submit a "blind subpoena" for Garey, presumably because Zelenka would not disclose his address, the court asked the People why Garey was not called as a witness without responding to the subpoena question. Zelenka's response was that the People were under no obligation to provide every single witness that may have observed the crime. Neither defense attorney followed up on the possibility of serving a subpoena or even attempting to serve a subpoena on Garey's last known address.^[FN18]

The trial record establishes that Denor spoke to the court to complain about a defense investigator who frightened her and made her nervous when he showed up at her apartment late in the afternoon the day before she was to testify.^[FN19] After the inquiry, the court indicated that it found the timing of the investigator's interview attempt suspicious and made a reference to witness intimidation, and told counsel that they were not to send any investigators "around to see her." Defense counsel did not raise their need to subpoena Garey at that time.

Moreover, although Pagan testified at the 440 hearing that he started to prepare a subpoena for the court but was told "you're not doing this" by the judge, this claim is actually belied by the trial record. During the charge conference Pagan argued that he could not have served a subpoena because his process server would have been in violation of the court's order to stay away from Denor's home. When the court indicated that it was never presented with a subpoena for Garey, Pagan stated, "That's correct. We were ordered to stay away from Miss Denor's house." The court then took issue with Pagan's statement, explained the reason for ordering the defense to stay away from Denor and, again, noted that "[a]t no time did counsel ever present this court with a subpoena for . . . the young man . . . ." This entire exchange suggests that process servers were never precluded from going to Denor's home, and that counsel could have returned to the judge for a subpoena.

The trial record also establishes that at some point after the initial defense request for the [*22]People to make Garey available to be interviewed, Zelenka agreed to try to work out an arrangement to have Pagan interview Garey at the district attorney's office. Although each side now claims that the other side did not follow up, Pagan's own statement to the court establishes that he did not follow up and that he blamed Zelenka for not calling him with the arrangements. It was incumbent on defense counsel to make these arrangements with Zelenka.

Accordingly, the motion to vacate based on Garey's proposed testimony as newly discovered evidence is denied pursuant to CPL §440.30(4)(b) due to defendant's failure to substantiate that he could not, with due diligence, have produced this evidence at trial. Despite this holding, the court finds that Garey's account of the shooting, and of what transpired with Pezzullo at the 50th Precinct concerning the detective's threat to coerce his cooperation, strongly corroborates Denor's belief that she had to cooperate to protect her son and provides further credence to her recantation.

The Video Evidence

The court similarly denies defendant's motion to vacate based on the video evidence presented at the 440 hearing. Although the evidence establishes that it would be extremely difficult for the human eye to see any facial features from the fourth floor bedroom window that Denor was looking out of at the time of the shooting, defendant has failed to establish that he could not, with due diligence, have produced this evidence at trial. As the trial court noted, defendant could have made a discovery motion to obtain this evidence. Having failed to do so, the court finds that the proffered video is not new evidence. The court notes, however, that the video constitutes additional corroborative evidence to Denor's recantation testimony that she could not see any faces from her fourth floor window.

The Co-Defendant's Alibi Evidence

Defendant next argues that vacatur is warranted by the new documentary evidence and alibi hearing testimony that strongly suggests that Garcia was in the Dominican Republic at the time of the shooting. It was Garcia's trial counsel's failure to follow up on the admission of these documents that formed the basis for the finding of ineffective assistance of counsel and the District Court's granting of federal habeas relief to Garcia.

In essence, defendant argues that the misidentification of Garcia by Denor constitutes new evidence of his own innocence in that it would seriously undermine the accuracy of his identification by Denor. Although the court agrees with the premise of defendant's argument and finds that the alibi evidence provides further corroboration to the recantation, the court holds that the alibi evidence is not new evidence within the meaning of the statute.

The court acknowledges that although defendant's attorney was not in possession of these documents at trial because they pertained to Garcia, trial counsel knew about them because they are referred to in the trial transcript. It is also clear from the trial record that Garcia's attorney neglected to follow up on introducing this evidence before the jury. However, the parties not only knew of the bail documents at the time of the trial, Garcia's attorney appended them to his alibi notice and sought to introduce them. Therefore, while these documents provide relevant and material evidence of a possible misidentification, defendant Morillo cannot now claim that they are new evidence in that they could not have been discovered before trial with due diligence.

In terms of Denor's recantation, however, the court finds that these documents seriously undermine the identification of Garcia and, necessarily, calls into question whether Denor saw [*23]either defendant on the night of the shooting. As to the People's argument that he could have come to New York after being released from jail in enough time to commit the crime, the court agrees with defendant that even if there was a flight that would have arrived in New York in time, it is extremely unlikely that someone who was arrested the day before for attempting to leave the country with illegal documents, would then be able to obtain another fraudulent passport so quickly and leave the country. The unlikelihood of the People's position is buttressed by the fact that Garcia was again arrested by the authorities only weeks later, attempting to enter the country via California using a Panamanian passport. When viewed in this light, the court finds that Garcia's alibi evidence provides considerable support to Denor's recantation.

Brady Violation

Finally, defendant argues that the People's failure to disclose that the third person identified by Denor was ruled out as a suspect constitutes both new evidence and a Brady violation that warrants vacatur of his conviction. For the following reasons, the court disagrees.

Although defendant clearly knew, before trial, that Denor picked out a third person at the Catch unit and told Pezzullo that she was not sure if it was the third person involved with the shooting, it was not until the 440 hearing that Pezzullo acknowledged that this third person had been ruled out as a suspect and that he failed to disclose this information to the People. Given that Denor was 90% certain of the third person she identified, it is without question that the misidentification was material evidence. Furthermore, based on Pezzullo's 440 hearing testimony, the court finds that the elimination of this third person as a suspect clearly constitutes new evidence that could not have been discovered, with due diligence, before trial. This evidence alone, however, is not of such character that the verdict would have been more favorable to defendant if it had been received at trial. (CPL §440.10[1][g]).

Moreover, although the court finds that the failure to disclose this information was a Brady violation, it does not warrant relief pursuant to CPL §440.10(1)(h) as a violation of defendant's due process rights. While it is apparent from Pezzullo's testimony that he withheld this information from the People as well as from the defense, the suppression of evidence that is favorable to a defendant violates due process where it is material to defendant's guilt or punishment, regardless of whether there was good or bad faith by the prosecution. (Brady v Maryland, 373 US 83, 89 [1963]). However, a new trial is warranted only where there is a constitutional error in the sense that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" (People v Chin, 67 NY2d 22, 33 [1986] [quoting United States v Bagley, 473 US 667, 682 [1985]]); see also People v Tucker, 40 AD3d 1213, 1216 [3rd Dept 2007], appeal denied, 9 NY3d 882). Having already determined that the misidentification of a third person alone is not of such character that the verdict would have been more favorable to defendant if it had been received at trial, the court finds that the Brady violation is not of a constitutional dimension that would warrant a new trial.

The nature of the evidence that Pezzullo admittedly withheld, however, provides additional support for the relief sought. In conjunction with the recantation testimony and Garcia's alibi evidence that tends to establish that he was out of the country on July 16, 1991, the fact that Denor incorrectly identified a third person, who she was 90% certain of and yet who could not have been a participant in the shooting, further corroborates the recantation, [*24]undermines her identification of defendant as one of the gunmen, and provides additional support for vacatur pursuant to CPL §440.10(1)(g).

Based on the foregoing, defendant's motion to vacate his conviction for Murder in the Second Degree is granted, and a new trial is ordered.

This constitutes the decision and order of the court.

Dated:October 6, 2011

Bronx, New York

_______________________________

MARGARET L. CLANCY, JUDGE