The defendant's motion, pursuant to CPL 440.10, dated September 25, 2013, to vacate the December 11, 1997 judgment after a jury trial convicting him of Murder in the Second Degree (PL 125.25 [3]) and Burglary in the First Degree (PL 140.30[1]) (Lipp, J. at trial and sentence), upon consideration of the People's Answer, dated December 20, 2013, and the defendant's Reply, dated March 17, 2014, is denied.

During the period when the defendant's Reply to the People's Answer was pending, the Appellate Division decided on January 15, 2014 People v. Hamilton, 979 NYS2d 97, 2014 NY Slip Op 00238 (2nd Dept. 2014) directly bearing upon the defendant's claim of actual innocence. The defendant's request to extend the time to Reply was granted.

The Defendant's Contentions

The defendant's motion seeks to vacate the judgment pursuant to CPL 440.10 alleging newly discovered evidence (CPL 440.10 [1] [g]), the use of duress, misrepresentation or fraud on the part of the People (CPL 440.10 [1] [b]), and violations [*2]of the defendant's constitutional due process rights to a fair trial due to the admission of unreliable and tainted eyewitness identification evidence, ineffective assistance of trial counsel, delayed disclosure by the People of material evidence, the People's failure to correct perjured testimony, and that the defendant is actually innocent (CPL 440.10 [1] [h]).

History

The January 5, 1996 Homicide

Based on the trial testimony and jury verdict, the following summarizes the relevant facts:

On January 5, 1996, at approximately 7:00 p.m., Fahmi Shehadeh and his wife, Sara Shehadeh, were inside their home on the second floor of a house at 1117 East 100th Street in Brooklyn. The door to the home was unlocked. The defendant entered the home with a gun in his right hand, put a finger to his mouth and said "Shh, shh." Fahmi Shehadeh grabbed the defendant and began to struggle near the door where the defendant then shot Fahmi Shehadeh in the chest.

The defendant fled the house. He and two other men ran to East 100th Street, near Avenue K, where the three got into a burgundy car and drove away.

Fahmi Shehadeh was taken to Brookdale Hospital where he died.

In an interview with the police at about 8:30 p.m. that night, Sara Shehadeh described the shooter as a male black in his late teens or early twenties with "small eyes" and a "brownish complexion." She further said the shooter had a "skinny build" and was shorter than her husband. Fahmi Shehadeh was five feet seven inches tall.

The police recovered one ten-millimeter shell casing from the porch near the front door of the Shehadeh residence.

The January 17, 1996 Shooting of Wayne Page

On January 17, 1996, twelve days after the shooting of Fahmi Shehadeh, Kirk

Henry, Devon Morris, Craig Williams and one other person were involved in the shooting of Wayne Page. At approximately 12:50 a.m., Page was standing near the intersection of Ralph Avenue and 76th Street in Brooklyn. Morris (who was subsequently arrested in Queens "hiding out" with the defendant) and Henry drove up in a grey car. Henry got out and began firing at Page striking him in the neck and right arm. Page began to run, and Henry re-entered the grey car.

As Page ran, Craig Williams and another man in a burgundy Honda Accord drove up. Williams, seated in the passenger seat, started shooting at Page from inside the car striking Page in the side and buttocks.

Page continued running to 78th Road and Farragut Road where he stopped, out of [*3]breath and unable to continue. The grey car pulled up, and Henry got out again. After telling Page he was dead, Henry fired four shots at his head, one shot going through Page's baseball cap, one striking his shoulder. Page fell to the ground and Henry left.

The police recovered twenty-eight pieces of ballistics evidence from the Page shooting on January 17, 1996. The evidence consisted of nine-millimeter and ten-millimeter shell casings and bullet fragments. The ballistics evidence from the Page shooting was compared with the ten-millimeter shell casing recovered from the Shehadeh shooting. The ballistics comparison concluded that the ten-millimeter ballistics evidence from the Page shooting had come from the same weapon used to kill Fahmi Shehedeh on January 5, 1996.

The January 29, 1996 Arrest of Craig Williams

On January 29, 1996, the police observed Craig Williams driving a burgundy Honda Accord matching the description of the car used in the January 17, 1996 Page shooting. The car, containing Williams and a passenger, Owen Beckford, was pulled over. As the two got out of the car, a ten-millimeter loaded and operable handgun fell from Williams' lap and a loaded and operable 40-caliber handgun fell from Beckford's lap. Both men were arrested. The police also recovered a nine-millimeter shell casing from inside the car.

The on-line booking sheet prepared in connection with Craig Williams' arrest on January 29, 1996 stated that Williams was 19 years-old, was five feet, eleven inches tall, and weighed 220 pounds. The complaint report that was prepared in connection with Williams' arrest on January 29, 1996 stated that Williams was 19 years-old, was five feet, nine inches tall, and weighed 220 pounds.

The burgundy Honda Accord that Williams was driving on the day of his arrest was registered to the defendant's mother, Urcy Shirley. On January 29, 1996, the police showed Wayne Page photographs of Shirley's car. Page identified Shirley's car as the burgundy car that Craig Williams and an unidentified individual had used when Page was shot on January 17, 1996. On January 30, 1996, Page went to the 69th Precinct garage where he identified Shirley's car as the burgundy car used in the January 17, 1996 shooting.

The police compared the ballistics evidence recovered from the January 29, 1996 arrest of Williams and Beckford with the ballistics evidence recovered at the January 17, 1996 Page shooting, and the January 5, 1996 Shehadeh homicide. The nine-millimeter shell casing recovered from the floor of the defendant's mother's car on January 29, 1996 matched the nine-millimeter shell casings recovered from the scene of the January 17, 1996 Page shooting. The ballistics expert found no match between the two guns and the nine-millimeter shell casing recovered in the car on January 29, 1996 nor between the two guns and the ten-millimeter shell casing recovered from the scene of Fahmi Shehadeh's murder. [*4]

The Police Investigation of the Shehedeh Homicide

On February 5, 1996, the police showed Sara Shehedeh a photo array containing Kirk Henry's photograph. Upon viewing the array, she said the photo of a different person looked familiar and regarding Henry's photo: "Maybe, but I'm not sure."

On February 11, 1996, Sara Shehadeh was shown approximately 30 photographs, including photos of Craig Williams and Owen Beckford. Shehadeh did not recognize any of the photos. She was then shown an array containing the defendant's photograph. She did not identify anyone from that array.

On February 12, 1996, the defendant's mother, Urcy Shirley, was interviewed by Detective Hopkins concerning who had been using her car, and he informed her that it had been used in a number of shootings. Shirley said she sometimes lent her car to a girlfriend named Sandra, but refused to give a last name or contact information for her. Shirley said that her son, Roberto, also sometimes drove her car.

On March 12, 1996, the police conducted a lineup containing Kirk Henry, who was 24 years-old and five feet, three inches tall. Sara Shehadeh viewed the lineup and selected a filler, but said she was not positive the filler was the shooter.

When interviewed by the police, Kirk Henry denied all knowledge of the Fahmi Shehadeh homicide.

The September 20, 1996 Arrest of Craig Williams

On September 20, 1996, the police arrested Craig Williams after observing him commit numerous traffic infractions. A loaded .45 caliber handgun was recovered from the seat of the 1988 Ford Taurus he was driving.

The online booking sheet prepared in connection with Williams' September 20, 1996 arrest listed him as 20 years-old, five feet, ten inches tall, weighing 200 pounds.

Following this arrest, Williams gave the police information on two crimes. One was the shooting of an "Arab man," where Williams told them that in early January 1996, while he was on East 98th Street, "G-Money", whom he had known for several years, drove up in a red Honda with two American blacks. Williams identified a photograph of the defendant as the person he knew as G-Money.

According to Williams, the defendant told him that he had just come from a house in Canarsie, that the door had been open and he had gone into the house. While in the house, a man started tussling with the defendant for the defendant's gun and he had shot the man and left. The defendant also said he had not gotten any money and that there was a woman in the house.

Williams further told the police that on the day of the crime, the defendant had been driving the same car that Williams was driving at the time of his January 29, 1996 arrest, and that the car was registered to the defendant's mother, named "Urcy". Williams also told the police that the gun the defendant had used was a ten-millimeter. [*5]

Williams told the police that the defendant and Devon Morris (who had been involved in the Page shooting) were hiding out at a house located at 95-37 116th Street in Queens. Williams further stated that he had been to that house on eight to ten occasions and that the defendant and Morris kept .45 caliber Glock and nine-millimeter guns in their bedrooms.

The Defendant's Arrest

On the basis of the information provided by Williams, the police obtained a search warrant for 95-37 116th Street in Queens. On September 21, 1996, the police arrested the defendant, Donovan Morris and Devon Morris as each separately exited the house and then executed the search warrant.

In the front bedroom, the police recovered a loaded and operable .45 caliber handgun. From the rear bedroom, the police recovered two loaded and operable .45 caliber handguns and one loaded and operable nine-millimeter handgun with a defaced serial number. The police also recovered approximately thirteen pounds of marijuana, which were separated into thirteen, one-pound bags. The police recovered two photographs of the defendant holding his son as well as a magazine publication with a mailing label addressed to Christopher Clement. The police also found a rental agreement for the apartment at 95-37 116th Street in the names of Christopher Clement and Everton McKenzie.

At the police station, Detective Hopkins recovered a wallet from defendant's rear pants pocket containing an identification document with the defendant's photograph and the name Christopher D. Clement. The defendant told the Detective that he sometimes used the name Chris but that his real name was Lynden Lobban and that he lived at 826 Crown Street in Brooklyn with his mother Urcy Shirley.

The defendant was informed that he was under arrest in connection with the drugs and guns recovered inside 95-37 116th Street and that the Detective wanted to question him about a homicide in Canarsie in which the defendant's mother's car was used. After being advised of his Miranda rights, the defendant said he understood his rights, but he did not know anything about the homicide.

The police report prepared in connection with the arrest listed the defendant as 21 years-old, five feet, six inches tall, weighing 135 pounds.

On September 22, 1996, Sara Shehadeh viewed a lineup containing the defendant. She identified the defendant as the person who killed her husband, and she said she was positive the defendant was the shooter. She explained she recognized the defendant by his eyes, shape of his face, and by his brown skin color.

The Defendant's Trial and Sentence

For the shooting death of Fahmi Shehadeh, the defendant was charged with two counts of Murder in the Second Degree (PL 125.25[2], [3]), Burglary in the First Degree [*6](PL 140.30[1]), Burglary in the Second Degree (PL 140.25[2]), Criminal Possession of a Weapon in the Second Degree (PL former 265.03), and Criminal Possession of a Weapon in the Third Degree (PL former 265.02[4]).

The defendant was tried before a jury. Sara Shehadeh testified regarding the shooting of her husband and identified the defendant as the shooter.

Craig Williams testified pursuant to a cooperation agreement. At the trial, Williams testified that, on January 5, 1996, he drove the burgundy car owned by the defendant's mother and drove the defendant and another man to a house in Canarsie. Williams testified that he remained in the car while the defendant and the other man left to commit a robbery and that the defendant and the other man went to the door of the house. A little while later, Williams heard a shot and a woman screaming. Williams

began to drive off, but he stopped so the defendant and the other man could get back into the car and then drove away from the scene.

Williams further testified that as they drove away from the scene he asked the defendant what happened. The defendant said that "the guy" grabbed him and tried to take the gun, and the defendant then shot him.

Williams admitted that he had lied in his prior statements to the police about his involvement omitting to say he was involved as the getaway car driver.

At the conclusion of the trial, the defendant was convicted of Felony Murder (PL 125.25[3]) and Burglary in the First Degree (PL 140.20[1]).

On December 11, 1997, the Court sentenced the defendant to concurrent terms of twenty-five years to life on the Murder charge and twelve and one-half to twenty-five years on the Burglary charge (Lipp, J., at trial and sentence).

Williams

On November 5, 1997, in accordance with the terms of his cooperation

agreement, Craig Williams pled guilty to one count of Attempted Criminal Possession of a Weapon in the Third Degree related to the January 17, 1996 shooting of Wayne Page and one count of Attempted Criminal Possession of a Weapon in the Third Degree for his weapons possession on September 20, 1996. On April 7, 1998, Williams was sentenced to concurrent prison terms of three years (Firetog, J., at pleas and sentences).

Henry

On November 21, 1996 Kirk Henry pled guilty to one count of Criminal Possession of a Weapon in the Third Degree. On December 5, 1996, Henry was sentenced to one year. (Bellen, J., at plea and sentence).

On or about September 13, 2000, Henry shot and killed Ricardo Robinson in Brooklyn. On September 22, 2004, following a jury trial, Henry was convicted of Murder in the Second Degree (PL 125.25[1]). On October 14, 2004, Henry was sentenced to twenty-five years to life (Demarest, J., at trial and sentence). Henry is currently [*7]incarcerated on this conviction.

Page

On January 22, 1999, Wayne Page and two accomplices abducted Venniel Nephew at gunpoint in front of his home in Brooklyn. Nephew was forced into a minivan, and when Nephew attempted to open the door he was shot by Page before falling from the van. Page was charged under Kings County Indictment Number 1244/99, with Attempted Murder in the Second Degree, Kidnapping in the Second Degree, Assault in the First Degree and Criminal Possession of a Weapon in the Second Degree. Page was convicted after a jury trial of Kidnapping in the Second Degree, Assault in the First Degree and Criminal Possession of a Weapon in the Second Degree. The jury was unable to reach a verdict on the Attempted Murder charge, and that count was ultimately dismissed. Page was originally sentenced to 20 years (Kreindler, J. at trial and sentence). See People v. Page, 296 AD2D 427 (2d Dept. 2002) (affirming conviction). On January 15, 2013, Page was resentenced to prison terms totaling 15 years and five years of post-release supervision (Carroll, J., at resentencing). Page remains incarcerated on these convictions.

The Defendant's Post-Conviction Litigation

The defendant appealed to the Appellate Division, Second Department raising three claims: (1) that the identification procedures violated due process; (2) the trial court's badgering of prospective jurors had a chilling effect on the panel; and (3) the sentence was excessive. The Appellate Division affirmed defendant's judgment of conviction. People v. Lobban, 288 AD2D 399 (2d Dept. 2001).

Regarding the identification claim, the Court said "[c]ontrary to the defendant's contention, the lineup procedure was not so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law,' " citing Stovall v. Denno, 388 U.S. 293, 302 (1967). Leave to appeal to the Court of Appeals was denied. People v. Lobban, 97 NY2d 757 (2002) (Levine, J.).

On or about June 25, 2002, the defendant filed a pro se motion for a writ of error coram nobis in the Appellate Division, Second Department, claiming he received ineffective assistance of appellate counsel due to a failure to review the trial record and

that counsel failed to argue on appeal that discrepancies between the police reports and the hearing and trial testimony showed that his pre-trial and trial identifications were tainted.

The defendant's motion was denied. People v. Lobban, 298 AD2d 466 (2d Dept 2002).

On April 22, 2003, the defendant's trial counsel filed a petition for a federal writ of habeas corpus in the United States District Court for the Eastern District of New York raising the same three claims as were raised on the defendant's direct appeal to the Appellate Division. [*8]

The defendant's petition was denied in a decision dated January 14, 2004 (Gershon, J.). 03 CV 1393 (NG). In regards to the identification evidence, the District Court concluded that "Mrs. Shehadeh had ample opportunity to see the perpetrator and identify him," and that "balancing of the Neil factors favor finding that the identification was reliable." Lobban v. Phillips, 03 CV 1393 (NG), Order dated Jan. 14 2004, at 7,8; see Neil v. Biggers, 409 US 188 (1972) (describing the factors to be considered in determining whether an identification is reliable).

The defendant's application to appeal the decision of the District Court to the United States Court of Appeals for the Second Circuit was denied on August 3, 2004.

By motion dated July 12, 2007, the defendant represented by another attorney, moved in the Appellate Division for a second writ of error coram nobis. The defendant again argued ineffective assistance of appellate counsel based on counsel's failure to raise the issue of challenges to trial jurors made outside the defendant's presence. The application was denied on January 29, 2008. People v. Lobban, 47 AD3d 949 (2d Dept 2008).

The defendant's application to appeal to the New York Court of Appeals from the Appellate Division's January 29, 2008 order was denied. People v. Lobban, 10 NY3d 936 (2008) (Graffeo, J.).

By application dated February 2, 2009, the defendant, represented by counsel, moved in the Second Circuit Court of Appeals for permission to file a second petition for a writ of habeas corpus based on the claim denied by the Appellate Division on January 29, 2008. By decision and order dated March 17, 2009, the Second Circuit denied defendant permission to file a second habeas petition.

By a pro se motion, dated October 21, 2010, the defendant moved in the Appellate Division, for a third time, for a writ of error coram nobis, on the ground of ineffective assistance of appellate counsel. Defendant again contended that appellate counsel was ineffective for failing to claim on direct appeal that defendant was denied the right to consult with counsel at a critical stage when challenges to prospective jurors were exercised in chambers outside the defendant's presence. The defendant also raised, among other things, that the delayed disclosure of ballistics reports that could have allegedly shown third-party culpability hampered defense counsel's ability to investigate and present evidence in the defendant's defense, and that the Court's ruling with respect to the ballistics reports restricted the defense's cross-examination of a prosecution witness.

By decision and order dated March 15, 2011, the Appellate Division found the defendant had failed to establish he received ineffective assistance of appellate counsel and denied the defendant's third application for a writ of error coram nobis. People v. Lobban, 82 AD3d 1010 (2d Dept 2011).

The defendant's application to the New York Court of Appeals for permission to appeal from the Appellate Division's order, dated March 15, 2011, was denied in an order dated June 6, 2011. (Pigott, Jr., J.). [*9]

By a pro se motion dated July 22, 2011, defendant moved pursuant to CPL 440.20 to set aside his sentence claiming his sentence was illegally imposed and invalid as a matter of law, because of defects in the pre-sentence interview process and report. Furthermore, the defendant's September 26, 2011 Reply raised two new claims: (1) that his attorney was ineffective for failing to advise him that he had a right to counsel during his Probation Department interview; and (2) that his attorney was ineffective for failing to move to re-open the pre-trial Wade hearing.

By decision and order dated October 31, 2011, this Court denied the defendant's motion to set aside his sentence. People v. Lobban, 34 Misc 3d 1226(A) (Kings Sup. Ct. 2011).

By papers dated November 22, 2011, the defendant applied for permission to appeal to the Appellate Division, Second Department, from this Court's October 31, 2011 order denying defendant's motion to set aside his sentence. By order dated April 10, 2012, a judge of the Appellate Division denied defendant permission to appeal.

In November 2011, the defendant moved in the Second Circuit Court of Appeals, for the second time, for permission to file a second habeas petition. By order dated November 28, 2011, the Second Circuit Court denied defendant permission to file a second habeas petition.

The Newly Discovered Evidence Claim

The defendant's claim of newly discovered evidence is based on two separate grounds. The first is that since the trial, in which only one witness, Sara Shehadeh, identified the defendant, scientific research has identified problems in eyewitnesses' ability to identify perpetrators. The defendant contends that evidence concerning these studies (relating to "exposure time," "cross-racial and cross-ethnic inaccuracy," "weapon focus," "lineup fairness," "lineup instructions," "forgetting curve," "postevent information," "wording of questions," "unconscious transference," "simultaneous versus sequential lineups," "eyewitness confidence issues," and "confidence malleability"), all of which pertain to the circumstances pertaining to the in-court identification of the defendant by the People's witness, Sara Shehadeh, 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 (1) (g).

Although the identification testimony of the People's witness, Sara Shehadeh, was supported at trial by Craig Williams, who testified that immediately after the shooting he was with the defendant and at the time the defendant said he had shot a man under circumstances similar to the crime charged, the defense motion contends the testimony of Craig Williams should be viewed as unreliable and incredible, and not supportive of the defendant's identification, because it was based on a cooperation agreement with the District Attorney's office following Williams' arrest on other charges. (These other charges involved a shooting where Craig Williams was subsequently arrested in a car in [*10]which a nine-millimeter shell casing was found which was determined to have been fired from the gun used in the Page shooting.) Further, in his original account to law enforcement authorities of the incident, Williams only said he heard the defendant admit shooting someone during the incident. Williams omitted his later trial testimony that he was actually present at the murder scene and drove the getaway car.

The second piece of the defendant's newly discovered evidence claim is the proposed testimony of Kirk Henry, who while imprisoned at Auburn Correctional Facility, on September 5, 2013 provided a sworn statement submitted in support of this motion stating that Craig Williams (who is now allegedly deceased) admitted to Kirk Henry after Williams' arrest in September of 1996 that, in fact, he had shot the deceased. The defense motion contends that the evidence of Craig Williams' admission to Kirk Henry is likewise newly discovered evidence requiring a new trial pursuant to CPL 440.10 (1) (g).

The Prosecutorial Misconduct Claim

The defense motion also contends that certain trial conduct by the prosecutor, when viewed individually and collectively, denied the defendant due process of law and a fair trial. In the prosecutor's opening statement and summation, the defense motion contends the prosecutor improperly referred to the "truth telling provisions" in the cooperation agreement with Craig Williams resulting in prosecutorial "vouching" for his credibility. The defendant also argues the prosecutor denied the defendant a fair trial by: (1) delayed disclosure of ballistics evidence connecting the murder weapon to the subsequent shooting of Wayne Page — a shooting involving Craig Williams and an unknown person using the defendant's mother's car; and (2) delayed disclosure of the People's intent to call Craig Williams, who, according to the defense motion, was found in possession of the murder weapon, as a prosecution witness.

However, this Court's examination of the record and ballistics reports indicates that, in fact, the purported "murder weapon" was never recovered. Although the ten-millimeter shell casing found at the murder scene was determined to have been fired from the same weapon as ten-millimeter shell casings found at the scene of the Page shootings, the weapon itself was never recovered. Therefore, even though Craig Williams was involved in the Page shooting where the murder weapon apparently was used, the evidence does not demonstrate conclusively Williams possessed the murder weapon at that shooting.

The defense contends that these untimely disclosures prevented the defense from interviewing, and preparing adequately to cross-examine Williams and also impaired the development of an appropriate defense trial strategy. The defense contends that because the police possessed this information well in advance of trial, and because the defense specifically requested all relevant ballistics reports prior to trial, the prosecutor's claim, even if true, to have only learned about this evidence on the eve of trial, does not excuse the timing of its belated disclosure to the defense. [*11]

As to the prosecutor's opening statement and summation, the defense contends the prosecutor inappropriately and repeatedly referred to the "truth telling" provision in Williams' cooperation agreement. The defense argues these comments, in effect, personally vouched for Williams' credibility at trial despite the prosecutor's knowledge that Williams' trial testimony was inconsistent with his original statements to law enforcement in which he falsely minimized his personal involvement in the crime.

The Tainted Identification Evidence Claim

The defense motion next argues that the trial testimony of Sara Shehadeh identifying the defendant should have been precluded, because the pre-trial identification procedures culminating in Shehadeh selecting the defendant in a police-arraigned lineup were "unnecessarily suggestive" to the extent that they violated the defendant's federal constitutional due process rights as established in Manson v. Braithwaite, 432 US 98 (1977).

The defendant's motion notes that Shehadeh was unable to identify the defendant from a photo array, and instead, wrongfully identified the photographs of two other individuals as the possible perpetrator. In addition, the defense argues that Shehadeh's prior viewing of the defendant's photograph at which time she did not identify him tainted her subsequent lineup identification, which itself was unnecessarily suggestive due to the age discrepancy between the defendant and the five other people in the lineup.

The Ineffective Assistance of Counsel Claim

In addition to arguments contained in the motion itself, the defendant's Affidavits submitted as exhibits in support of the motion assert that his trial counsel provided ineffective assistance by not presenting an alibi defense which would have been supported by two witnesses and for not moving to re-open the Dunaway hearing after it was learned that Craig Williams, on whose information the defendant was arrested, had admitted that he was actually the getaway car driver in the murder.

The Actual Innocence Claim

Finally, the defense motion raises a claim that he is actually innocent, based upon the affidavit of Kirk Henry asserting that Craig Williams in 1996 admitted being the actual killer. The claim of actual innocence is bolstered by the previously made arguments concerning the unreliability of the identification made by Sara Shehadeh, the prosecutor's improper vouching at trial to the jury for Williams' credibility, the prosecutor's belated disclosure of evidence impeaching Williams' credibility, as well as affidavits asserting an alibi that was not raised at the trial.

In support of his claim of actual innocence, the defendant submits affidavits from Wayne Page, Lida Gray, and Urcy Shirley.

The affidavit of Wayne Page (who since being shot by a group of people including Craig Williams, Devon Morris, Kirk Henry, and an unknown person, was convicted and [*12]is now serving a 15-year sentence for kidnapping) states he was shot by Craig Williams and Kirk Henry on January 17, 1996 and, further, that the accusation made by Craig Williams that the defendant was involved in this January 17th shooting was false. (Page's accusation that he was shot by Craig Williams was not heard by the trial jury based on a decision by defense counsel pursuant to rulings by the trial court that if the defense elicited this testimony, it would open the door to allowing Williams to testify that the defendant was also involved in the Page shooting.)

The affidavit of Lida Gray, an aunt of the defendant, states that on the evening of the homicide (which occurred about 7:00 p.m.), the defendant was scheduled to be working in her store in Brooklyn. The defendant usually worked there seven days a week, from noon to midnight. Gray recalled leaving the defendant in the store at approximately 5:00 to 5:30 pm and returning at about 8:00 pm. Upon returning, her affidavit states she recalls not seeing the defendant's car parked in front of the store where it had been when she left. The defendant, however, was inside the store, and when asked, the defendant said a friend had borrowed the car.

The affidavit of Urcy Shirley, the defendant's mother, states that the defendant was scheduled to be working in her sister, Lida Gray's, variety store at the reported time of the murder, based on his regular seven-day-a-week, noon-to-midnight schedule. The affidavit further states that she told the defendant's trial attorney about this potential alibi.

Discussion

The true linchpin of this motion and the claim of actual innocence is the affidavit of Kirk Henry asserting that Craig Williams admitted being the actual killer. The other points in this motion are not, for the reasons discussed below, in and of themselves a sufficient basis to vacate the judgment. However, they are, nevertheless, relevant, because they either tend to support the probative value of Kirk Henry's affidavit (i.e. the purported unreliability of Sara Shehadeh's identification of the defendant and the truthfulness of the defendant's purported alibi) or tend to show that there is a likelihood of a verdict more favorable to the defendant at a new trial, because the new trial would not contain the purported faults of the first trial (i.e. the absence of expert testimony concerning the reliability of Sara Shehadeh's identification, the purported improper prosecutorial references to the "truth telling" aspects of Craig Williams' cooperation agreement, the failure to assert an alibi defense, and the belated disclosure of ballistics evidence connecting Craig Williams to the homicide).

I. The Defendant's Arguments Regarding Newly Discovered Evidence

The claim that expert testimony on the issue of identification constitutes newly discovered evidence warranting vacating this conviction does not meet the requirements of CPL 440.10 (1) (g). [*13]

First, expert testimony on at least some aspects of the various factor's affecting the reliability of eyewitness identification was known at the time of the defendants 1997 trial. See People v. Mooney, 76 NY2d 827, 829-30 (1990) (Kaye, J. dissenting citing several cases and law review articles on the subject and starting at P. 30: "...the emerging trend today [seven years before the trial in this case] is to find expert psychological testimony on eyewitness identification sufficiently reliable to be admitted, ... .")

A second requirement of CPL 440.10 (1) (g) is that the motion must be made "with due diligence after the discovery of such new evidence." This ground is now raised many years after general acceptance by the New York Courts of expert psychological testimony concerning identification was well-known to the legal community. See People v. Santiago, 17 NY3d 661, 666-667 (2011); See People v. Abney, 13 NY3d 251 (2009), People v. LeGrand, 8 NY3d 449 (2007); (specifically discussing most of the factors raised in the defendant's motion); People v. Lee, 96 NY2d 157 (2001).

The defendant's memorandum of law at (unnumbered pages 4-5) even cites various articles on the subject published between 1998 and 2004 as well as a lower court case dating back to 1985 admitting expert identification testimony. See People v. Brooks, 128 Misc 2d 608 (County Ct, Westchester County 1985).

The defendant's Reply, at 3, argues that even though this type of evidence was, in fact, generally known at the time of the defendant's trial, "it had not gained general acceptance." Nevertheless, this argument does not magically open the door to new trials for convictions based on eyewitness identification testimony where the defense at trial never sought to introduce expert testimony on the subject.

Thus, raising the issue for the first time as "newly discovered evidence" in 2013 not only fails to meet the requirement that the newly discovered evidence could not be produced at trial with the exercise of due diligence, but also fails the second requirement that the motion on this ground be brought with due diligence after its "discovery". CPL 440.10 (1) (g).

The defendant's Reply to this argument, at 5, states that this information concerning expert identification testimony was brought to the defendant's attention in 2013 by his present counsel. It is not necessary to this decision to decide either whether the failure of the prior attorneys who represented the defendant to raise this issue excuses the belated claim or whether an un-represented, incarcerated defendant is excused from staying abreast of developing legal trends. Suffice it to say, as discussed below, that this claim does not warrant vacating the judgment.

Further, CPL 440.10 (1) (g) requires that "newly discovered evidence" must not "merely impeach or contradict the evidence introduced at trial." However, the proposed expert testimony is irrelevant for any other purpose than to impeach, i.e., cast doubt upon, the testimony of Sara Shehadeh. People v. Clarke, 110 AD3d 1341, 1343 (3d Dept. 2013). The defendant's Reply, at 6, argues that this type of expert testimony is not within this disqualification. However, if it is not, then as noted above, where a defendant's [*14]identification was in issue, the door to a new trial potentially opens in every "old" case tried before the acceptance of this testimony.

Finally, and even taken in conjunction with a consideration of the proposed evidence of Craig Williams' admission to Kirk Henry, the defendant's motion has not established that the proposed expert testimony creates a probability of a verdict more favorable to the defendant. CPL 440.10 (1) (g); CPL 440.30 (6) (the defendant has the burden of establishing at a hearing this probability by a preponderance of the evidence); CPL 440.30 (4) (b) (the motion may be denied without a hearing if the moving papers do not tend to substantiate all the essential facts).

As will be discussed in more detail below, not only was the defendant's mother's car connected to this crime, the defendant's description (five feet, six inches, 135 pounds) matched Shehadeh's description of the shooter ("skinny"and shorter than her husband who was five feet, seven inches), whereas the person now asserted by the defendant to be the shooter, Craig Williams, was approximately five feet, eleven inches and weighed a far from "skinny" 200 to 220 pounds.

As to the "newly discovered evidence" in the affidavit of Kirk Henry claiming he was told by Craig Williams that, he, Craig Williams, was the real murderer and had, therefore, lied at the defendant's trial, this also is insufficient to vacate the judgment.

The defendant's motion does not state when the defendant learned of Kirk Henry's exculpatory information which Kirk Henry allegedly knew since 1996. Therefore, the motion does not demonstrate that it was brought with due diligence after its discovery. CPL 440.10 (1) (g). The defendant's Reply, at 9, does not provide this information but only asserts that, "there is no reason to believe [the defendant] could have obtained this information pre-trial."

Further, the supporting circumstances surrounding the making of this alleged statement by Craig Williams to Kirk Henry are hardly "trustworthy" and "reliable." People v. Settles, 46 NY2d 154; People v. Ennis, 11 NY3d 403, 412-413 (2008). Nevertheless, because the statement directly exculpates the defendant, it would be subject to a more lenient standard for admission into evidence than a declaration against penal interest of lesser significance. People v. Settles, 46 NY2d at 169-170; People v. Soto, 976 NY2d 87 (1st Dept. 2013); People v. Deacon, 96 AD3d 965 at 968 (2nd Dept. 2012).

Even assuming the admissibility of the hearsay statement to Kirk Henry (and assuming Craig Williams is either dead or otherwise unavailable), the statement, based on the circumstances of this case, does not result in a probability of a more favorable verdict.

First, as noted, Craig Williams does not fit the description of the shooter given by Sara Shehadeh whereas the defendant does fit the description. The defendant was approximately five feet, six inches tall and weighed 135 pounds; Craig Williams was described in various police reports as approximately five feet, nine inches to five feet, eleven inches tall and weighed between 200 to 220 pounds. This is a significant factor detracting from the credibility of Williams' alleged admission to being the shooter and the [*15]probability of a more favorable verdict to the defendant, particularly when the testimony of this purported admission would be coming from Kirk Henry.

In addition to Kirk Henry's alleged 17-year delay in disclosing this information to the defendant which would also be until after the purported death of Craig Williams, Henry's credibility is extraordinarily diminished by both his current incarceration for murder and his prior shooting of Wayne Page, as well as his personal friendship with the defendant providing him with a motive to provide a benefit to the defendant and little to lose for swearing falsely.

If these reasons were not alone sufficient to discredit Kirk Henry, there is the remarkable connection between this motion and the motion made in People v. Deacon, 96 AD3d 965 (2nd Dept. 2012), which as cited above, discussed the lesser standard for admissibility to be applied to an exonerating hearsay statement brought forth as newly discovered evidence. As in this case, Deacon involved an exculpatory confession made by an unavailable declarant as a basis for a newly discovered evidence motion made many years after the conviction.

The extraordinary connection between this case and the Deacon case is that, according to records detailed in the People's Answer, at 19, Deacon's brother was the live-in boyfriend of the defendant's mother. As stated in the People's Answer, to accept Kirk Henry's allegation as true, both the son and the boyfriend of the defendant's mother were wrongfully convicted of separate murders even though, in each case, the actual murderer confessed to a third-party but was unavailable to testify to refute the alleged admission at the time this "newly discovered evidence" was disclosed to the Court.

Even if Deacon's ultimate acquittal after a retrial in November of 2013 was a miscarriage of justice, it was a separate case and, therefore, of course, should not be held against this defendant as a reason to disbelieve Kirk Henry.

However, the undeniable conclusion is that the family of this defendant is well-acquainted with the mechanism for obtaining a new trial based on a purported confession from an unavailable person, and Kirk Henry, a friend of the defendant with little to lose, is in a position to carry out a formula that has recently worked for the defendant's family in another case.

Regardless of the relevance of the Deacon case to this motion, based on the credibility of Kirk Henry as a witness and all the circumstances surrounding his affidavit, when also considering that Craig Williams was considerably taller and heavier than the shooter described by Sara Shehadeh and the evidence that the defendant's mother's car was used in this crime, the newly discovered hearsay evidence that Craig Williams confessed to Kirk Henry is so incredible that this evidence would not result in a verdict more favorable to the defendant. People v. Feliciano, 240 AD2d 256 (1st Department 1997) (purported confession to a murderer serving a life sentence); People v. Bridget, 73 AD2d 291, 296 (2nd Dept. 1980).

[*16]II. Defendant's Arguments Regarding the Discovery Process

The defendant claims the People belatedly informed his trial counsel that Craig Williams would be called as a witness and belatedly provided the ballistics reports that could have been used to cross-examine Craig Williams regarding his possible connection to the ten-millimeter shell casing found at the murder scene. However, because sufficient evidence of these circumstances appear on the record of the proceedings to have allowed these claims to have been raised on the defendant's direct appeal, and there is no justification for not having done so, a CPL 440.10 motion based on these claims must be denied. CPL 440.10 (2) (c); People v. Stewart, 16 NY3d 839, 840-841 (2011) citing People v. Cooks, 67 NY2d 100, 104; People v. Cuadrado, 9 NY3d 362, 365 (2007); (1986); People v. Bruno, 97 AD3d 986 (3rd Dept. 2012).

The timing of the People's disclosure of this information was discussed at length on the record during the voir dire (20-28) and at the beginning of the trial (3-12).

If further arguments about these claims needed to be made by defense counsel as to the impact of the delayed disclosure, such arguments could have readily been made to appear on the record, even up to the point where the defendant was sentenced, and thereby provided an adequate basis to review these claims on appeal. Where such a record is not made without justification, a motion to vacate the judgment based on these grounds may be denied. CPL 440.10 (3) (a). The defendant's extensive delay in raising this issue, would militate in favor of the Court's exercise of its discretion to deny the motion. People v. Patrick, 24 Misc 3d 120 3, 4 (A), 2009 WL 1737402 (Sup Ct. NY County 2009).

Furthermore, the identity of Craig Williams as a cooperating witness was disclosed to the defense in a manner consistent with the trial court's finding that the timing of the disclosure was appropriate due to concerns for the witness' safety. In addition, the defense has not established that the timing of this disclosure violated either a statutory discovery rule or a Constitutional right. As noted above, defense counsel at trial had ample opportunity to raise these claims prior to sentencing so that they could be fully addressed, either by the trial court or on direct appeal, and did not do so.

The alleged prejudicial impact of the timing of this disclosure cannot be evaluated based upon the revelations of Kirk Henry that Craig Williams purportedly confessed to being the actual shooter. Because the defense allegedly did not know about the alleged confession of Williams to Kirk Henry prior to the trial, this alleged confession would not have been available to the defense at the trial, regardless if Craig Williams' identity had been disclosed earlier in the litigation.

Even though it was disclosed when the prosecutor first learned of it, the ballistics report should have been disclosed well in advance of trial pursuant to routine discovery practice. See CPL 240.20 (1) (c). Nevertheless, as with the claim concerning the belated [*17]disclosure of the identity of Craig Williams as a prosecution witness, the belated disclosure of the ballistics report cannot serve as a basis to vacate the conviction, because this issue was not raised on the defendant's direct appeal even though the record was sufficient to have permitted a review of this ground. CPL 440.10 (2) (c). In fact, the defendant has unsuccessfully claimed appellate counsel was ineffective for failing to raise this ground on direct appeal. People v. Lobban, 82 AD3d 1010 (2nd Dept. 2011).

Further, as detailed in the People's Answer at 31-33, the defendant not only had a meaningful opportunity to use the evidence contained in the ballistics report at the trial, the defense made a tactical decision not to introduce this evidence. The trial court ruled that if the defense chose to adduce evidence concerning information in the ballistics report about the shell casings recovered at the scene of the Page shooting or the caliber of the gun recovered from Craig Williams at the time of his January 29, 1996 arrest, such evidence would open the door to testimony from Craig Williams that the defendant was also present at the Wayne Page shooting (trial transcript at 15-21; 76-78; 79-81, 165-166; 177-178).

Because the defendant had a meaningful opportunity at the trial to use the information contained in the ballistics report, its belated disclosure did not deprive the defendant of a fair trial nor did it constitute a Brady violation requiring vacatur of the judgment. People v. Cortijo, 70 NY2d 868, 870 (1987); People v. Myron, 28 AD3d 681, 683-684 (2nd Dept. 2006) cert. denied, 549 U.S. 1326 (2007); People v. Watson, 17 AD3d 385 (2nd Dept. 2005).

Finally, the defendant has failed to demonstrate that had either the identity of Craig Williams or the evidence in the ballistics report been turned over at an earlier point in the litigation, that there is even a reasonable possibility that the verdict would have been more favorable to the defense, and, thus, the defendant's claim of a Brady violation, reviewable pursuant to CPL 440.10 (1) (h), is without merit. People v. Vilardi, 76 NY2d 67 (1990).

The defendant's claims that these delays prejudiced his trial attorney's ability to investigate the case and prepare proper cross-examination of Craig Williams is speculative and unsupported by a factual affidavit from trial counsel. In the absence of a specific and sworn factual statement establishing such prejudice, the motion may be denied. CPL 440.30 (4) (b).

III. The Defendant's Arguments Regarding the Prosecutor's Opening Statementand Summation

Because the prosecutor's opening statement and summation were on the record, any improprieties therein were reviewable on direct appeal, and, therefore, these matters cannot be raised in a motion to vacate the judgment. CPL 440.10 (2) (c).

The defendant's motion on this point fails to even allege facts that are not already on the record which would serve to establish fraud or misrepresentation on the part of the [*18]prosecutor in either the opening statement or summation. Therefore, the defendant's motion fails to allege fact de hors the record essential to support the motion based on the claims. C.L. 440.30 (4) (b). Thus, the defendant is barred by C.L. 440.10 (2) (c) from seeking to litigate the propriety of the prosecutor's on-the-record statements.

IV. The Defendant's Claim Concerning the Lineup Identification Procedure

The defendant's claim on this motion concerning the suggestiveness of the lineup identification was raised on direct appeal and rejected. People v. Lobban, 288 AD2d 399 (2nd Dept. 2001). The same claim in the absence of a retroactive change in the law, is now barred from being raised on this motion. C.L. 440.10 (2) (a); People v. Carter, 105 AD3d 1149 (3rd Dept. 2013).

In addition, the same claim was made and denied in a federal habeas corpus proceeding. Lobban v. Phillips 03 CV 1393 (ED NY 2004). See People's Exhibit C.

Therefore the same claim made on this motion may also be denied as a matter of discretion. C.L. 440.10 (3) (b).

V. The Defendant's Arguments Regarding Ineffective Assistance of Counsel

The defendant's own Affidavits on this motion (Affidavits of July 19, 2011, Par. 26 and Par. 40) raise the argument that he received ineffective assistance of trial counsel, although the defendant's Memorandum of Law does not refer to this issue as an independent basis for granting the motion.

The defendant argues he received ineffective assistance of trial counsel when trial counsel failed to move to reopen the Dunaway hearing after it was learned that Craig Williams, who provided probable cause for the defendant's arrest and placement in a lineup, had not been truthful in omitting to tell the police that he learned of the defendant's participation in this crime in his role as the driver of the getaway car.

Because this matter was on the record, it could have been raised on the defendant's direct appeal. The failure to do so bars its review on this motion. CPL 440.10 (2) (c).

Furthermore, the defendant previously raised this claim in his September 26, 2011 Reply filed in support of his July 22, 2011 pro se CPL 440 motion which was denied by this Court on October 31, 2011. People v. Lobban, 34 Misc 3d 1226 (A).

The second issue concerning ineffective assistance of counsel raised in the defendant's Affidavits is the failure to interpose an alibi defense at trial, although the defendant alleges he specifically informed counsel he wished to do so.

This is the same alibi that is raised on this motion to support the defendant's present claim of actual innocence. The details of this alibi will be discussed below in this opinion under that heading.

Consideration of this alibi under a claim of actual innocence is not procedurally barred, even though the alibi was not raised at trial. People v. Hamilton at 104-105.

Insofar as whether the failure to interpose an alibi defense in this case in and of [*19]itself constitutes ineffective assistance of counsel and an independent basis to order a new trial, the motion fails to contain sworn allegations tending to substantiate all of the essential facts necessary to establish that such failure constitutes ineffective assistance. CPL 440.30 (4) (b). (Indeed, the motion itself does not even make this claim; it is only made in the defendant's Affidavits).

The defendant's Affidavits fail to establish that defense counsel's decision not to pursue the alibi defense now asserted was not within a well-advised defense strategy. People v. Ford, 46 NY2d 1021 (1979); People v. Atkins, 107 AD3d 1465 (4th Dept. 2013). As further discussed below, the alibi was based on the testimony of the defendant's aunt who could not account for the defendant's exact whereabouts at the time of the crime and the defendant's mother who not only could not account for his exact whereabouts, but also would have had to explain why her car just happened to be used on three occasions to carry people with guns, one of those occasions being the January 5, 1996 murder charged in this case, the other two being the Page shooting on January 17, 1996 and the arrest of Williams and Owen Beckford on January 29, 1996.

Suffice it to say that there was sufficient reason why the motion filed by counsel in this case does not raise the argument that trial counsel was ineffective for not presenting this evidence.

VI. The Defendant's Claim of Actual Innocence

The defendant on this motion has not met the burden to establish by clear and convincing evidence that he is actually innocent. Hamilton at 108. This is a higher burden than "a preponderance of the evidence" which is the standard required by C.P.L. 440.30 (b) to be met by a defendant to establish the essential facts on a motion to vacate judgment based on a constitutional violation or newly discovered evidence. Hamilton at 108. The burden of proof on a defendant claiming actual innocence is higher than on a defendant seeking a new trial based on either a constitutional violation or newly discovered evidence, because a defendant claiming actual innocence is no longer presumed innocent after being convicted and, in fact, is presumed guilty. Hamilton at 108.

"Actual innocence" means factual innocence, not mere legal insufficiency of evidence of guilt [citation omitted] and must be based on reliable evidence which was not presented at the trial [citation omitted]." Hamilton at 104 (emphasis supplied). "A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration' by the Court." Hamilton at 108 (citations omitted). In this case, the defendant's guilt at trial was established by the identification testimony of Sara Shehadeh and the accomplice testimony of Craig Williams as well as the evidence connecting the defendant's mother's car to the crime. [*20]

This inculpatory evidence is not sufficiently undermined by the hearsay affidavit of Kirk Henry disclosing a statement allegedly made to him many years before by Craig Williams who is purportedly now deceased. Further, as noted above, Henry, based on his criminal record, is simply not a credible individual. Henry has both a motive to lie and virtually nothing to lose by doing a favor for his friend, the defendant.

The defendant's purported alibi is based on the affidavit of his mother asserting that the defendant usually worked at the hours when this crime was committed, but she does not claim to have been with the defendant at that time. In addition, it was the defendant's mother's car that was used in this crime on January 5, 1996, and in the subsequent shooting of Wayne Page on January 17, 1996 and by Craig Williams when he was subsequently arrested in possession of a gun on January 29, 1996. (This may be why defense counsel did not call her as an alibi witness at the trial.)

Neither does the affidavit of the defendant's aunt, Lida Gray, sufficiently establish the defendant's actual innocence so as to warrant even a hearing. In addition to her familial connection to the defendant, her affidavit (disregarding the change in the middle of her affidavit from the first person, "I", to the third person, "she") states she saw the defendant in the store at about 8:00 p.m., whereas the murder was committed at about 7:00 p.m.

Assuming the defendant's trial attorney was aware of this purported alibi, it may very well have been his professional assessment not to raise this alibi defense at trial due to its obvious lack of persuasive effect even though at trial the People would have had the burden to disprove it beyond a reasonable doubt. If this alibi lacked sufficient credibility to be used at the defendant's trial in the professional judgment of defense counsel, the same alibi certainly has no more credibility 17 years later on this motion. This purported alibi, based on the circumstances, does not constitute "clear and convincing" evidence of actual innocence, even in combination with the suspicious affidavit of Kirk Henry, so as to even warrant a hearing.

Finally, the affidavit of Wayne Page asserting that only Craig Williams and Kirk Henry but not the defendant were involved in shooting him does not sufficiently establish the actual innocence of the defendant. Because ballistics evidence tended to show the same gun was used in both the murder and the subsequent shooting of Wayne Page, disassociating the defendant from the Wayne Page shooting would also tend to disassociate the defendant from the murder. However, even if true, the affidavit of Wayne Page does not affirmatively establish by clear and convincing evidence the defendant's innocence or the murder.

The affidavit of Wayne Page states he did not see the defendant at the scene of his own shooting. However, this affidavit does not establish that the defendant was not there, and more significantly, does not establish that the defendant did not previously possess the gun and use it to shoot the deceased in this case. Based on the evidence that the defendant was closely associated with both Kirk Henry and Craig Williams, the persons [*21]identified by Page as participants in his shooting, the same gun could have passed from the defendant, after he used it in the murder, to Craig Williams who subsequently used it to shoot at Wayne Page (while using the defendant's mother's car and riding with an unknown person).

Therefore, the affidavit of Wayne Page is of little probative value in establishing the actual innocence of the defendant.

The unreliable evidence of actual innocence in this case is readily distinguishable from the circumstances in Hamilton which were found to warrant a hearing. In Hamilton, a hearing on the defendant's claim of actual innocence was held to be warranted based upon the first-person recantation of the identifying witness, Jewell Smith, promptly made in testimony to the Court prior to the defendant's being sentenced, the discovery of exculpatory evidence that Smith had told the police shortly after the crime that she did not witness the crime, the discovery of a new defense witness who claimed to be with Smith in a supermarket at the time of the crime, and two newly discovered alibi witnesses who corroborated the alibi provided by two other witnesses named in the defendant's notice of alibi but who did not testify at the trial due to their unavailability. Hamilton at 99.

The persuasive character of the evidence of actual innocence in Hamilton is orders of magnitude beyond what is presented by the defendant in this case even though in both cases the respective claims of actual innocence are based on a recantation and "new evidence" of an alibi.

A motion to vacate judgment where the burden of proof is only by a preponderance of the evidence may be denied without a hearing if the moving papers do not contain sworn allegations "tending to substantiate all the essential facts". C.L. 440.30 (4) (c). In this case, the defendant claiming "actual innocence" has to meet an even higher burden of "clear and convincing evidence" that he was wrongfully convicted. The defendant's moving papers, relying on a 17 year-old hearsay recantation and confession given to a convicted murderer and friend of the defendant by an accomplice who does not fit the description of the perpetrator and an alibi supplied by two relatives who were not called as witnesses at the defendant's trial, does not meet the standard set by Hamilton to merit a hearing on the claim.

Accordingly, the defendant's motion is in all respects denied.

SO ORDERED

JOEL M. GOLDBERG

JUDGE