Supreme Court, Richmond County, November 2, 2022

Law Offices of Gary R. DeFilippo, PC, Staten Island (Gary R. DeFilippo of counsel), for defendant.

Michael E. McMahon, District Attorney, Staten Island (Timothy Pezzoli of counsel), for plaintiff.

[*2]This matter is before the court on the motion of defendant Timothy Turner (hereinafter, defendant or Turner), brought pursuant to Criminal Procedure Law §§ 440.10 (1) (g) and 440.30, in which he asserts that newly discovered evidence, in the form of an affidavit (hereinafter, the Moore affidavit) of his codefendant Jermaine Moore (hereinafter, Moore) and the affirmation and arguments of his attorney, establishes that he is entitled to a new trial of this matter. He further asserts that the Moore affidavit establishes his actual innocence, and that as a result his convictions should be vacated. Defendant cites to CPL 440.10 (1) (h) on the actual innocence claim in his reply. Defendant seeks an evidentiary hearing on each of these bases.

For the reasons further explained herein, the court will hold an evidentiary hearing on the defendant's motion, as he has made a sufficient showing within the meaning of case law on this actual innocence claim. In light of this, the court reserves decision on all other aspects of the motion.

This court presided over the trial and the sentencing hearing in this matter. The defendant was convicted on June 19, 2019, upon a jury verdict finding him guilty of one count of robbery in the first degree and two counts of robbery in the second degree. The court sentenced defendant on September 11, 2019, to concurrent prison terms of 12 years on the robbery in the first degree conviction and eight years on the two counts of robbery in the second degree conviction. The court also sentenced the defendant to concurrent five-year terms of postrelease supervision.

Moore was charged in the same indictment with defendant. He was at large at the time of defendant's trial. He was ultimately arrested and later pleaded guilty to one count of{**77 Misc 3d at 448} robbery on February 26, 2020, and thereafter was sentenced to a seven-year prison term.

This matter involved the robbery of complainant Richie Hernandez (hereinafter, complainant or Hernandez), who owned a barber business, "Richie's Barber Shop" (hereinafter, barbershop), in Staten Island. The People's theory of the case was that the defendant worked in concert with Moore, his codefendant, so that Moore could rob Hernandez of the valuable jewelry he was known to regularly wear. The People have estimated that Hernandez's jewelry, which included a heavy gold chain and a Rolex watch, had a value of approximately $41,000.

The evidence at trial included video recordings of the robbery from two security cameras in the barbershop, each with a different view, as well as testimony of several witnesses and telephone records. The video evidence captures the robbery and shows the defendant in the shop from the time he arrived. It shows his participation in assisting Moore during the robbery.

Defendant did not testify at trial or present evidence, as was his constitutional right. The defense argued that Turner was an innocent bystander, who had merely been there for a haircut, and essentially put the People to their proofs. In summation, the defense argued that the evidence showed only that defendant acted under duress, persuaded only by the gun in Moore's hand, and at his direction, when he helped push Hernandez into the barbershop bathroom.

The evidence at trial included testimony that defendant made an appointment with Hernandez and specifically asked for the last haircut appointment of the day, which was at 7:30 p.m. Defendant and Hernandez also arranged to go out socially after the haircut. It would have been the first time the two went out together socially. Defendant had gone to Hernandez to have his hair cut several times prior to this occasion and the two were acquainted on social media. Defendant arrived late for his haircut. Hernandez testified that at about 7:45 p.m., defendant and he communicated and defendant asked him if he was alone. A third person, Anthony Filion, a regular client and friend of Hernandez, who had just finished his standing appointment for a weekly haircut, also was present at the shop.

After Filion, Hernandez and defendant had been engaged in conversation, and while defendant was still in the barber chair, Filion left the barbershop to go to a liquor store to buy liquor{**77 Misc 3d at 449} for the bar at the shop. Defendant can be seen on the video interacting with Filion and watching him leave through the door to the premises. Defendant's face was turned looking toward the doorway as Filion left. Defendant then immediately began typing on a cell phone. Hernandez testified he noticed the I-message "app" open on the phone, and that the screen was cracked on defendant's phone. He told defendant he could fix the cracked screen and went to take the phone from him, but defendant locked the screen before Hernandez looked at the phone.

Within about three minutes of defendant typing on his phone, Moore entered the store holding a handgun. Hernandez resisted Moore's attempt to rob him and the two scuffled, with Moore pushing Hernandez further into the shop. When Moore entered the shop, Turner is seen crouched on the ground by the barber chair. Hernandez testified that, during this struggle, Moore told Turner to help him push Hernandez into the bathroom. Turner got off the floor and is seen on video helping to push the complainant toward the bathroom along with Moore. Hernandez testified that once he and Moore were inside the bathroom, Turner closed the bathroom door. Hernandez testified that Moore did not shout any instructions to defendant. The bathroom door is not seen on the video.

After this, Turner can be seen on video walking back into view and looking toward the bathroom. He then walked to the front of the barbershop and closed the curtains that hung in the windows on each side of the barbershop. To do this, he had to walk over to each side of the shop door and reach to pull each curtain, including walking partly behind a couch on one side. Defendant then paused, took off the barber cape he was still wearing, collected his coat and left the shop, looking around as he stepped outside of the shop.

Meanwhile, Moore pistol-whipped Hernandez in the bathroom, injuring his head and causing bleeding. Moore and Hernandez struggle further in the shop, outside of the bathroom, then Moore left the shop.

Defendant's motion is predicated on the Moore affidavit, which is dated April 30, 2022. (Defendant's exhibit D on the mot.) The Moore affidavit is five paragraphs in length, and states in pertinent part that Moore acted alone; that Moore ordered the defendant to push [*4]Hernandez into the bathroom;{**77 Misc 3d at 450} that the defendant had nothing to do with robbery and should not have been his codefendant; and that Moore would be willing to testify to these statements. The May 23, 2022 affirmation of defense counsel submitted in support of the motion states that Moore had completed an earlier affidavit (defendant's exhibit C on the mot), which Moore appears to have executed before a notary public on July 22, 2021, about 10 months before the motion was filed. Defense counsel explains in the motion that the later affidavit was completed due to potential chain of custody issues.

Specifically, defendant's notice of motion states in part that defendant is seeking an order vacating the judgment of conviction and sentence and dismissing the indictment on the ground of newly discovered evidence in that the alleged codefendant, Jermaine Moore, has admitted that he was the sole perpetrator of the crime; and an order granting a hearing to permit Jermaine Moore to testify in support of his affidavit. Defendant also seeks an order vacating the judgment and dismissing the indictment on the ground that defendant is "actually innocent" based upon the affidavit of Jermaine Moore that he acted alone in committing the robbery.

Defendant argues that the affidavit constitutes newly discovered evidence that probably would have resulted in a different verdict had the evidence been produced at trial pursuant to CPL 440.10 (1) (g). He further argues that the remaining requirements for a motion for a new trial based on newly discovered evidence, as interpreted by People v Salemi (309 NY 208 [1955]) and People v Hamilton (115 AD3d 12 [2d Dept 2014]), are met, such that the conviction should be vacated.

The People argue that the Moore affidavit is not "newly discovered evidence" within the meaning of CPL 440.10 (1) (g). In this regard, the opposition papers assert that the defendant's argument confuses the substance of the evidence with the form of the evidence. The People argue that the contention that defendant and Moore did not know each other would have been known to defendant. Thus, it does not constitute new evidence, citing to several cases, including People v Cain (96 AD3d 1072 [2d Dept 2012]); People v Taylor (246 AD2d 410 [1st Dept 1998], lv denied 91 NY2d 978 [1998]); and People v Backus (129 AD3d 1621 [4th Dept 2015]).

The People further argue that, even if the Moore affidavit could be considered newly discovered evidence, the motion fails because there is no reasonable probability that it would have{**77 Misc 3d at 451} led to a more favorable verdict for defendant since Moore's averments are incredible, and do not undercut the witness testimony or the video evidence presented at trial. They also argue that, even assuming the veracity of the affidavit, Turner would still be guilty as an accomplice regardless of whether the two had a prior arrangement to "set up" Hernandez, since Turner aided and participated in the robbery and intended to assist Moore in stealing property from Hernandez. The People ask for the motion to be denied in toto without a hearing because the predicates of CPL 440.10 (1) have not been met. (CPL 440.30 [4] [a].)

A. Defendant's Actual Innocence Claims

Defendant contends that the Moore affidavit establishes his actual innocence. In his reply papers, he states that he is moving pursuant to CPL 440.10 (1) (h), which allows for a motion to vacate a conviction entered in violation of a right of the defendant under the State or Federal Constitutions. He asserts that, if the court finds that the Moore affidavit is credible [*5]evidence, it also exonerates him of the crime and as such the conviction should be vacated and the charges dismissed. Although CPL 440.10 (1) (h) appears to be cited explicitly only in the reply, the court will exercise its discretion to review this claim on its merits.

The People, citing People v Tiger (32 NY3d 91 [2018]), among other cases, oppose the actual innocence basis for the motion. They first argue that a claim of actual innocence based on the production of new evidence inconsistent with guilt can only be considered within CPL 440.10 (1) (g), and thus all of the requirements of CPL 440.10 (1) (g) must be met. The Appellate Division, Second Department in People v Hamilton (115 AD3d 12), decided in 2014, allowed consideration of a stand-alone claim of actual innocence, but noted that the "question of whether New York recognizes a freestanding claim of actual innocence has not been conclusively determined" (id. at 25 [citations omitted]). Thereafter, the Court of Appeals decided People v Tiger. Tiger appears to hold, as the People assert, that a claim of actual innocence based on a claim of newly discovered evidence must be considered under CPL 440.10 (1) (g), not as a freestanding claim under CPL 440.10 (1) (h), as a conviction that involved a constitutional violation. The People acknowledge that, to date, the Second Department has not stated expressly whether Tiger so holds, and how it affects Hamilton's conclusion that a stand-alone claim of actual innocence can be brought under CPL 440.10 (1) (h).{**77 Misc 3d at 452}

This court is bound to apply Hamilton. Hamilton continues to be cited by Second Department cases post-Tiger, albeit perhaps where Tiger's application has not been squarely at issue (see e.g. People v Fraser, 165 AD3d 697 [2d Dept 2018]), cited by the People. Further, Tiger involved a guilty plea, unlike this case, and the Court of Appeals discussed at length the effect of a guilty plea on a defendant's rights; thus, application of Tiger to this matter would not be automatic, nor directly to the point. In the absence of a Second Department case interpreting Tiger's application in these circumstances, the court will consider the merits of the defendant's actual innocence claim under CPL 440.10 (1) (h).

To prevail under CPL 440.10 (1) (h), a defendant must demonstrate by clear and convincing evidence, which evidence was not presented at trial, his factual innocence, i.e., that he was actually innocent of the crimes for which he was convicted. (See People v Hamilton at 23.) "Actual innocence," as grounds for vacatur of judgment of conviction, means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence that was not presented at trial. Further, "[m]ere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty." (People v Hamilton at 27.) A hearing is required when defendant makes a prima facie showing of actual innocence. A prima facie showing is made when, as here, there is a sufficient showing of possible merit to warrant a fuller exploration by the court. (People v Woods, 120 AD3d 595 [2d Dept 2014], lv denied 24 NY3d 1090 [2014].) CPL 440.30 (4) (a) provides, in pertinent part, that upon considering the merits of a motion to vacate, the court may deny the motion without conducting a hearing if there is not a sufficient showing of possible merit to warrant a fuller exploration by the court. But here, the court is convinced that, given the affidavit presented, a hearing is required (see People v Pottinger, 156 AD3d 1379 [2017]). Borrowing from principles in civil cases, it is not the function of the courts to determine credibility issues posed in affidavits; their role is to determine whether factual [*6]issues exist (HPHD Invs. Group, LLC v Ioannou, 188 AD3d 1168, 1170 [2d Dept 2020]). The court cannot say that, as a matter of law, the averments contained in the Moore affidavit contain clearly apparent untruths (see Krupp v Aetna Life & Cas. Co., 103{**77 Misc 3d at 453}AD2d 252, 262 [2d Dept 1984]; Coleman v Village of Head of Harbor, 163 AD2d 456, 457 [2d Dept 1990]).

The court will hold an evidentiary hearing regarding this aspect of the motion. In considering the Moore affidavit, the court notes that Moore made the affidavit after his sentencing for the robbery, at a time when he had, in a manner of speaking, nothing to lose. That his statement was made long after he admitted his guilt to the crime, without corroboration, would impact its weight, as it was no longer against his interest to implicate himself. (See People v Backus, 129 AD3d 1621, 1624 [2015] [stating in part "(t)o the contrary, the statement of the gang member was provided only after he was assured that he would not be prosecuted for any information that he provided, thus removing any indicia of reliability regarding that information"]; see generally People v Morgan, 76 NY2d 493, 499 [1990] [on statements against interest].) In the averments of the affidavit, however, Moore swears that the defendant had nothing to do with the robbery and the two did not know one another. Based on these averments, and the evidence at trial, the court finds that defendant has made a prima facie showing, that is, a sufficient showing, of possible merit to warrant a fuller exploration by the court. (See People v Woods, 120 AD3d 595 [2d Dept 2014]; CPL 440.30 [4], [5]; see People v Hughes, 181 AD2d 912, 913 [2d Dept 1992] [stating, in regard to a motion alleging that exculpatory information was not turned over, the fact that the defendant would have a slight or remote chance of ultimately succeeding in meeting his burden of proof would not, by itself, furnish a basis to deny the motion without a hearing under CPL 440.30].) The evidence in support here, i.e. Moore's affidavit, need not be absolutely and undeniably conclusive of defendant's innocence; it need only raise the possibility of merit to that claim. An evidentiary hearing to take live testimony of Moore will allow the court to make credibility determinations regarding his assertions and determine the motion.

B. Defendant's Newly Discovered Evidence Claims

The court next considers the portion of the motion based on newly discovered evidence. A defendant moving to vacate a judgment of conviction under CPL 440.10 (1) (g) has the burden of proving every essential fact by a preponderance of the evidence. (People v Hamilton, 115 AD3d 12, 18 [2014].) The power to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be{**77 Misc 3d at 454} exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court. (People v Salemi, 309 NY 208, 215 [1955].) This discretion at times has been described as "unlimited." (People v Baxley, 84 NY2d 208, 212 [1994]; People v Crimmins, 38 NY2d 407, 415 [1975].)

CPL 440.10 (1) (g) provides that a motion for a new trial may be based upon "evidence [that] 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." This provision requires that a motion based on this ground be made with due diligence after the discovery of such alleged new evidence. (CPL 440.10 [1] [g].) Finally, the provision requires that the new evidence be of such a character that it probably would change the result if a [*7]new trial were granted. (CPL 440.10 [1] [g].) Case law instructs us that the "probably change the result [o]f a new trial" requirement includes consideration of whether the evidence is material, not cumulative, and not merely impeaching or contradictory to former evidence. (People v Hargrove, 162 AD3d 25, 55, 58-59 [2d Dept 2018], quoting People v Malik, 81 AD3d 981, 981-982 [2011] [internal quotation marks omitted].) Evidence is material if it is probative of a fact in issue (Jerome Prince, Richardson on Evidence § 4-102 [Farrell 11th ed 1995]); here, whether defendant and Moore acted in concert with regard to the events at issue is material. The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial. (People v Cain, 96 AD3d 1072, 1073 [2d Dept 2012].)

Consequently, for the foregoing reasons, the court will hold an evidentiary hearing to hear and consider the testimony of Moore, as defense counsel proposes, subject, of course, to cross-examination. The court reserves decision regarding all other aspects of the motion until after a hearing is held.