Supreme Court, Bronx County, January 12, 2024

Michael Croce and Alan Gardner for defendant.

Darcel D. Clark, District Attorney (Antonio Castro and Lisa Ortolano of counsel), for the People.

Defendant Antonio Robinson, found guilty of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]) for the shooting death of his wife, Sharon Epps, and stepson, Tyrell Bell, moved for an order setting aside his guilty verdict, pursuant to Criminal Procedure Law § 330.30 (1) based upon several purported errors by the court.^[FN1]

The People opposed the motion.

For the reasons set forth on the record immediately before defendant's sentencing, this court denied defendant's CPL 330.30 (1) motion. This decision further amplifies the court's reasoning in support of that order.

Defendant contends that this court's errors in essentially six areas require it to set aside defendant's conviction as a matter of law. Specifically, defendant contends that the court erred by (1) precluding alleged "evidence" of third-party culpability in its decision and order, dated August 31, 2022 (the third-party culpability D&O) (defendant's affirmation ¶¶ 5 [a]; 6-15); (2) {**82 Misc 3d at 1011}"thwart[ing]" defense counsel's efforts to "attack the law enforcement investigations of this case" by preventing defense counsel from presenting what defense colloquially refers to as a "SODDI" defense, i.e., "some other dude did it" defense (defendant's affirmation ¶¶ 5 [b], [c]; 16-20); (3) [*2]making a plethora of erroneous evidentiary rulings (defendant's affirmation ¶¶ 5 [d]-[i]; 23-35);^[FN2] (4) denying defense counsel's application to include "the moral certainty language that is woven into New York State criminal jurisprudence" in its charge to the jury (defendant's affirmation ¶¶ 5 [j]; 37); (5) denying defense counsel's request for missing witness charges to the jury (defendant's affirmation ¶ 5 [i]); and (6) denying defendant's motion for a mistrial premised on the prosecution's improper cross-examination of the defense expert in cell site analysis (defendant's affirmation ¶ 5 [h]).

Criminal Procedure Law § 330.30 (1) authorizes courts to set aside a conviction based on grounds that would, on appeal from a prospective judgment of conviction, "require a reversal or modification of the judgment as a matter of law by an appellate court" (emphasis added).

Additionally, unless the proffered ground for reversal affects a defendant's fundamental rights, the ground must also have been "preserved for appellate review" before the court can consider it as "support for reversal as a matter of law" (People v Jones, 188 AD2d 331, 335 [1st Dept 1992]; see CPL 470.15 [1]; see also People v Albert, 85 NY2d 851, 853 [1995] ["Finally, because none of the arguments raised on defendant's CPL 330.30 (1) motion were raised prior to verdict, those arguments did not furnish a proper predicate for setting aside the verdict"]).

The Third-Party Culpability Ruling

For the reasons set forth in its third-party culpability D&O, this court precluded that defense and will not revisit that reasoning here.

Challenges to the Adequacy of the Law Enforcement Investigations (the SODDI Defense)

Defendant also contends that this court erred when it allegedly kept defense from establishing a SODDI defense in two{**82 Misc 3d at 1012} ways: (1) by prohibiting cross-examination of the prosecution's witnesses concerning the inadequacy of the initial police investigation and (2) when it precluded defense from calling its own investigators, its own lawyer, and the Bronx District Attorney's (the BXDA) detective-investigators in its effort to attack the adequacy of the BXDA's reinvestigation (defendant's affirmation ¶ 5 [b]; tr at 1149:25-1151:3; July 29, 2022 tr of third-party-culpability offer of proof at 12:17-15:7).^[FN3]

The distinction between a defense strategy that relies on establishing the possibility of a third party's culpability versus one that relies on challenging a police investigation to create reasonable doubt has been recognized in several cases, including Alvarez v Ercole (763 F3d 223 [2d Cir 2014]), the central case upon which defense relies (see also 2 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 10:52 n 1 [Jan. 2023 update] [cases cited therein]).

In a defense asserting third-party culpability, the defendant attempts to prove that a third party committed the offense. "When the defense presents this version of the defense, the defense [*3]not only encounters . . . relevance hurdles," it also "may face independent evidentiary objections to the individual items of evidence that the defense proffers to establish the third party's identity as the perpetrator" (2 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 10:52 ¶ 1 [Jan. 2023 update]). This court's third-party culpability D&O precluded the defense's third-party-culpability proffer precisely on these grounds, i.e., irrelevance, speculation, conjecture, double hearsay, and illogic.

In a defense attacking the police investigation that is described by at least one scholar as the "Modern Version of the SODDI Defense," the defense argues not that reasonable doubt exists because admissible evidence shows that a third party perpetrated the crime but rather reasonable doubt exists "because the police neglected to investigate the potential guilt of a person of interest" (2 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 10:52 ¶ 4 [Jan. 2023 update]).

It is this latter "modern" version that defense contends the court "thwarted." However, this contention is entirely belied by the trial record. Examples of defense efforts to establish the inadequacy{**82 Misc 3d at 1013} of the initial police investigation during cross-examination abound. For instance, the defense established the following on cross-examination: the police failed to test for DNA or collect fingerprints from two drinking glasses found in one victim's bedroom (tr 296:13-297:9); the lead detective admitted that he did not remember whether the padlocks on a gated window were locked when he arrived on the scene (tr 298:15-300:2) nor whether the back bedroom windows were gated at all (tr 300:19-301:9); though Sharon Epps suffered multiple gunshot wounds, the lead detective admitted that he failed to search for multiple spent shell casings, stopping after he had recovered only one (tr 361:22-362:12; 366:1-17); the lead detective failed to note in any of his paperwork that Nikala Epps, defendant's daughter, notified him about a large sum of money she found and recovered from the apartment after the initial police investigation (tr 367:12-23); the police failed to collect a full 24 hours of video surveillance from the murder location (tr 374:22-375:15); though the lead detective possessed both murder victims' cellular phones, he waited nearly a year before checking the contents thereof to ascertain whether the victims had spoken to anyone before they were murdered (tr 425:10-426:5); and the police failed to search for any evidence of the murder weapon along the route defendant claimed to have taken after leaving the murder scene (tr 450:5-8).

In addition to falsely arguing that defendant was precluded from attacking the NYPD's initial investigation, defendant also argues that he should have been permitted to attack the BXDA's reinvestigation. Relying on Alvarez v Ercole and Chambers v Mississippi (410 US 284 [1973]), defendant argues that the court's preclusion of this line of attack violated defendant's fundamental rights to a fair trial and to present a complete defense (defendant's affirmation ¶¶ 7-8). Neither case supports such a conclusion.

In Alvarez v Ercole, the United States Court of Appeals for the Second Circuit found hearsay rulings by a Bronx trial court erroneous and violative of defendant's rights under the Sixth Amendment's Confrontation Clause—a clause obviously not implicated here given the transcript citations above. The Bronx trial court's evidentiary rulings in Alvarez v Ercole essentially foreclosed cross-examination of the lead detective concerning unpursued leads provided by a witness (the witness), who could not later be found. The trial court also erroneously precluded the introduction into evidence of the lead detective's investigative{**82 Misc 3d at 1014} report (the DD5) documenting these leads, the witness's name, and contact information.

The Bronx trial court had reasoned that the relevance of the contents of the DD5 [*4]depended on the truth of the leads supplied by the witness and therefore constituted inadmissible hearsay because the witness was unavailable to testify. In other words, the trial court wrongly subjected the defense's line of cross-examination to third-party-culpability analysis. Second, though the trial court properly cited the controlling case on third-party culpability evidence, People v Primo (96 NY2d 351 [2001]), it erroneously stated the Primo standard and applied the "clear link" third-party culpability standard that had, in fact, been abrogated by the Primo case itself.

The Second Circuit noted that defense's cross-examination sought not to demonstrate the truth of the investigative report's contents but to demonstrate that the NYPD had failed to take obvious, preliminary steps to investigate the leads that were generated by the witness's interview as memorialized in the DD5. The defense strategy, referenced during the opening statement and emphasized in the summation, was not to establish the truth of the witness's contention that someone else had committed the crime (which, again, would have been hearsay) but offered instead for the nonhearsay purpose of showing that the NYPD's incomplete investigation showed that the NYPD had prematurely concluded that the defendant was the guilty party, and in that way raised a reasonable doubt that the defendant was in fact responsible. Accordingly, subjecting the defense strategy to third-party-culpability analysis—which requires admissible foundational evidence that some third party committed the charged crime—was erroneous because the defense theory turned instead on establishing the lead detective's state of mind. Further, because this ruling left defendant "without any means of supporting his defense theory" (Alvarez v Ercole, 763 F3d at 231), it was not harmless error.

In contrast, here, counsel was permitted to cross-examine the lead detective concerning the adequacy, or alleged inadequacy as it were, of the police investigation (see tr citations, supra at 1012-1013). Thus, this court did not run afoul of precedent given that defendant was permitted to challenge the police investigation and, unlike the factual circumstances in Alvarez v Ercole, no promising alternate suspect existed during the initial police investigation (nor reinvestigation for that matter).{**82 Misc 3d at 1015}

What defense was not permitted to do during the trial was elicit evidence of the BXDA's reinvestigation of defense counsel's third-party-culpability proffer, which reinvestigation was conducted years after the initial police investigation. The BXDA's office had reinvestigated the case but presumably decided that defendant's proffer failed to support dismissal (hence, the trial was had). Because the BXDA's state of mind is irrelevant and because defendant in fact pursued and was able to support his attack on the NYPD investigation, Alvarez v Ercole is distinguishable.

Chambers v Mississippi is likewise distinguishable. That case holds unconstitutional the strict application of evidentiary rules where such an application unconstitutionally circumscribes defendant's right to present a complete defense.

Here, unlike in Chambers v Mississippi, defendant was permitted at trial to affirmatively introduce evidence suggesting that the police may have overlooked the possibility that someone else may have committed the crimes. For example, defense was permitted to call Nikala Epps, who—though lacking personal knowledge of the murders—was permitted to testify that she found a vast amount of money in the apartment as well as several shell casings that the police had overlooked and failed to recover and voucher from the crime scene (tr 1109:3-6; 1207:4-22). Epps also testified about the existence of fire escapes just outside of both her bedroom and the living room windows, suggesting another possible means of entry into the apartment (tr 1194-1195). The defense was also permitted to call an investigator to testify about the condition of the windows by these fire escapes days after the crime, i.e., that they were [*5]unlocked and some were even open, despite the absence of any relevant testimony concerning the condition of the windows on the date in question (tr 1406:1-12). Defense was also permitted to call Detective Robert Rodriguez of the NYPD SCUBA Team to establish that although the police had and have the capability to search for ballistics evidence or a murder weapon in the river that defendant had claimed to have walked by after the murders, they failed to do so (tr 450:10-17; 1229:18-1232:2; 1235:22-1236:5). Finally, defense counsel was permitted to argue in summation that based on the foregoing testimony, police officers involved in the initial investigation "rushed to judgment" in deciding the defendant's guilt "as soon as they saw him in that building," never stopping to consider "the possibility that someone else could be to blame" (tr 1644:25-1645:3).{**82 Misc 3d at 1016}

The Evidentiary Rulings

Defense counsel's arguments on this score are simply mischaracterizations of the record (see also third-party culpability D&O n 2).

First, the defense claims to have wanted to call Raymond Perez at trial to testify about seeing people entering defendant's apartment through the fire escape on dates other than the date of the murders and hearing rumors concerning the real reason for Bell's job termination (defendant's affirmation ¶ 17). However (and setting aside relevance issues), the defense never offered Perez as a witness at trial. Indeed, Perez is not on any defense witness list, nor defendant's certificate of compliance, nor referred to at any point in the trial record.

Second, contrary to defendant's arguments (defendant's affirmation ¶ 33) this court never denied a defense application to introduce ESPN records. Instead, the record demonstrates that because defendant sought to challenge the timing of the shooting at 3 p.m., on October 3, 2022, defendant provided to the court for its signature a proposed order directing a cable network, ESPN, to provide defense counsel certified copies of records concerning the college football game between University of Wisconsin and University of Michigan (the order for ESPN records), the broadcast of which was possibly used by an earwitness to gauge the time of the gunshots. The court expeditiously signed and returned the order for ESPN records to defendant and defendant acknowledged receiving the records (defendant's affirmation ¶ 33). But at trial defendant failed to offer—and the court did not preclude—evidence obtained pursuant to that order.

Of course, the court considers these items—the fictional preclusion of Perez's testimony and the fictional proffer of ESPN records—nonexistent in the trial record. As such, they are an insufficient predicate for a CPL 330.30 motion (see Jones, 188 AD2d at 335).^[FN4]

Concerning the remaining evidentiary objections, rulings on expert witnesses, the missing witness charges, and the final{**82 Misc 3d at 1017} jury instructions, these issues were adequately addressed at trial. Defendant's arguments here are based on distortions of fact that even a cursory review of [*6]the trial record demonstrates and are patently meritless. Accordingly, they are not addressed here.

Finally, the court's denial of defendant's motion for a mistrial based on any prejudice to defendant which may have arisen due to the prosecutor's brief mention of Sharon Epps's voicemail message was proper as any possible prejudice to defendant was alleviated when this court immediately sustained defendant's objection and took prompt curative action by striking the question and answer (tr 1546:11-12; see People v Santiago, 52 NY2d 865, 866 [1981] [affirming the denial of Santiago's motion for a mistrial in similar circumstances]). Accordingly, defendant's motion for an order setting aside the jury's verdict is denied on this ground as well.

In sum, defendant's motion pursuant to CPL 330.30 is denied in its entirety.