Defendant, Michael Vasquez ("Vasquez"), moved pursuant to Criminal Procedure Law CPL §440.10 (1)(g) on June 29, 2011, to set aside his conviction and sentence of October 7, 1997 and November 20, 1997, respectively, after trial by jury, for the crimes of Robbery in the First and Second Degree, on the grounds of newly discovered evidence. The People oppose Vasquez' motion.

CPL §440.10(1)(g) provides that the Court may vacate a judgment where

"New evidence has been discovered since the entry of a judgment

based upon a verdict of guilty after trial, which could not have been

produced by the defendant at the trial even with due diligence on his

part and which is of such character as to create a probability that had such evidence been received at trial that the verdict would have been more favorable to the defendant; provided that a motion based on such ground must be made with due diligence after the discovery of such alleged new evidence."

CPL §440.10(2) restricts the Court's powers to act under §440.10(1)(g) where the issue raised by the defense had been determined in an earlier appellate review or is an issue raised in a pending appellate review, or where there was an unjustifiable failure to raise the issue in an available appellate review.

Further, CPL §440.10(3) sets forth certain grounds of where the court in its discretion may deny a CPL §440.10 motion.

Prior Proceedings

Vasquez was indicted by a New York County Grand Jury on March 3, 1997 on one count of Robbery in the First Degree under Penal Law ("PL") §160.15(4) and one count of Robbery in the Second Degree under PL §160.10(3), arising out of an incident which occurred on January 11, 1997. The first count charged that on such date Vasquez forcibly stole property from Janette [*2]Andruiolo ("Janette") and in the "course of the commission of the crime. . . displayed what appeared to be a pistol." The second count charged that Vasquez on such date "forcibly stole a motor vehicle from" Janette.

A Huntley/Wade hearing was granted on defense motion. As the People subsequently withdrew their statement notice, no Huntley hearing was held. At the Wade hearing before Honorable Dorothy Cropper, Vasquez sought to suppress his pre-arrest identification by Janette and her boyfriend Raul Gonzalez ("Raul"). Judge Cropper denied Vasquez' Wade motion on July 14, 1997.

The case was tried before the Honorable David Saxe and a jury in four trial days from opening statement to verdict, in late September and early October 2007. The People presented three witnesses: Janette and two police officers. Vasquez did not testify or offer witnesses but submitted a photograph of himself as evidence. The jury found Vasquez guilty on both counts.

On October 16, 1997, prior to being sentenced, Vasquez moved pro se, under CPL §330.30, to set aside his conviction. New counsel was appointed and on November 20, 1997, Justice Saxe denied such motion. As Vasquez had been convicted of two prior violent felonies, Justice Saxe sentenced Vasquez as a mandatory persistent violent felon to twenty years to life on each count, to be served concurrently.

Vasquez appealed. In a memorandum decision filed January 7, 2000, the First Department affirmed the conviction, finding that:

"The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's determinations concerning identification. By placing his hand in a paper bag and pointing it at the victim, defendant displayed what appeared to be a firearm (see, People v. Baskerville, 60 NY2d 374).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them."

Vasquez' application for leave to appeal such decision to the Court of Appeals was denied by the First Department on February 2, 2001 .

Vasquez then moved the First Department, in the nature of a writ of corum nobis, for review of his conviction on the grounds of ineffective appellate counsel. The First Department denied the motion on September 20, 2001.

On February 22, 2009, Vasquez moved pursuant to CPL §440.10 to set aside his conviction on the grounds of ineffective trial counsel, and that his sentence was unauthorized by law. After reviewing such motion and the People's answer, this Court denied such motion by Decision and Order dated October 9, 2009.

Subsequently, this motion was made. As the motion raised questions of fact, which were disputed by the parties, as well as law, this Court held an evidentiary hearing (the "§440.10 Hearing") on the disputed factual issues allowing both the defense and the People to submit evidence and testimony and cross examine the witnesses. At the §440.10 Hearing the defense presented the testimony of Vasquez' wife ("Leticia"), Assistant District Attorney Bonnie Sard, Esq., Alfred Charlemagne ("Charlemagne", who was known at the time of the crime as "Chase"), Deborah Dearth, Esq. (Vasquez' attorney at his arraignment), and Rigoberto Gonzalez, Jr. ("Rigo, [*3]Jr."). The People called retired Police Detective Joseph Litrenta ("Litrenta" who was the case detective), Raul Gonzalez ("Raul" who was not related to Rigo, Jr.), and Janette.

The Crime

In the late afternoon of January 11, 1997, Raul drove his sister's car to Broadway and West 192nd Street in Manhattan and parked. He had three passengers in the car

Janette, Rigo, Jr. and his father, Rigoberto Gonzalez ("Rigo"). Raul and Rigo left the car to enter a building. Rigo, Jr. remained in the car with Janette. At about 4:45 p.m., a man approached the car displaying what appeared to be a gun, ordered Janette and Rigo, Jr. out of the car, and drove off with the car and Janette's purse which was in the car.

Janette promptly called 911 to report the crime, describing the gunman to Police Officer Gary Walker ("Walker"), who was dispatched by the 911 operator to the scene. She was later debriefed by Litrenta.

Alternate Narratives

While all parties agree that the events described above occurred, the parties present alternate narratives of what else took place at, or around the time and place in question, especially as to the roles of the four passengers in the car and Vasquez.

A. The People's Story was that Vasquez was the "man" who displayed what appeared to be the gun and stole the car and Janette's purse which contained about $700 from her just-cashed paycheck. This version was presented to the jury which convicted Vasquez. While the People acknowledge that the purpose of the visit to 192nd Street was for Raul to purchase drugs from Rigo, Janette's testimony was that she was neither aware of such purpose at the time, nor that Raul, her then boyfriend, was in the drug trade. When she learned after the crime that Raul was a drug dealer and that the stop was for the purchase of drugs, she broke up with him. Although she had never met Vasquez before the crime, she gave his name to Litrenta as the robber on January 12, 1997. This enabled Litrenta to retrieve Vasquez' mug shot from police files to create a photo array. Janette had been given Vasquez' name by Raul who had been told by Rigo that Vasquez committed the crime. Litrenta showed Janette the array on February 18, 1998 and she selected Vasquez' picture and subsequently selected Vasquez in a line up. At trial she testified that prior to her selection of Vasquez from the photo array, no one had shown her Vasquez' picture. Vasquez was then arrested, indicted, tried, convicted, and sentenced.

This narrative (except for how Litrenta learned of Vasquez and Janette's selection of Vasquez' photo from the array) was presented to the Jury by the People at trial. At trial, Janette identified Vasquez as the perpetrator; the only other trial witnesses were Litrenta and Walker. Although a material witness order was issued to compel Rigo, Jr. to testify, he was "in the wind" and did not appear at trial

B. Vasquez' Story was that he, Raul and Rigo knew each other since childhood. At around the time of the crime, Vasquez, who was on parole from an earlier conviction, and living in Florida, had returned to New York a few days earlier to meet with his parole officer, and was staying in Rigo's apartment in the Bronx. Rigo was engaged in the drug trade, but not too successfully. Rigo, Jr. who was then a college student, lived with his father, helping him from time to time in the drug trade as a driver, delivery boy or collector. Raul, who was also in the drug trade, was an active member of the Latin Kings gang. Rigo, Jr. testified that Rigo told him several days before the crime, that Vasquez suggested to Rigo that it would be easy to rob Raul [*4]by purporting to sell him drugs and stealing the cash Raul would bring for the purchase, but that Vasquez declined to do the robbery because he was on parole, and did not want to return to prison. Shortly before the day of the crime, Vasquez ran into an acquaintance at a Bronx Welfare Office (which was next door to Rigo's apartment) he then knew as "Chase" whom he had befriended several years earlier while both were serving time for other crimes in the same correctional facility. "Chase" visited Vasquez at Rigo's apartment and met Rigo who, independent of Vasquez, engaged "Chase" to hijack the car where Rigo knew Raul would have left the $16,000 he was bringing to purchase a kilo of cocaine from Rigo. Rigo, Jr., who was also a part of the robbery plan, was to sit with Janette in the car to keep her calm and to prevent her from observing the robber. Although Vasquez was in Rigo's apartment when Rigo engaged "Chase" to do the robbery, and was not privy to such conversation, he suspected after the crime that Chase might have been involved.

"Chase", after committing the crime and driving the car away, recovered the money for the cocaine deal from Janette's bag which was inside the car, wrapped in rubber bands, as well as an additional sum in a valise in the trunk of the car, which were proceeds of Raul's marijuana business. "Chase" split the cocaine money with Rigo but kept the marijuana money from the trunk of the car of which marijuana money neither Rigo nor Rigo, Jr. were aware. Rigo split the share of the proceeds of the robbery given to him by "Chase" with Rigo, Jr.

Rigo told Raul that Vasquez had been the robber, which information Raul passed on to Janette, which "fact" she passed on to Litrenta. Raul, later on the day of the robbery concluding that Rigo had set him up, returned to the vicinity of Rigo's apartment in the Bronx, and together with some of his friends "confronted" Rigo, Jr. Rigo, Jr. surrendered the portion of the proceeds he had received from Rigo wrapped in similar rubber bands. Raul subsequently confronted Rigo who also surrendered to Raul his portion of the proceeds. Rigo, a few days later, attempted to recover "Chase's" share of the proceeds from "Chase", which he emphatically declined to return.

The Trial

Vasquez' trial defense was to challenge Janette's identification of him as the robber by focusing on her statement that the robber had long hair. Vasquez claimed he had short hair at the time of the robbery. Janette made an in-court identification of Vasquez as the robber, and the jury rejected Vasquez' defense of mistaken identity.

The New Evidence

In 2011, about fourteen years after his conviction and upon having been transferred to Coxsakie State prison, Vasquez encountered his old friend "Chase" who had also been committed to such prison to serve a sentence as a mandatory persistent violent felon, following his conviction for burglaries, unrelated to the January 11, 1997 robbery. Only at that time did Vasquez learn that Charlemagne was "Chase's" real name. When Charlemagne asked Vasquez why he was in prison, Vasquez told him of the robbery. Charlemagne volunteered that he, Charlemagne, was the robber who displayed what appeared to have been a gun, forced Rigo, Jr. and Janette out of the car, drove the car away and split certain of the proceeds of such robbery with Rigo, who had put him up to do the robbery.

Vasquez' motion asserts that Charlemagne's 2011 admissions to him that Charlemagne had committed the crime, andVasquez learning of Charlemagne's real name for the first time at that time constitutes newly discovered evidence qualifying him for relief under CPL [*5]§440.10(1)(g).

C. The §440.10 Hearing: Vasquez' motion, supported by Charlemagne's affidavit, attesting to Charlemagne's being the robber, raises on its face a claim of newly discovered evidence. The People, however, both challenged the facts of the submission, as well as whether as a matter of law, the facts surrounding the "discovery" of such evidence were sufficient for such "evidence" to be deemed "newly discovered" for the purpose of CPL §440.10.

To resolve the factual issues, this Court ordered the §440.10 Hearing to hear testimony of fact witnesses under oath and to allow the opposing party to cross examine such witnesses. An extensive §440.10 Hearing was held over a series of days, following the rules of evidence, at which testimony was taken and exhibits were accepted into evidence or stipulated to by the parties. Following the closing of the evidentiary portion of the §440.10 Hearing, the parties submitted a memoranda in support or against the motion. The Court has received and reviewed such memoranda.

CPL §440.10 is a statutory safety valve which provides for a post sentence review of convictions and sentences to address the problem of a potential wrongful convictions, either as a matter of improper process or as a matter of fact or insufficient evidence to convict. Proceeding under such section, a court must always be aware that, on the one hand a convicted felon will often advance any argument and say anything to end their incarceration or to seek a new trial to achieve a better outcome, and on the other hand, a convicted felon may in fact have a legitimate basis for relief. Such two possibilities place upon a court considering a CPL §440.10 motion the twin burdens of skepticism: first whether reasons advanced have already been reviewed on appeal or prior motions and second, whether issues raised by a CPL §440.10 motion present sufficient merit for relief. Further, although CPL §440.10 accords substantial leeway to courts to grant relief, such section also sets standards and barriers as to what may suffice to allow a grant of relief under such section.

Here Vasquez bases his application for relief under the rule of "newly discovered evidence." By basing his motion on this assertion, Vasquez does not assert any other grounds for relief under CPL §440.10. As this motion must rise or fall solely on this ground, this Court must begin with the proposition that all other proceedings at the hearing, trial, presentence motion, sentence and earlier CPL §440.10 motions were properly conducted and decided. In this Decision and Order, accordingly, this Court will limit its consideration of this motion to the question presented here, whether the standard for relief for newly discovered evidence has been met.

The newly discovered evidence, Vasquez asserts, is that in 2011 Charlemagne confessed to committing the crime to him, and Vasquez also then first became aware that the person he knew as "Chase" was Charlemagne. The People contend, that for evidence to be sufficient to prevail on his motion, Vasquez must, under CPL §440.10, establish that:

"(1) it must have been discovered after the trial; (2) it must not have been discoverable before the trial by the exercise of due diligence; (3) it must be material to an issue at trial; (4) it must not be cumulative; (5) it must not impeach or contradict the evidence at trial; and (6) it must be such that the result of the proceeding would probably be changed in the event of a new trial." People's Memorandum in Opposition, pp. 3-4. [*6]

CPL §440.10

The Court concurs that such standard is the applicable standard.

In considering these requirements, the Court must also consider whether the proffered "new" evidence would be admissible at a trial and whether the "evidence" or testimony in support of its existence is preposterous or wholly unworthy of belief and whether it would be evidence that might be properly weighed by a jury. Below, this Court will address each of these issues and why it has concluded that Vasquez' application has satisfied each of these tests.

1. Earlier consideration of "Newly Discovered Evidence". No mention was made at the pre-trial hearing, the trial, the pre-sentence CPL §330.30 motion, the appeal or the earlier CPL §440.10 motion that Charlemagne or a person known as "Chase" had committed the crime. Although there is no dispute that the crimes for which Vasquez was convicted occurred, it has always been Vasquez' position that he did not commit the crime. Such position, by necessity, carries with it the proposition that someone else committed the crime. As the identity of the perpetrator (other than Vasquez) was not addressed in these prior proceedings, Vasquez is not barred at this time by such reason from raising this issue at this time.

2. The "Newly Discovered Evidence" can be presented to a Jury. The evidence now proffered by Vasquez is Charlemagne's testimony that he committed the crime, how he came to commit the crime, what he obtained as the fruits of the crime and how he shared them with Rigo, and the roles of Rigo, Jr. and Rigo in the crime. Charlemagne's testimony of what he did from the time he approached the car to the time he drove it away would be admissable as would his testimony as to the money he found in the car and where he found such money. His observations of the behavior of Rigo, Jr. and Janette would also be clearly admissible, as would his own actions and statements in dividing the proceeds with Rigo and investing his own portion. His interaction with Rigo in planning the crime, Rigo, Jr.'s participation in the crime, his interaction with Rigo, Jr. and Rigo, Jr.'s asking for the return of the money afterward should then further be admissible to complete the narrative.

At the §440.10 Hearing, Charlemagne admitted his status as a mandatory persistent felon, describing his prior crimes and other bad acts. While such facts may properly also be presented to a jury at any retrial of Vasquez to impugn Charlemagne's credibility as a witness, such evidence would not make Charlemagne an incompetent witness or prevent him from testifying.

There was no evidence that Charlemagne had made any prior inconsistent statements. Although there were some minor inconsistencies between his testimony and that of other witnesses as to the details of the crime and the events before and after the crime, much of his testimony was generally corroborated by other witnesses. The inconsistencies will be addressed below.

3. That Vasquez could not have discovered the evidence at the time of trial using reasonable diligence so as to present it to the Jury. From Leticia's testimony it was clear that Vasquez suspected well before trial that "Chase" might have been involved in the robbery. At the CPL §440.10 Hearing, Leticia introduced a letter (the "Letter) dated March 24, 2000 from Janice Mitchell ("Mitchell") a licensed private investigator she had retained after the trial.

In the Letter, Mitchell acknowledges receipt of the $700, recites that she was retained to [*7]find "Chase's" real name and a photograph, that she was given his former address, some information about his family, a possible first name, and a possible source of information as to his name through "Cindy Thompson" who had been Vasquez and "Chase's" instructor when they were in prison together. Mitchell was also asked to get Janette's address and to locate and interview her, and to locate and interview Rigo, Jr. Mitchell's efforts were not fruitful, and Mitchell advised that the next step would be to hire an attorney. No evidence was presented at the §440.10 Hearing that Leticia proceeded further.

While this letter is evidence that Vasquez had suspected that "Chase" was involved in the robbery, it is also evidence that Vasquez did not know his name or whereabouts by 2000. The suggestion of the name of the instructor who both Vasquez and Charlemagne knew when they first met in prison as a possible source of information is further evidence of Vasquez' diligence. As the mere suspicion that Chase might have been the perpetrator is not evidence and could not have been introduced at trial, finding Chase was necessary to provide admissible evidence, and securing Chase's photograph, or the name from which a mug shot could be obtained might have been useful on the issue of identification. While it is conceivable that Leticia, with her husband in jail and three children to feed, hired the investigator in 2000 to enable Vasquez to claim 12 years later that he performed the proper diligence to learn Charlemagne's name or whereabouts at the time of trial is a conjecture so implausible such that this Court finds it to be meritless.

Leticia also presented a document, supposedly prepared by Rigo, Jr. prior to the trial verdict, which stated that Vasquez didn't do the crime. The issues considered in such letter are irrelevant to this motion. While in his testimony, Rigo, Jr., although vague, effectively confirmed the authenticity and truth of the statements in the document, such document does not identify or accuse "Chase" and would have been inadmissable hearsay as to its contents at trial unless testified to by Rigo, Jr., who notwithstanding an outstanding material witness order, absented himself from the trial.Seeking Janette's address is further proof of diligence on Vasquez' part. Letitia, believing in her husband's innocence and having attended the trial, knew that it was Janette's testimony alone which convicted Vasquez, which Letitia believed must have been untrue or mistaken. It is hardly surprising that Letitia, believing in Vasquez' innocence, wanted to contact Janette to get her to change her story or do the right thing. The People's argument that trying to reach Janette was improper undercuts their counter argument that Vasquez did not pursue his claims with diligence. While such contacts might at some point pass the realm of propriety, no evidence has been presented to this Court that it did here.

Further evidence that Vasquez did not know "Chase's" name or whereabouts or did not have actual knowledge that Charlemagne committed the robbery arises from the fact that it was only after Vasquez' chance encounter with Charlemagne at Coxsackie Prison in 2011 that this motion has been made. It is clear from Vasquez' earlier CPL §440.10 motion that Vasquez understood the potential of a CPL §440.10 motion to void his conviction. Thus making of this motion in 2011 itself constitutes evidence that Vasquez understood he had no evidence to make a CPL §440.10 motion until his encounter and discussion with Charlemagne in 2011 generated evidence which could be admissable at a retrial.

Although CPL §440.10(1)(g) requires "due diligence" to find the "new" evidence before [*8]trial, and "due diligence" in making the motion once the "new" evidence is discovered, the term "due diligence" is not statutorily defined; nor is there a statutory definition as to how such element is to be proven. Here, the proffered evidence of Vasquez' inability to discover the "new" evidence at the time of trial is the letter of the investigator of March 24, 2000, two and a half years after the trial. Such letter does not address what diligence Vasquez exercised at the time of trial but addresses instead, whether the "new" evidence could not have been produced at the trial even with "due diligence". Thus, the letter is probative as it shows that with Letitia's expenditure of money to a licensed investigator, the "new" evidence, Chase's involvement in the robbery, was subsequently undiscoverable.

Due diligence must be a contextual concept for the purposes of the CPL. The amount of effort to constitute "due" must be considered in the context of the ability to pay and the time needed to perform the diligence. People v. Tankleff, 49 AD3d 160 (2nd Dep't 2007). The evidence showed that Letitia, who was raising three children in Florida, without her husband who was in jail in New York, spent $700 on an investigator shows a significant effort on her part. Had she been very rich, she probably could have spent more. While in New York, after the arrest, she did stakeout the building where "Chase" lived ^[FN1], but didn't see a person meeting his description. Her testimony further indicated that Vasquez' defense at trial was mistaken identity. Vasquez' counsel had diligently advanced this theory and had obtained a material witness order for Rigo, Jr., which was not executed, to support this theory. As it was and has been Vasquez' position that Janette's identification of him was faulty, he focused on this theory principally more than on finding who he believed was the actual perpetrator, Chase. Further, "Chase" was suspected by Vasquez to be the robber. Thus, even if he had found him, it would have been unlikely for Chase to have testified, absent a grant of immunity, which would have been unlikely. In the absence of such a grant, Chase would have "taken the Fifth" making unlikely any efforts to find him to be fruitful. Compare this situation with that of People v. Rodriguez, 193 AD2d 363 (1st Dep't 1993), where the witness was not a participant in the crime, was a longtime resident of the neighborhood and had no incentive to make herself scarce, where the First Department held that Rodriguez had not exercised due diligence. Based on the foregoing, I find that under the circumstances, Vasquez has satisfied the statutory due diligence test.

4. A jury might have reached a result more favorable to Vasquez had it heard the newly discovered evidence. It is a staple of old television courtroom dramas, such as Perry Mason, that, after the People have put in their evidence, the real killer stands up or enters the courtroom to confess. That may or may not be the situation here. While the TV series clich� elides over the possibility that the "real" killer is lying or has some other motive to confess, and that the People may be able to discredit his confession, there is little question that Charlemagne's testimony would be "of such character as to create a probability that, had such evidence been received at the trial, the verdict would have been more favorable to the defendant." CPL §440.10(g).

This Court has reached such conclusion after having heard the testimony of the witnesses at this §440.10 Hearing, having the opportunity to observe and evaluate the witnesses testimony and demeanor, and having considered the arguments of counsel, together with this Court's experience in presiding over approximately two hundred jury trials and observing the behavior of [*9]New York County jurors.

In reaching this conclusion on this issue, the Court has considered the credibility of all the witnesses at this hearing and the plausibility of their testimony, as well as how credibility issues might play out in a retrial for each of the witnesses who testified at the original trial as well as who might be expected to testify at a retrial. Below is a further discussion of some of these credibility and evidentiary considerations.

Charlemagne

Charlemagne's testified at the §440.10 Hearing against his interests. The repetition of such testimony at a new trial would also be given against his interests. Charlemagne is a mandatory persistent felon serving a sentence of 17 years to life for Burglary in the Second Degree committed in 2000. While the five-year statute of limitations (CPL §30.10 (2)(b) would bar his prosecution for the 1997 robbery, his admission to such crimes would clearly be admissible and considered in any eventual parole hearing, the first of which will occur in 2017 at the latest.^[FN2] The fact that Charlemagne would be testifying against his interest would be a factor that a jury could consider to support his credibility. During the People's cross examination, in an attempt to establish that Charlemagne was an interested witness, Charlemagne admitted that it would be nice if Vasquez won a retrial and sued and received an award from the state if Vasquez would help support Charlemagne's legal costs in his own attempts to seek freedom. Although this Court considers such assertion of limited merit in light of the availability of free counsel, the People would be free to attempt to try to introduce such evidence at a retrial, and if permitted to argue to a jury that Charlemagne is an interested witness. This future encounter with his Parole Board is close enough to be meaningful to him. Charlemagne was well aware as to the impact his admission of the crime on his parole status. He testified that before his testimony, the People's investigator implicitly threatened that his testimony would be put in his parole file. Whether or not such advice was a threat, the discussion clearly made Charlemagne aware that testimony favorable to Vasquez could end up being against his parole interest. While Charlemagne has an extensive criminal record of five felonies, including four burglaries and a drug sale, as well as three misdemeanors, a record which would be fair game for cross examination in any re-trial of Vasquez, his statement that he was coming forward to prevent an erroneous conviction of a friend and that he has never done this before adds some plausibility to his testimony.

Charlemagne's testimony presented certain details of the crime which were corroborated by Raul and apparently not part of any prior record of the case, including the rubber bands around the money and the presence of the marijuana money in the trunk. Charlemagne's testimony as to Rigo's attempts to retrieve Charlemagne's share of the robbery proceeds as well as the lie of the kidnaping of Rigo, Jr. is similar to the story Rigo told to Letitia. Finally, Charlemagne's testimony as to having found the $16,000 in drug money in Janette's purse is consistent with the People's view that drug dealers do not casually permit persons not intimately involved in their operations near large amounts of drugs, large amounts of money used to buy drugs, or large amounts of proceeds from the sale of drugs. (See the discussion of this issue below under the [*10]analysis of Janette's testimony and her part in the narrative.) In any event, Charlemagne's credibility and the plausibility of his testimony would clearly be a matter for a jury in any retrial.

Leticia

The People in their cross examination of Leticia, attacked her credibility as being an interested witness. The People raised the possibility that she may be considering a wrongful conviction suit and therefore has a motive to lie. She is, in any event, already a highly interested witness, with an interest in the release of her husband and the father of her children. However, an interested witness is not an incompetent witness, and this Court has considered her interest. While her testimony at the §440.10 Hearing addressed issues of diligence in seeking newly discovered evidence that filled in the narrative, it was hardly crucial to the principal issues of the §440.10 Hearing the existence and plausibility of the newly discovered evidence. The most significant material matter addressed by her testimony relates to the quantum and timing of diligence expended by Vasquez to find Charlemagne and learn his identity and admissable evidence that he committed the crime and whether Vasquez knew such facts earlier and delayed bringing this motion. Her testimony on such issue was to introduce the fact that she had retained an investigator and paid her $700 to find Chase or Chase's true name and picture, as well as other matters and to introduce a copy of such investigator's report. The People did not challenge the authenticity of this document, which speaks for itself.

Mitchell's letter is credible evidence that reasonable diligence at or about the time of the trial could not have found Charlemagne. As Vasquez had been in custody since the time of arrest, seeking Charlemagne would reasonably have had to be performed by someone not in custody, and, with Leticia living in Florida with young children, an investigator was a proper person to do it. While the investigator was given some leads, such as the name of Vasquez' and Charlemagne's instructor in prison when they first met, it is not surprising that she was not found through the prison system as personnel records of Correction Department personnel are not disclosable in Freedom of Information requests. While the investigator found a phone number of a person with the same name, apparently such person was not available at the number and not reached, and the People have not shown that it was the same person who was the instructor.

In any event, the issue of diligence to find and delay of disclosing "newly discovered evidence" in considering a CPL §440.10 motion is for this Court, and would not be a jury issue in any retrial of Vasquez. Thus, Leticia could not be a witness on this aspect of the case at a retrial. Further, as Vasquez' spouse, the People could not call her as a witness at retrial over Vasquez' objection, and if he did not object she would become the People's witness and not subject to impeachment by them. As she was in Florida at the time of the crime, she had no direct knowledge of the crime and could not testify as a witness as to the crime. She was not a witness at Vasquez' initial trial and would most likely not be a witness at a retrial. Accordingly, this Court finds issues of her credibility as an interested witness and as a person who had a drug history and a criminal record to be de minimus for the purpose of this motion.

Rigo

Vasquez, Raul, Rigo, Jr. and Charlemagne each interacted with Rigo. The testimony of Raul, Rigo, Jr. and Charlemagne, and to a lesser extent Janette, made it clear that Rigo was a central figure in the robbery. While Rigo's truthful and accurate testimony might have resolved [*11]most of the issues before this Court, Rigo is dead. Accordingly, no such testimony was available at the §440.10 Hearing or would be available at retrial. As Vasquez has not testified, the Court may only consider Rigo's role from the testimony of Rigo, Jr., Raul and Charlemagne, and to a minor extent by Janette who rode in the car with Rigo to Washington Heights. Not only is much of this testimony as to what Rigo said hearsay, but each witness who described what Rigo said also testified to Rigo's double dealing, making anything he might have said to such witness of questionable veracity at best.

For example, Vasquez' supposed identity as the robber was given by Rigo to Raul, who in turn gave Vasquez' name to Janette, who in turn told Litrenta. Yet if Rigo was a part of the robbery, as Raul, Rigo, Jr. and Charlemagne have testified (Raul reached such conclusion when he later confronted Rigo and Rigo, Jr., and recovered much of the crime proceeds later the same day the crime was committed), Rigo had every incentive to lie about Vasquez to Raul to divert suspicion from himself and the ire of Raul's gang cohorts as part of the robbery. After all, Raul knew Vasquez from childhood, most likely knew of Vasquez' criminal record, and could have easily initially believed his "friend" Rigo's fingering of Vasquez, so as to pass on Vasquez name to Janette.

While it is Vasquez' position that he was not a part of the robbery, the People introduced testimony at the §440.10 Hearing to the effect that Vasquez suggested the robbery to Rigo and later received a portion of the robbery proceeds. Most of this evidence comes from the testimony of Rigo, Jr. and Raul who testified as to statements made to them by Rigo. The only non-hearsay evidence to support this theory is the testimony of Litrenta that when he arrested Vasquez, he recovered pay stubs and receipts for the purchase of jewelry and other expenditures on February 7, 1997.^[FN3] While Litrenta's testimony might have been admissable to corroborate Vasquez' receipt of robbery proceeds, by itself it is hardly probative of anything.

On the other hand, Rigo's statements, if admissable, would be highly probative of Vasquez' participation in the robbery as a person acting in concert with the robber. Given Vasquez' right of confrontation, Rigo's statements should not be admissable at trial. Further, given Rigo's performance before and after the robbery, there is little to support his credibility. Both of Rigo's statements clearly divert Raul's focus on Rigo to Vasquez. According to Rigo, Jr., he had not been kidnaped by Raul, and Rigo and Rigo, Jr. had returned their share of the proceeds the evening of the crime. Yet Rigo, according to Letitia, called her looking for Vasquez for money, because Rigo, Jr. had been kidnapped. (Her testimony was "because they [Raul] had his son and was looking for money.") Under Raul's and Rigo, Jr.'s testimony, Rigo's statement was a lie because Rigo, Jr. immediately surrendered his portion of the proceeds and Rigo was confronted immediately thereafter and surrendered his portion of the proceeds, and there was no further detaining of Rigo, Jr. Thus, the call to Letitia had to be made after such event. According to Charlemagne, Rigo called him on January 12 or January 13 to "cry" about his son being kidnapped as an attempt to get back Charlemagne's share of the robbery proceeds. [*12]Charlemagne, backed by friends and a machete, met Rigo and gave him $100, telling him effectively to get lost, and that it was his fault for leaving the rubber bands on the money. Although it seems that Charlemagne believed Rigo's story of the kidnapping, both Rigo, Jr. and Raul's testimony belied Rigo's statement to Charlemagne.

Rigo, Jr.

At the §440.10 Hearing, Rigo, Jr. effectively confessed he acted in concert with his father and Charlemagne to steal the car and its contents, and that Vasquez was not the person who displayed what appeared to be a gun to commit such crime. As it is Vasquez contention that he was not present at the robbery, and as Vasquez and Rigo, Jr. knew each other, Rigo, Jr.'s testimony that Vasquez was not the robber cannot constitute newly discovered evidence for the purpose of this CPL §440.40 motion, as Vasquez was (under his contention) fully aware of such fact at the time of the trial.

However, Rigo, Jr.'s testimony corroborates Vasquez' version of the crime by placing Charlemagne at the robbery scene and the purpose of the crime (to steal the $16,000 expected to be used to purchase a kilo of cocaine) as well as the trail of money from Charlemagne to himself and his father, and the recovery of such proceeds by Raul.

While in a sense, some of Rigo, Jr.'s testimony at the §440.10 Hearing was "newly discovered" in that it had been unavailable to Vasquez before, Vasquez' motion does not rest on Rigo, Jr.'s information. Accordingly, the Court need not address whether Rigo, Jr.'s testimony could itself constitute is "newly discovered" for the purpose of this motion.

Rigo, Jr.'s credibility is not sterling. His admission to being a participant in the crime, and failing to comply with the material witness order, are crimes and bad acts which would have to be considered by a jury in assessing his credibility. Participating in Rigo's own drug activities were additional crimes which are admissible on the issue of his credibility. Even while discussing these activities, this Court found Rigo, Jr. to be evasive and less than forthcoming in an attempt to minimize his responsibility in his regular participation with Rigo in selling drugs. Further, when this CPL §440.10 proceeding commenced in 2011, Rigo, Jr. initially told the People's investigator, who interrogated him in preparation of the People's response to Vasquez' motion, that Vasquez had indeed committed the crime, and only later in 2012 when re-interviewed to prepare his testimony for the §440.10 Hearing, changed his story to the investigator to the one he gave at the hearing. As the statute of limitation had run on the January 1997 robbery well before 2011, it was not a matter of avoiding confessing to a crime for which he could be punished in 2011. Although Rigo, Jr.'s prior inconsistent statements are not proof of what occurred, proof of Rigo, Jr.'s prior inconsistent statement may be considered by a jury in evaluating Rigo, Jr.'s credibility. Although, as a result, there are grounds to impeach Rigo, Jr.'s testimony as not credible, this Court accepts that portion of his testimony which corroborates other testimony. Such testimony is clearly plausible and not materially inconsistent with known facts.

Rigo, Jr.'s testimony at the §440.10 Hearing as to his return of a portion of the crime proceeds also was less than fully candid. Although he corroborated Charlemagne's story that Charlemagne split some of the proceeds of the crime with Rigo, and that Rigo's share was further split by Rigo with Rigo, Jr., and that both Rigo and Rigo, Jr. returned such amounts to Raul shortly thereafter, Charlemagne's and Raul's version, that Raul and his sponsors threatened Rigo, [*13]Jr. to achieve the return of such funds, is far more believable than Rigo, Jr.'s story that Raul merely asked for it and he merely returned it. The money was, after all, money which, as Raul testified, Raul had collected from his sponsors to score a kilo of cocaine, which had been carjacked. Raul was clearly under pressure from them to make good on the loss, and would have more likely employed the strong arm tactics, to which Raul testified, to recover the funds from the person who stole it. Rigo's testimony that "he asked for it so I gave it back to him" is at best a pallid description of the interaction. When Rigo, Jr. also changed his story to the People's investigator in 2011, the People promptly and properly gave written notice of such change to defense counsel. However, such change of story could not have been a surprise to Vasquez as he has always contended that he "knew" he was not the robber, and that Charlemagne was.

Rigo, Jr. was present at the crime and saw it unfold. His own testimony was that not only did he see it occur, but that he held Janette in a way to prevent her from getting too good a look at the robber. He acted unconcerned after the robbery and only called his father to report, and avoided calling 911. Although he had a cell phone, he required Janette to make her 911 call from a bystander's phone. Although Rigo, Jr. was a "victim" of the crime, Litrenta was unable to get a statement from him and characterized him as uncooperative.

Many claims of "newly discovered evidence" involve the recantation of a witness whose earlier testimony was material in the defendant's conviction. Such recantation always raises the concern whether the original or new testimony is true. Rigo, Jr.'s testimony at the §440.10 Hearing, however, is not a recantation as it is his first sworn testimony under oath, which could provide a basis for a perjury prosecution. The absence of Rigo, Jr.'s prior testimony, and his behavior at and after the commission of the crime and through the trial, in a way, however, reinforces his credibility at the §440.10 Hearing. His behavior at the time of the crime, being unconcerned, speaking to his father, and not calling 911, supports his present testimony that he was a participant in the crime. To testify at trial to the same facts he testified to at the §440.10 Hearing would have been to admit that he acted in concert with his father to commit the robbery, and that both were therefore also guilty of such crime. To have testified that Vasquez was not the robber, would have also put himself and his father's lives in jeopardy by Raul and his sponsors. With his father dead, and the statute of limitations passed, these concerns are now absent.

Raul

Testimony from Rigo, Jr., Charlemagne, Janette and Raul himself at the §440.10 Hearing all agree that Raul went to 192nd Street to conduct a drug deal. Although Janette's testimony was that she learned this later, the others concurred that they all knew it at the time. While Vasquez did not testify at the §440.10 Hearing, his motion papers adopt the same position. Raul also admitted to having committed drug crimes before the incident, to have been on parole, to have known Vasquez for years, and to having been a member of the Latin Kings gang at the time of the crime. His testimony corroborated many of the facts of the crime and also the fact of there being a large sum of money in the car and in its trunk. He also corroborates that he is the one who told Janette that Vasquez was the robber and that he had been so advised of that "fact" by Rigo. As Raul was no where near the car when the crime was committed, he could not know of Vasquez participation in the crime, except from Janette (who says she never saw Vasquez before the incident, and therefore could not have fingered Vasquez to Raul as the robber), or from Rigo, [*14]Jr., who made himself scarce following the crime, or from Rigo.

As a buyer of drugs from Rigo, using his sponsors' money for such purpose, and having such money stolen, Raul was in a difficult position vis-�-vis his sponsors for the drug purchase. As Raul's sponsors were also in the illegal drug trade, it is a reasonable inference that they were neither gentle souls nor amused by the theft of their funds. Raul's testimony also supports such conclusions as he testified that two of his backers were "strapped" (i.e. carrying guns) when they returned to confront Rigo and Rigo, Jr. It was to Raul's interest to "solve" the crime in a way to minimize any anger of his sponsors against him. Vasquez was a better target than Rigo and Rigo, Jr. as Raul himself had brought Rigo and Rigo, Jr. into the drug deal, whereas Vasquez was unrelated to the deal. Accusing Vasquez could distance Raul from his own fault for the loss of the $16,000 or of any portion. Raul, Rigo, Jr. and Charlemagne all testified that Raul recouped a substantial portion of the robbery proceeds on the evening of the robbery from Rigo and Rigo, Jr.

Raul also testified how he recovered a portion of the stolen funds. In his version, Raul returned to Long Island after the crime, having been told by Rigo that Vasquez had planned and carried out the crime, and that he didn't fully believe Rigo at that time. He returned later that evening to Rigo's Bronx apartment at Bainbridge Avenue with two of his sponsors who were armed and approached Rigo, Jr. when he arrived in front of the building. Seeing a bulge in Rigo, Jr.'s jacket, which Rigo, Jr. said was a beeper, Raul reached inside and recovered a wad of cash, bound by rubber bands similar to those which had bound the monies he brought to purchase drugs. He then forced Rigo, Jr. to call Rigo down. When Rigo arrived, Rigo also returned his share of the crime proceeds. The extraction of these proceeds were clearly achieved under duress. By recovering such monies from them, Raul knew that Rigo and Rigo, Jr. were part of the robbery.

Raul's subsequent identification of Vasquez from Litrenta's photo array occurred five weeks later on February 18th. While such identification was undoubtedly "truthful", in that Litrenta's questions to him were the classic and proper questions of a detective in presenting a photo array.^[FN4] However, Raul conveniently did not mention to Litrenta at that time that he knew that Rigo and Rigo, Jr. were also participants in the robbery.

Raul drove Janette to the precinct on February 18th, where Janette picked out Vasquez from the photo array. Her identification of Vasquez from the array and at trial were the key to Vasquez conviction, as there was no other evidence of Vasquez presence or actions at the time of the crime.

Raul had an interest from the day of the crime in having Vasquez named as the robber to distance himself from Rigo and Rigo, Jr. When he drove Janette to the precinct, his interest in having Vasquez be considered the robber had not abated. The admission of complicity of the Rigos would reflect badly on Raul. Although he testified he did not do so, Raul had adequate time from the time of the robbery to secure family or other photos of Vasquez as he had known him from childhood, or to brief Janette as to what he looked like to enable her to pick him. No evidence, however, was presented in the §440.10 Hearing, the trial or the Wade hearing on the array that she had knowledge of what Vasquez looked like from sources other than the robbery to [*15]enable her to select his photo from the array. If, however, she knew what Vasquez looked like and had selected him it would have been easy for her to pick Vasquez out at the lineup and child's play to identify Vasquez in Court at the trial — Look at the person at the defense table and see if he looks like the picture you picked. Why Janette might have participated in such a false identification is discussed below.

Janette

The People present Janette as the only participant in the drama who is not a felon and thus a credible witness. At the trial, she was presented as an innocent passenger in a car whose purse, containing her salary, was stolen with the car in an armed robbery after she was ordered out of the car by a stranger. She frantically and immediately called 911 and reported the crime and, shortly thereafter, identified the robber from a photo array prepared by the police who had received a tip (from her) as to the robber's identity. As discussed below, to the extent the Police and District Attorney considered Janette's complaint on these terms, they properly proceeded to try Vasquez and, as the First Department found, they submitted adequate evidence to the jury to convict. Although under CPL §440.10 motion for a new trial on the grounds of newly discovered evidence, the court must deem that the original trial had been conducted properly, the newly discovered evidence would also undercut Janette's credibility and create a new and critical issue at a retrial.

At trial, the defense having no basis to challenge her credibility, instead attacked the accuracy of her identification by addressing her description of the perpetrator's size and hair length. Such descriptions are usually estimates, and with Janette's credibility being unscathed, the jury convicted Vasquez based on her in-court identification, corroborated by her selection of his picture in the photo array and her identification in the lineup. The newly discovered evidence, as well as the total change of the theory of the case from a "two-bit carjacking" ^[FN5] to a premeditated rip-off of a drug dealer's $16,000, changes the analysis of Janette's testimony for truthfulness. Such new evidence also presents a factual basis for a defense contention that Janette had a motive to lie. Charlemagne's testified that he found the $16,000 in Janette's purse. Such is direct evidence that Janette was part of the drug deal, and therefore had a motive to lie about how much she knew of Raul's being a drug dealer and a member of the Latin Kings ^[FN6] and to cooperate with Raul on pinning the robbery on Vasquez to protect herself from prosecution as a participant in the drug deal or from Raul's ire for losing his $16,000. It changes the complexion of her testimony and highlights the issues of the accuracy of her descriptions to the police of the robber's size and hair length, which were clearly factual issues for the jury at trial.

Here Raul testified that Rigo warned him, prior to the day of the crime, that Vasquez was [*16]planning to rob him.^[FN7] If such warning was indeed given, it was even more highly unlikely that Raul would have driven with Janette and a large amount of cash with the expectation that he would buy a kilo of cocaine and continue to drive with her in a car with the kilo of cocaine he expected to buy, unless Janette was in on the deal.

Another troubling aspect of Janette's testimony is that she claimed at trial not to be aware of the pending drug deal at the time of the crime. It is the current position of the same prosecutor's office that in cases involving a kilo of cocaine, drug dealers, being concerned with the potential robbery of their cocaine, only allow those who intimately know of the workings of the drug organization to come close to the cocaine. The same concerns would naturally apply to sizeable amounts of cash carried by a drug dealer to purchase kilo quantities of drugs. The recent trial of People v. Jimenez, 3818/2010, before this Court, illustrates the People's current position. In such case, the People introduced testimony of Police Detective Alfred Hernandez of the Drug Enforcement Task Force as an expert witness in the matter of "the narcotics trade", who had been so qualified as such an expert over 50 times in Supreme Courts in New York and Kings Counties. In January, Jimenez was the driver of a vehicle from which a kilo of cocaine was thrown by the passenger. Jimenez was arrested, indicted, tried and convicted by a jury for Criminal Possession of a Controlled Substance in the First Degree.^[FN8] [*17]

At the Jimenez trial, the People urged the jury to credit the expert testimony to find that Jimenez had to be aware of the presence of cocaine in the car and therefore was in possession of the kilo. The jury accepted such argument and convicted.

Under such prosecution theory, Janette would have been, had the purchase actually been consummated, guilty of a Class A-1 felony and under the fact of this case, guilty of Attempted Possession of a Controlled Substance in the First Degree, a Class A-II felony.

While the expert witness in Jimenez did not testify as to the conditions in the drug trade in 1997 when Vasquez was convicted, human nature rarely changes over time, and this Court finds no reason to believe major drug dealers would not have acted similarly in 1997 to protect their product or funds to purchase it from theft. In this motion to consider whether a jury, in possession of newly discovered evidence might have rendered a verdict more favorable to Vasquez, the Jimenez expert evidence that in a retrial, with Charlemagne's testimony that he committed the robbery to steal over $16,000 in drug money, might well have such effect.

At the §440.10 Hearing, Janette said she could not now identify Vasquez (who was present in the Court), having "put the experience out of her mind". As she identified Vasquez at the 1998 trial, the People would have little difficulty in introducing her trial identification in a new trial. While such statement may be true, it could also be true that the passage of fifteen years since the robbery has enabled Janette to separate from her fears of Raul and her risk of prosecution for a drug deal. Further, if she were not truthful at trial, she might not wish to compound a wrong committed on Vasquez, especially when to repeat her trial testimony may result in her committing perjury at the §440.10 Hearing or at a new trial for which she could be prosecuted.^[FN9] Janette has, since the trial, married, has a family and a career. She has avoided any run-in with the law. At the time of the crime, she was 30 years old, dating a person at least ten years her senior, whom she knew to have been a felon and on parole. While she also testified that she had not inquired what Raul's previous crime was for or knew that Raul was a Latin King, Raul, at the §440.10 Hearing, testified that Janette knew from the beginning of their relationship he had been convicted of a drug felony and was a Latin King. Even if her version of what she knew of Raul is true and that she was unaware of the purpose of the robbery, by the time Raul drove her to meet Litrenta at the precinct seventeen days after the crime was committed, it is a reasonable inference, even if one rejects the concept that drug dealers do not allow non-participants in the drug organization to get near product or cash when the value is large, that she knew of the deal. It strains credibility that after Rigo, Jr.'s performance at the robbery by being unconcerned and by calling his father, rather than 911, and after Raul's telling her that Vasquez did it, immediately after the robbery which tip she promptly passed on to Litrenta, that she did not discuss the crime with Raul — as to how and why he knew it was Vasquez and to what else happened at the robbery. [*18]

In short, although Janette was presented at the trial as a witness of unchallenged credibility, with the testimony of Raul, Rigo, Jr. and Charlemagne, she may no longer enjoy such status at a new trial . Her credibility may be challenged and she may no longer be characterized as the Snow White among the ugly dwarfs, i.e. the other lay persons who testified at the §440.10 Hearing. The People's principle objection to their testimony (as distinct from Janette's on which the trial conviction was based) was that they were all criminals and liars, who should not be believed. Janette joins them as one more probable criminal and liar. Thus, at the retrial all witnesses (other than the police officers who had no knowledge of the crime) could be characterized as criminals and dissimulators - leaving it to a jury to sort out.

Vasquez

Vasquez did not testify at the trial or the §440.10 Hearing. He has supplied no evidence by affidavit. Because of his Fifth Amendment rights, he had no obligation to testify at trial, and such fact may not be held against him. His trial defense of misidentification was unsuccessful. Although this Court made clear to Vasquez that he had the right to testify at the §440.40 Hearing, he elected not to.

While his decision at trial may have been a rational trial strategy at that time, as he believed he had a defense of misidentification, he would have also had to face a Sandoval sanctioned inquiry, which if he testified, his extensive criminal record would also have been presented to the jury and he would have to admit living with and consorting with Rigo, a drug dealer, in probable violation of his parole. Although such issues were absent here, the sole issues at the §440.10 Hearing was whether there was "new evidence", and whether Vasquez had exercised appropriate and timely diligence in securing it. In neither cases was his testimony crucial. Letitia's testimony addressed the diligence issue, and Charlemagne's testimony was that Vasquez had not seen him since before the date of the crime corroborated such issue. As Vasquez' position was that he was not at the car and didn't commit the crime, and thus had no personal knowledge as to the crime is consistent with his not testifying at the §440.10 Hearing.

Litrenta

Litrenta, the case detective, spent 27 years on the Police Force, including 17 years as a detective until his retirement in 2011. This Court found his testimony at the hearing credible. An analysis of his actions, based on what he knew at the time, reinforce such credibility.

The crime was presented to the Police as a two-bit carjacking in Washington Heights of a ten-year old compact car with a woman's purse containing $700.^[FN10] While the New York City crime rate had been falling for a few years in 1997, crime was still a considerable problem, and Washington Heights was a busy crime area. The crime was presented to Litrenta as a robbery of a person without a record who had a tip as to a possible perpetrator who had an extensive criminal record including gunpoint crimes, who was currently on parole. She passed the standard police identification procedures with flying colors. While Vasquez on arrest began to tell Litrenta about there being a drug deal involved, he quickly elected to stay silent. Having a good case, on a relatively minor crime, and an identified perpetrator with an extensive record of robbery, Litrenta passed on his file to the District Attorney for processing. His delay in mechanically sorting pictures for a photo array is consistent with other pressures of his job as a [*19]detective and the relatively minor nature of this crime, in that no one was killed, no one was hurt and the value of the property alleged to have been stolen was relatively small. He developed sufficient evidence to show probable cause and passed the case on to the prosecutors for prosecution.

Conflicts in Testimony

The §440.10 Hearing produced several conflicts of testimony between or among witnesses. While Raul and Charlemagne agreed that there was $16,000 in cash in the car which was to have been paid for the cocaine in the cocaine deal, Rigo, Jr. thought it was $20,000 and was unaware of the marijuana money in the trunk. While Raul and Charlemagne agreed that the marijuana money there was in the trunk in a satchel, they disagreed on the amount, Charlemagne testifying it was $7,500 and Raul that it was about $2,000. Similarly, Charlemagne testified that he gave Rigo $8,000 of the $16,000, but Raul testified he recovered $12,000 from Rigo and Rigo, Jr., including $5,000 from Rigo, Jr. and $7,000 from Rigo. Further, Rigo Jr. couldn't remember the amount he got or "gave" back to Raul. Raul also testified he confronted Rigo, Jr. with two armed companions, but Rigo, Jr. testified Raul was with five or six guys. Charlemagne, who was not at that confrontation, testified that Rigo had told him that Rigo, Jr. was kidnapped by eight people. Charlemagne, although describing the crime accurately, stated that it occurred at "either 180th or 181st" while it actually occurred at 192nd Street.

Whether these differences are meaningful is of course a jury question, and the standard instructions to a jury when faced with inconsistent testimony is whether the inconsistencies relate to material facts or to the minor inconsistencies one might expect from multiple witnesses to the same event. The witnesses at the §440.10 Hearing also were testifying as to events which occurred in early 1997, over fifteen years ago. While a jury might at a retrial disagree, this Court does not find such differences to undercut its conclusion, and does not find that it would not be unreasonable for a jury at a retrial to also find such inconsistencies not material when considering the testimony of the witnesses.

Problems of Proof

Rigo's death presents a problem of proof of exactly what happened. Rigo, Jr. testified that Vasquez had told his father that Raul could be easily robbed. Raul testified that Rigo told him, days prior to the robbery, that Vasquez was going to rob him. Charlemagne testified that Rigo had recruited him to do the crime and that Charlemagne had turned over certain of the proceeds to Rigo. Rigo, Jr. also testified that Rigo told him Vasquez had received proceeds from the crime, but that he never saw such money pass. While defense counsel at the §440.10 Hearing did not object to such hearsay, it would not be unlikely that trial counsel at a new trial would not.

As Rigo cannot testify, his statements to the extent offered for the proof of their content would be hearsay and would be excludible for such reason, absent a hearsay exception. The People would also be precluded from introducing Rigo's statements over Vasquez' objections. The confrontation clause of the 6th Amendment to the U.S. Constitution would prevent their introduction. Crawford v. Washington, 541 US 36 (2004). While the People may introduce some of Rigo's statements to explain what someone did following their utterance, and not for the truth of their contents, Vasquez in his defense might introduce such statements if there is an appropriate hearsay exception. Thus, Rigo's statement to Raul that Vasquez committed the crime might be introduced to show why Raul told Janette that Vasquez was the robber. However, as [*20]the Court of Appeals has recently noted in People v. Reid, 19 NY3d 382 (2012), it is possible that Rigo's statements could also be admissible by the People if a "door was opened".

While Rigo's hearsay statements may present problems of admissibility, such issues would be for the trial court to determine. As a result, this Court has considered the possible impact of such statements as testified to by the witnesses at the §440.10 Hearing in making its decision on this motion, as this Court cannot predict exactly how Rigo's statement may be offered at a new trial, or whether a door would be opened, and what the trial Court may allow.

Remaining Evidence of Guilt

Although the §440.10 Hearing has produced an alternate story which in the opinion of this Court could reasonably lead to a jury result more favorable to Vasquez, a full consideration of the evidence, both at the trial, as reviewed by the First Department and the evidence at the §440.10 Hearing does not permit this Court to conclude beyond a reasonable doubt that a new jury would find Vasquez not guilty, as a Court might where by reason of DNA or an irrefutable record or a perjury conviction has totally destroyed the basis of the earlier conviction. Here, while one of the two victims has testified Vasquez was not the robber, the other victim (Janette) picked him out from the photo array and line up, and testified at trial he was the robber. While her testimony at the §440.10 Hearing to the extent repeated at a retrial may allow for a more intense challenge of her credibility and greater support to challenge her identification on a mistake of fact, such issues would be issues for a jury.

Further, since the trial, the Court of Appeals has recognized in People v. LeGrande, 8 NY3d 449 (2007) that expert testimony is now admissable as to certain aspects of identification testimony. Weapon focus is an area that such testimony may be received.^[FN11] At the trial, Janette testified that she was terrified as what she perceived to have been a gun was thrust upon her during the robbery. The 911 tape of her report of the crime immediately after the event corroborated her highly emotional state. At a new trial expert evidence as to weapon focus, as well as to other aspects of her identification testimony, might also be admissable to counter the accuracy of her identification of Vasquez.

On the basis of the testimony at the §440.10 Hearing, as considered by this Court as finder of fact, the exhibits, the record of prior proceedings and the argument of counsel, and based on the conclusions and considerations set forth above, this Court has concluded that Vasquez has established his entitlement for relief under CPL §440.10(1)(g). Vasquez' motion is hereby granted and his conviction vacated, and the matter is restored to the trial calendar for a new trial.

This shall constitute the Decision and Order of the Court.

DATED:JUNE 13, 2012

NEW YORK, NEW YORK

[*21]

Honorable Lewis Bart Stone

Justice of the Supreme Court