New Rule By Court of Appeals: The NY Court of Appeals Can Review Summary Denial of 440 Motions For Abuse Of Discretion
24 N.Y.3d 623
New York Court of Appeals
Decided on December 16, 2014
Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
The New York Court of Appeals: New Rule On 440 Motions – The Court Of Appeals Can Review The Appellate Division For Abuse Of Discretion On Summary Denial Of 440 Motions.
Issue: Whether the Court of Appeals is empowered as a matter of law to conduct a review a decision of the Appellate Division under Criminal Procedure Law 440.10(1)(g), motion for an evidentiary hearing based upon newly discovery DNA evidence, for an abuse of discretion.
Summary: In 1981, Defendant was convicted after a jury trial, in the Supreme Court, New York County, of murder of one person and rape of another person. In 2008, defendant moved under CPL 440.30(1-a)(a)(1) for post-conviction forensic DNA testing of any existing physical evidence, which was granted. In 2010, defendant moved under CPL 440.10 for an order vacating his judgment of conviction and directing a new trial based upon the newly discovered DNA test results. The Supreme Court, New York County, denied the motion. Defendant appealed. The Appellate Division, First Department summarily denied defendants motion and affirmed his judgment of conviction holding that newly discovered DNA evidence did not warrant a new trial. Defendant appealed. The Court of Appeals granted leave to appeal, reversed, and remitted holding that defendant was entitled to an evidentiary hearing on his motion to vacate based upon newly discovered evidence. The Court of Appeals reversed its holding in People v. Crimmins, 38 N.Y.2d 407. The new rule is that the Court of Appeals may review the Appellate Division for abuse of discretion where there is a summary denial of a 440 motion.
Holding: The Court of Appeals held that it had power to review for abuse of discretion a summary denial of a defendants CPL 440.10(1)(g) motion for an evidentiary hearing based upon newly discovery DNA evidence, reversed, and remitted for an evidentiary hearing.
Facts: In 1981, a jury convicted defendant of rape in the first degree (Penal Law 130.35), murder in the second degree (Penal Law 125.25), and attempted robbery in the first degree (Penal Law 110.00, 160.15), arising from incidents that occurred in an apartment building on June 2, 1980. Defendant pursued a mistaken identity defense.
At trial, the only witness who was able to identify defendant as the perpetrator of the crimes was the rape victim. She testified that she and the perpetrator met and entered an apartment building to engage in sexual activity. When she had second thoughts, the perpetrator put a knife to her throat and raped her. Afterward, she followed the perpetrator down the stairs and observed him, with knife in hand, tussling with another man he encountered on the stairway. The perpetrator stabbed the man, searched his pockets, and left the building. When the police arrived on the scene, the woman described the perpetrator as wearing a black hat with netting, and having a chipped tooth and a gap between his teeth. Officers recovered a blood-covered hat?identified at trial as a blue baseball cap by one of the officers.
Four months later, the woman, an admitted heroin user with a $50 a day habit, went to the police station and picked defendant out of a lineup. She testified at trial that she had taken heroin on the morning of the lineup. Defendant was thereafter arrested and, after a jury trial, found guilty and sentenced to an indeterminate term of 18 years to life on the murder count, and concurrent indeterminate terms of 3 to 9 years and 1 to 4 years on the rape and attempted robbery counts, respectively.
In October 2008, defendant moved pursuant to CPL 440.30(1-a) for an order for DNA testing of any physical evidence that had been secured in connection with his 1981 trial, including, among other things, the rape kit, baseball cap, and hairs recovered from the cap. The People produced 18 hairs from the cap but was unable to produce the remaining evidence because it had been destroyed. Thereafter, the People and defense counsel agreed to send the hair samples to Mitotyping Technologies, LLC, a laboratory specializing in mtDNA analysis, at defendants expense.
The mtDNA profiles on 3 of the 18 hair samples were compared to the profile of defendant to determine if he could be excluded as a contributor to those hair samples. According to Mitotyping, that testing resulted in a consensus profile that was very different from defendants and excluded him as the contributor of those hairs.
With the Mitotyping results in hand, defendant moved to vacate his conviction and for a new trial pursuant to CPL 440.10(1)(g) on the ground that the mtDNA results constituted newly discovered evidence, or, in the alternative, for an evidentiary hearing pursuant to CPL 440.30(5). Defendant supported his motion with the trial transcript and an affidavit from Mitotypings president and laboratory director, Terry Melton, Ph.D., who averred that Mitotyping conducted the testing under her supervision and prepared a report based on those findings, which was attached to the affidavit along with her curriculum vitae. The People conceded that the mtDNA testing constituted newly discovered evidence, but argued that the results did not require a hearing supported only by an attorney affirmation and hearsay evidence.
Shortly after defendant filed his CPL 440.10 motion, the Office of the Chief Medical Examiner conducted an analysis of seven fingernail scrapings that had been recovered from the murder victim. DNA had been found on five of the seven scrapings. Only one of the scrapings proved capable of DNA analysis, and that scraping excluded defendant as a contributor.
Supreme Court summarily relied upon the Peoples hearsay evidence, denied defendants motion on the papers, and stated that the absence of defendants DNA relative to the few samples that were tested did not exclude defendant as the perpetrator.
On appeal, the Appellate Division, First Department affirmed in a 3-2 decision holding that defendant failed to establish a legal basis for ordering a new trial and was not prejudiced by the absence of a factual hearing. Further, the newly discovered evidence would not have resulted in a verdict more favorable to defendant because of the strength of the sole eyewitness testimony at trial.
The Court of Appeals granted leave to appeal, reversed, and remitted holding that defendant was entitled to an evidentiary hearing on his motion to vacate based upon newly discovered evidence.
Legal Analysis: The Court of Appeals first asked the question: whether the court was empowered to conduct a review of the lower courts summary denial of a defendants CPL 440.10(1)(g) motion without running afoul of the jurisdictional limitations set forth in N.Y. Constitution, article VI, 3(a)? The majority court responded with a resounding yes because a review for abuse of discretion involves a question of law: the playground of the Court of Appeals.
Pursuant to CPL 440.10(1)(g), a defendant may make a post-judgment application to vacate his or her conviction based on newly discovered evidence of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant. If the record demonstrates that there is an issue of fact, then CPL 440.30(5) requires the court to conduct a hearing and make findings of fact essential to the determination [of the motion]. Applying this standard, the bench over-ruled People v. Crimmins 38 N.Y.2d 407 concluding that the Appellate Division, First Department abused its discretion as a matter of law by summarily denying defendants motion without a hearing.
Here, there was no dispute that the mtDNA testing of the hairs and the DNA testing of the fingernail scraping constituted newly discovered evidence. Nor was it claimed that defendant failed to exercise due diligence in bringing the motion. Rather, the People alleged that the newly discovered evidence did not create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant (CPL 440.10[g]). However, the Court of Appeals has long acknowledged that forensic DNA testing is an accurate and reliable means of connecting individuals to crimes and exonerating prisoners who were wrongfully convicted. And, the only evidence supporting defendants conviction was the testimony of a heroin addict who admitted to being under the influence of drugs the morning she identified defendant at a lineup and during trial. As such, defendant should have been afforded a hearing so he could have at the very least an opportunity of proving by a preponderance of the evidence every fact essential to support [his] motion (CPL 440.30), including his assertion that had such DNA evidence been presented at trial, he would have received a more favorable verdict.
Accordingly, the order of the Appellate Division was reversed and the case remitted to Supreme Court for further proceedings in accordance with the opinion.