Judge Lawliss's September 30, 2003 Decision to Deny a New Trial
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At a Special Term of the County Court of the State of New York, held in and for the County of Clinton at Plattsburgh, New York on April 10, April 11 and May 16, 2003.
STATE OF NEW YORK COUNTY COURT COUNTY OF CLINTON THE PEOPLE OF THE STATE OF NEW YORK, vs. DAVID K.WONG Defendant.
DECISION & ORDER
Indictment No. 6-103-86
APPEARANCES: Richard E. Cantwell, Plattsburgh, Clinton County District Attorney Brooklyn Law School, The Second Look Program Clinic, Brooklyn (William E. Hellerstein and Daniel Medwed of counsel) Defendant's Counsel Center for Constitutional Rights, New York (Jaykumar Menon of counsel) Defendant's Counsel
David K. Wong, Defendant
By Notice of Motion dated August 21, 2002, the defendant, David K. Wong, moved this Court for an order pursuant to New York State Criminal Procedure Law ¤ 440.10(l)(f)-(h) for an Order vacating the judgment imposed by this Court on August 24, 1987 convicting the defendant of the crime of murder in the second degree and sentencing him to a term of 25 years to life imprisonment. In support of the defendant's motion, the defendant filed an affirmation of his attorney, William E. Hellerstein, affirmed on August 21, 2002; the affidavit of Peter Dellfava notarized on January 5, 2001; the affidavit of Maximo Vidal notarized on April 27, 2001; the affidavit of Diogenes Filpo notarized on July 8, 2002; the affidavit of Samuel Cabassa notarized on May 7, 2002; the affidavit of Anthony Scales notarized on January 24, 2002; the affidavit of Shakim J. Allah dated May 3, 2002; the affidavit of Santo Valdez Cuello notarized on July 25, 2002; the affidavit of Teofilo Fernandez notarized on August 21, 2002; the affidavit of [the widow of Tyrone Julius], and the affidavit of Joseph Barry notarized on August 13, 2002.
After reviewing the transcript of the original trial, the prior motions brought pursuant to CPL Article 440 and all the papers submitted in connection with the instant motion, the Court conducted a hearing pursuant to Article 440 on April 10, April 11 and May 16, 2003. The following constitutes the Decision and Order of the Court based upon the motion papers submitted and the evidence offered at the evidentiary hearing. Mr. Wong moves for relief under three subsections of CPL ¤ 440,10. The Court will address each of the relevant subsections separately.
NEWLY DISCOVERED EVIDENCE
Mr. Wong's primary contention is that his conviction should be vacated pursuant to CPL ¤ 440.10(g), which states as follows:
New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.
For newly discovered evidence to be sufficient to warrant vacating a judgment, the proffered evidence must fulfill all the following requirements: (1) it must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not have been discovered before the trial by the exercise of due diligence, (4) it must be material to the issue, (5) it must not be cumulative, and (6) it must not be merely impeaching or contradictory to the former evidence, (See People v Richards, 266 AD2d 714,698 NYS2d 785 (3d Dep't l999) (leave to appeal denied), 94 NY2d 924,708 NYS2d 364, 729 NE2d 1163 and People v Reyes, 255 AD2d 261,680 NYS2d 493 [1st Dep't 1988](leave to appeal denied), 92 NY2d 1053,685 NYS2d 431,708 NE2d 188).
For the reasons stated below, even assuming without finding that all the evidence presented by Mr. Wong satisfies the other requirements of the statute, the Court concludes that it is not of such a character to create a probability that had such evidence been received at trial the verdict would have been more favorable for Mr. Wong. Accordingly, the Court denies Mr. Wong's request for relief under this subsection.
Obviously, the first step in the process of determining whether the current evidence is of such a character to create a probability that had the evidence been received at trial the verdict would have been more favorable to Mr. Wong, is to determine what evidence was previously presented. The following is a summary of past evidence presented.
The case of the People of the State of New York v. David K. Wong was tried in Clinton County, New York in July of 1987. The People called fifteen witnesses to testify: Thomas R. Hickey, David Donah, Bruce Jarvis, Richard LaPierre, Lionel J. Gagnon. Henry Venn, Theodore Michael Rascoe. Peter Dellfava, Jay Belkin, Joseph G- Wood. Gerald A. Renadette, Massoud Azar, MD, Jerome Davis, MD, and Barbara Tutschka, MD. The defense called eight witnesses: John Carey, Leo Miller, David R. Goodrich, Noah Anthony Lasore, Reginald Powell, Tse Kin Cheung, James Irby, and David K. Wong, On rebuttal, the People called four witnesses: Philip E. Arsenault, Richard Sipek, Thomas Hickey and Richard LaPierre.
The summation of testimony that follows is brief and in no way reflects each individual's testimony in its entirely.
Three of the individuals called to testify by the People were employed with New York Slate Police, Criminal Investigation Unit, at the time of the March 12, 1986 incident: Thomas R. Hickey, Lionel J. Gagnon and David Donah. Mr. Hickey's participated in the investigation, taking photographs at the Clinton Correctional Facility and taking samples at the location of the incident. Mr. Hickey and Mr. Gagnon both testified regarding the chain of custody of items collected as part of the investigation. Mr. Hickey testified that he transported samples and clothing to the State Police Barracks in Pittsburgh and transported samples and clothing to the State Police lab in Albany. Mr. Gagnon testified that he transported items related to the investigation from Albany at the New York Stale Police Laboratory to Ray Brook, New York at Troop B Headquarters. Mr. Donah was present at the Champlain Valley Physicians Hospital (CVPH) in Pittsburgh when Tyrone Julius (the victim of the incident), was pronounced dead and Mr. Donah also attended and took photographs of the autopsy.
The People called a number of correction officers who were employed at and present at the Clinton Correctional Facility at the time of the March 12, 1986 incident. Other than Richard LaPierre, none of the correction officers testified that they witnessed the incident. Each correction officer testified as to their involvement in the immediate aftermath of the incident, their involvement in the investigation, or both. Bruce Jarvis testified that his involvement in the investigation of the incident involved taking photographs of and measurements at the incident site, taking photographs of Mr. Julius at CVPH, retrieving clothing from CVPH, and participating in the search of the yard for contraband. Joseph Wood, a fellow correction officer, testified that Mr. Jarvis came to his office and brought with him items of clothing to keep while Mr. Jarvis went back to the yard to assist in the investigation. Mr. Wood testified that upon Mr. Jarvis' return. Mr. Wood gave the items back to Mr. Jarvis. While unrelated to his actual involvement in the matter, during his testimony Mr. Wood was asked if he knew how many Chinese inmates were incarcerated at the Clinton Correctional Facility on March 12, 1987 and Mr. Wood testified that there were two; Mr. Wong and Mr. Cheung.
Two correction officers, Gerald A. Renadeite and Theodore Michael Rascoe testified about their respective involvement in the aftermath of the incident. Both Mr. Renadette and Mr. Rascoe testified that they responded to the incident scene and testified as 10 what they saw at the incident scene. Neither witnessed the actual incident. Henry Venne testified that while he did not witness the incident he did have direct involvement with Mr. Wong following the incident. Mr. Venne testified that on the dale in question he was advised by other officers that there was trouble and that he ran to the yard. Mr. Venne was ordered by radio to stop an individual, later identified as Mr. Wong. Mr. Venne testified that he apprehended Mr. Wong.
As indicated previously, Richard LaPierre was the only correction officer to testify that he witnessed the incident. Mr. LaPierre testified that on March 12, 1986 he arrived at the tower he was assigned to at approximately 2:45 p.m. Mr. LaPierre estimated that there were approximately 600-700 inmates in the yard. Mr. LaPierre testified that at approximately 4:00 p.m., the time the yard routinely closes, he was outside the tower on a catwalk and he noticed a small group of six to seven inmates in a tight huddle, Mr. Lapierre testified that he next noticed an inmate wearing a green hooded sweatshirt (later identified as Tyrone Julius) come down a hill and walk past the group at which time Mr. Lapierre saw an inmate from the group (later identified as David Wong) leave, walk around the back of the group, come up quickly behind Mr. Julius, and strike Mr. Julius in the lower neck upper shoulder.[FN 1] Mr. Lapierre testified he was holding his binoculars and his radio at the time the incident occurred and, upon seeing what he had described as the "shot" to the lower neck upper shoulder, he brought the binoculars to his eyes. It was Mr. LaPierre's testimony that both Mr. Julius and Mr. Wong were in his field of view, that Mr. Julius (who was laying on the ground) still had his hands in his pocket and that Mr. Wong was just walking away as if nothing had happened.
[FN 1 = Mr. LaPierre when describing the incident that took place does not use the names of Mr. Julius and Mr. Wong, but rather, referred to them as inmate; for the sake of clarity the Court uses the names herein.]
Mr. Lapierre testified that he kept his eye on Mr. Wong. Mr. LaPierre testified that Mr. Wong walked through lines of inmates that had been singly formed; stopped directly in front of a fence; shook hands with other inmates; looked over in the direction of where Mr. Julius was lying in the snow; laughed; patted another inmate on the back; gave the other inmate the high sign; shook the other inmates hand; ran to the edge of the crowd; watched as Mr. Julius was put on a stretcher; and, ran back to the area near the fence. Mr. LaPierre testified that he was approximately 100 to 120 yards away from the incident when it occurred. Mr. LaPierre testified that he contacted the tower and informed them of where Mr. Wong was standing. According to Mr. LaPierre's testimony he identified Mr. Wong to a colleague and Mr. Wong was apprehended.
In describing what Mr. Wong was wearing, Mr. LaPierre testified he had on a green jacket, zipper open, and a green Stale toque pulled down straight down above the eyes so you couldn't see any hair color or anything. Mr. LaPierre did testify that his initial reaction to the incident, without binoculars, was that the inmate who struck the other was white and that only after using the binoculars and focusing on Mr. Wong was he able to tell the inmate was "oriental". Mr. LaPierre also testified that after Mr. Wong was apprehended he, Mr. LaPierre, watched an inmate by the name of Mr. Cheung. According to Mr. LaPierre, while he was unable to identify the names of the inmates at the time, he was able to tell Mr. Wong and Mr. Cheung apart and described some differences. Mr. LaPierre did acknowledge during cross examination that at one point he stated in his report or at grand jury that he "believed" the inmate was "oriental", referring to Mr. Wong, and also that he could not tell if Mr. Wong had gloves on without the binoculars; but that it was only a second or two from the time of the attack to the time he was looking through his binoculars.
The only inmate the People called to testify was Peter Dellfava. Mr. Dellfava was an inmate at the Clinton Correctional Facility at the time of the March 12, 1986 incident. Mr. Dellfava testified that he witnessed the incident. Mr. Dellfava testified that he was approximately 15 feet from the incident when he saw one inmate go behind another inmate and appear to hit the other inmate. Mr. Dellfava testified feat Mr. Wong looked right at him (Mr. Dellfava), that Mr. Wong "stepped off" and that Mr. Wong then walked away. In terms of being able to identify Mr. Wong, Mr. Dellfava testified that he had seen Mr. Wong on numerous occasions (two, three, five sometimes seven days a week) at the facility and that he and Mr. Wong were locked in the same block, although in a different company, so that he knew Mr. Wong. Mr. Dellfava testified that he gave an oral statement regarding the incident to a Sergeant Nelson and then to the State Police. Mr. Dellfava testified that in his sworn statement to the State Police he said he saw an "Oriental" inmate strike the other inmate.
Mr. Dellfava testified about his own criminal history. He also indicated that by the time he testified at the trial on July 7, 1987 he was out on parole. Mr. Dellfava testified that after the incident and prior to his Parole he was transferred to a number of facilities, all of which were closer to his family than Clinton Correctional Facility. Mr. Dellfava further testified that when he went before the parole board in March of 1987 it was his first time before the board since his most recent conviction (which stemmed from his escaping from a prior place of incarceration, Camp Gabriel) and that he was paroled despite it being his first review by the board and despite his previous escape. Mr. Dellfava testified that District Attorney Ryan, who was prosecuting Mr. Wong's case, had written a letter to the parole board informing them of Mr. Dellfava's cooperation. Mr. Dellfava also acknowledged that he was not under subpoena, that he came to testify voluntarily and that his room, meals, travel and missed income from work were all being paid by the District Attorney's office during the trial.
Upon being cross-examined by Mr. Wong's defense counsel, Mr. Dellfava did admit that he did not know Mr. Wong's name until it was told to him by other inmates and law enforcement and that Mr. Wong was in both the same block and company as Mr. Dellfava (he had previously said Mr. Wong was in a different company).
The first medical professional called by the People was Jay Belkin. Mr. Belkin was a physician's assistant at the Clinton Correctional Facility in the hospital clinic area at the time of the March 12, 1986 incident Mr. Belkin testified that he treated Mr. Julius at the facility and that he ordered Mr. Julius transferred to CVPH. The People called three additional medical professionals all of whom where medical doctors; Dr. Massoud Azar, Dr. Jerome Davis, and Dr. Barbara Tutschka. The doctors established a diagnosis of brain or cerebral death and a cause of death of injury to the medulla, that portion of the brain closest to me wound sustained by Mr. Julius.
The People rested and the defense began their case on July 8, 1987. The defense began by calling three correction officers: John Carey, Leo Miller and David R. Goodrich. Mr. Carey was the one connection officer who testified about communications he had with Mr. LaPierre immediately following the incident. Mr. Carey testified that he was in constant radio communication with Mr. LaPierre and that Mr. LaPierre told him that he had seen an inmate struck and that he had in his view a second inmate who he believed struck the first inmate. Mr. Carey read from his own report of the incident during his testimony and stated that his Report indicated that Mr. LaPierre planned to keep two suspects in view while the yard was closed and that both were stopped at the yard door and taken from the scene, Mr. Carey testified further that both Mr. Wong and Mr. Cheung were apprehended.
Leo Miller testified as to his observations of the incident scene and of Mr. Julius immediately following the incident. Mr. Miller also testified about how many inmates he estimated were near the incident scene and what the inmates in the yard were wearing. David R. Goodrich also testified about his observations and involvement at me incident scene. Mr. Goodrich also testified about his involvement with Mr. Cheung following the incident.
The defense called four inmates, all of whom were housed at the Clinton Correctional Facility at the time of the incident, to testify in addition to Mr. Wong; Noah Anthony Lasore, Reginald Powell, Tse Kin Cheung, and James Irby. Each inmate testified, among other things, about their respective involvement with Mr. Wong on the date and time in question and also what if anything they saw related to the incident. The first inmate to testify for the defense was Noah Anthony Lasore. Mr. Usore testified that he was with Mr. Wong and Mr. Cheung for a period of time preceding the incident. Concerning the incident itself, Mr. Lasore testified that approximately four or five minutes after separating from Mr. Wong he noticed that people were looking at something on the ground. Reginald Powell testified that he was talking with Mr. Wong and Mr. Cheung when the yard was closing on the date in question. With regard to the incident, Mr. Powell testified that he first became aware of the incident when he noticed a big gathering of inmates and thereafter noticed someone on the ground. Mr. Powell testified that he did not see Mr. Wong near the crowd.
Tse Kin Cheung testified that he was with Mr. Wong on the date in question, including at the time of the incident. Mr. Cheung testified he first became aware of an incident when he, Mr. Wong and Mr. Powell were in line talking and he noticed a lot of inmates crowding. Mr. Cheung testified that Mr. Wong did go to the area where the inmates were crowding and then came back. Mr. Wong indicated to him that someone had been stabbed. Mr. Cheung testified thereafter about being taken aside, searched, and brought to the facility hospital. After being strip searched Mr. Cheung indicated that he was taken to the tier disciplinary hearing room and told to give a statement which he did. Mr. Cheung testified that offers were made by the investigators in return for his indicating that Mr. Wong committed the stabbing, including offers involving getting him a green card and early parole. Mr. Cheung testified that he was also threatened with a denial of parole and hard jail time if he did not cooperate. Mr. Cheung testified that he and Mr. Wong were the only two Asian inmates at the facility on the date of the incident.
James Irby was the one inmate called by the defense who testified that he actually witnessed the incident. Mr. Irby testified that an individual he saw make a "swinging motion" prior to the victim falling was a black Latino. Mr. Irby testified that the individual was not Mr. Wong.
As their last witness, the defense called the defendant, David K. Wong. Mr. Wong testified that he first became aware that an incident had occurred when he noticed a large crowd in the yard. Mr. Wong testified that when he noticed the crowd he took a few steps in the direction of the crowd and squalled to try to see through the crowd whereupon he noticed a person lying on me ground wearing a hat or a hood. Mr. Wong testified that he ran over to the incident scene because a friend of his had the same kind of hat on that day and that upon realizing it was not his friend, he returned to where he had been standing with Mr. Cheung. Mr. Wong thereafter testified about what happened when he went inside the facility and details about being searched and questioned about the incident. Mr. Wong denied killing Mr. Julius, Mr. Wong also denied knowing Mr. Dellfava.
On rebuttal, the People called Philip E. Arsenault, Richard Sipek, Thomas Hickey and Richard LaPierre.
Philip E. Arsenault and Richard Sipek were both employed with the New York State Police, Bureau of Criminal Investigation, at the time of the March 12, 1986 incident. Both Mr. Arsenault and Mr. Sipek testified that as part of the investigation into the incident they interviewed Mr. Cheung and both contend that the only offer made to Mr. Cheung regarding his cooperation was to transfer him to another facility if he had any information available. Both Mr. Arsenault and Mr. Sipek also testified that they interviewed Mr. Lasore and that Mr. Lasore told them that he had not seen Mr. Cheung and did not talk to Mr. Cheung on March 12, 1986.
The People called Thomas Hickey who had already testified on direct for the People. Mr. Hickey testified that he interviewed Mr. Cheung in April of 1986 and that he, Mr. Hickey, typed a statement and read the statement to Mr. Cheung. Mr. Hickey testified that Mr. Cheung asked that changes be made, that changes were made, but that Mr. Cheung did not sign the statement.
Mr. Hickey also testified about interviewing Mr. Cheung in March of 1986 and indicated that no threats nor promises were made to Mr. Cheung regarding his cooperation.
On rebuttal Richard LaPierre testified about how much time elapsed between Mr. Julius being hit and Mr. Julius' body being removed from the yard and he testified about what, if anything, Mr. Wong was carrying at the time of the incident.
On July 13, 1987 the prosecution and defense gave their closing statements and the jury was charged. After deliberation, the jury found David K. Wong guilty of Murder in the Second Degree.
On August 7, 1987 David K. Wong filed a Notice of Motion with an affidavit in support requesting the verdict be set aside. Mr. Wong alleged that he was denied effective assistance of counsel; that the prosecutor failed to prove him guilty beyond a reasonable doubt; and, that the identification of Mr. Wong as the perpetrator was defective because a suggestive photo array was viewed by the one correction officer who identified him. At Mr. Wong's sentencing on August 24, 1987, the Honorable Charles H. Lewis, County Court Judge, Clinton County, orally denied Mr. Wong's motion in its entirety.
On August 24, 1987, Judge Lewis sentenced Mr. Wong to an indeterminate sentence of twenty-five years to life in prison 10 be served consecutively with any sentence Mr. Wong was serving at the time.
On April 2, 1997 David K. Wong, filed a Notice of Motion and supporting documents requesting, pursuant to Criminal Procedure Law ¤440.10 et. seq., an order vacating the judgement of conviction and dismissing the indictment with prejudice, or, in the alternative, an order setting an evidentiary hearing at me conclusion of which the indictment would be dismissed or a new trial ordered. A supplemental affidavit in support of the motion was filed on April 9, 1997, a motion of an additional claim was filed by Mr. Wong on April 11, 1997, and a second supplemental affidavit in support of the motion was filed oh May 12, 1997. On June 23, 1997 the People filed their opposition to Mr. Wong's motion. On July 11, 1997 Mr. Wong filed a response to the People's opposition.
Mr. Wong's 1997 CPL ¤440.10 et. seq. motion was based upon four grounds: (1) failure to provide the defendant with competent and adequate interpreter services; (2) ineffective assistance of counsel in that counsel failed to object to the failure to provide adequate interpreter services as well as a number of other arguments regarding ineffective assistance of counsel; (3) prosecutorial misconduct and failure to provide Brady material; and, (4) newly discovered evidence.
The alleged newly discovered evidence consisted of the affidavits of six (6) inmates: Gary Ballinger, William F. Bonez, Donald R. Jennosen, Anthony Scales, Willy Vesquez and Maximo Vidal. The affidavits state that the inmate who assaulted Mr. Julius was Hispanic or Puerto Rican and/or that Mr. Wong was not the inmate who assaulted Mr. Julius.
By Decision and Order dated October 2, 1997, the Honorable Patrick R. McGill, County Court Judge, Clinton County, denied Mr. Wong's motion on all grounds. With regard to the alleged newly discovered evidence. Judge McGill found that: Defendant does not establish that this evidence could not have been discovered before trial by the exercise of due diligence. Defendant has also not established that the affidavits, if introduced into evidence at a new trial will probably change the result. Additionally, the evidence is cumulative of evidence introduced at trial. Defendant has also not met the statutory requirement of pursuing a C.P.L. Section 440.l0(1)(g) motion with due diligence after the discovery of such evidence, It has been five (5) years since defendant obtained the last of the six (6) affidavits, nine (9) years since he obtained the first. For the foregoing reasons, the six (6) affidavits do not meet the requisite criteria as "newly discovered."
The Court notes that two affidavits were supplied by individuals for the 1997 motion who also provided affidavits for the instant motion before this Court. Anthony Scales for the 1997 motion provided an affidavit sworn to on February 24, 1988 which stated that he, Anthony Scales, personally witnessed the assault, that Mr. Wong did not commit the offense, and that the inmate who did the stabbing was Puerto Rican.
Maximo Vidal provided an affidavit sworn to on July 1, 1992 which states that he witnessed a Spanish inmate stab a black inmate on March 20(sic), 1986 and that Mr. Wong did not stab the inmate.
On January 20, 1998, Mr. Wong, after having been granted permission by the Appellate Division, Third Department, filed a Notice of Appeal from Judge McGill's order. By Memorandum and Order dated December 10, 1998, the Appellate Division, Third Department affirmed Judge McGill's October 2, 1997 Decision and Order.
David K. Wong, thereafter filed a Notice of Motion dated May 3, 2000 and supporting documents requesting, pursuant to Criminal Procedure Law ¤440.10 et. seq., an order vacating or setting aside his conviction. On July 24, 2000, the People filed an Affirmation in Opposition and Memorandum in opposition to Mr. Wong's motion. On June 4, 2001, Mr. Wong filed a reply to the People's opposition. On July 27, 2001, the People filed a surreply and on August 20, 2001, Mr. Wong filed a response to the surreply.
Mr. Wong in his motion contended that (1) his trial counsel were ineffective in that they failed to investigate information which would have led to the identification of the "true assailants"; (2) his appellate counsel was ineffective in that she failed to raise the trial counsel's errors; (3) that there were Brady or Rosario violations; and (4) that his trial and appellate counsel provided him ineffective assistance of counsel when they failed to request dismissal of the second indictment filed against him. By Decision and Order dated March 4, 2002, the Honorable Patrick R. McGill denied Mr. Wong's CPL ¤440.100 motion, Mr. Wong's appeal of the 2002 order is still pending in the Appellate Division.
Against this background, the Court now considers Mr. Wong's evidence offered in connection with the instant motion. Essentially, the evidence presented can be divided into three categories: (1) Mr. Dellafava having recanted his original trial testimony; (2) Nelson Gutierrez's alleged admissions that he killed Tyrone Julius; and (3) various alleged eyewitness accounts identifying the murderer as Nelson Gutierrez or otherwise exculpating Mr. Wong.
Beginning with Mr. Dellafava's recanted trial testimony, the Court notes that recanting testimony is some of the most unreliable evidence known in law. Indeed, many Courts have found recanting testimony to be so unreliable that an evidentiary hearing in the context of an Article 440 motion was not warranted, (see e.g., People v Cintron, 306 AD2d 151.763 NYS2d 11 [1st Dep't 2003]; People v Saunders, 301 AD2d 869, 753 NYS2d 620 [3d Dep't 2003]; People v Edmonson, 300 AD2d 317.751 NYS2d 280 [2d Dep't 2002]; and People v Santiago. 289 AD2d 1071,735 NYS2d 468 [4th Dep't 2001]).
This Court found Mr. Dellafava's testimony offered during the Article 440 hearing, recanting his trial testimony, to be particularly incredible. Mr. Dellafava's demeanor wreaked of insincerity. His background includes criminal offenses involving deception and Mr. Dellafava has used multiple aliases. The Court finds Mr. Dellafava's explanation as to why he had not come forward with the truth before this time - he was not presented the opportunity - incredible.
Mr. Dellafava certainly had enough experience with the criminal justice system to understand what an investigator does and he knew how to make a statement to the police. Mr. Dellfava was off parole no later than the end of 1995. Even if prior to 1995 he was afraid that his parole would somehow be revoked should he refuse to support the People, that danger subsided over seven years ago.
Mr. Dellafava's testimony is not of such a character as to affect the decision of a jury. This judge did not preside over the 1987 trial, but if Mr. Dellafava was as incredible in 1987 as he was in 2003, this Court cannot imagine that the jury gave his testimony any significant weight. This Court certainly does not now do so.
Santo Valdez Cuello, a convicted murderer, testified via a video connection from the Dominican Republic, where he was deported after his release from state prison in 2000. Mr. Cuello testified that in 1991, Nelson Gutierrez came up to him in an "open dorm". According to the testimony, at Mr. Gutierrez's own initiative, he started telling Mr. Cuello that he had killed Mr. Julius at Clinton in 1986 and that Mr. Wong was falsely convinced. The Court finds this testimony incredible on its face. Although Mr. Cuello claimed that he and Mr. Gutierrez were very close having met a few months before at Clinton, the Court cannot imagine why Mr. Gutierrez would have any need or reason to tell Mr. Cuello that he had gotten away with murder as a conversation starter. No compelling reason was suggested as to why somebody who had committed murder and had escaped punishment for six years would suddenly tell a fellow inmate that he actually committed murder and got away with it. The Court rejects Mr. Cuello's testimony as not plausible and concludes that it would not impact a jury's deliberation in a manner which would help Mr. Wong.
Teofilo Fernandez, a convicted murderer, testified that in 1996 on the first day he arrived at the Clinton Correctional Facility, he went to church because it was a Sunday. While at church on that first day, Mr. Gutierrez informed him that he had killed a black man (who Mr. Fernandez later understood to be Mr. Julius as a result of conversations with attorneys). Mr. Fernandez offers no explanation as to why Mr. Gutierrez felt compelled to admit to murder at their first meeting. If it is possible, the Court finds Mr. Fernandez's testimony even less plausible and less credible than Mr. Cuello's testimony. Mr. Fernandez's testimony would not impact a jury's deliberation in a manner which would help Mr. Wong.
With the exception of [the widow of Tyrone Julius], the remaining witnesses claimed to be eyewitnesses to either the murder of Mr. Julius or Mr. Wong's activities on the date in question. Each witness claims to either have seen the murder committed by someone other than Mr. Wong or claims to have seen Mr. Wong engaging in unrelated activity at the time of the murder. The Court finds that this testimony is cumulative in nature to evidence presented at the trial and raised in prior 440 motions. Nevertheless, given the seriousness of the conviction and the nature of the relief being requested, the Court does not wish to ignore this evidence on that basis and has considered the quality and nature of the testimony in an effort to determine what impact, if any, the witnesses' testimony would have upon the jury's deliberations.
One witness, Umar Abdul-el Aziz, a convicted robber, serving an indeterminate sentence with a maximum length of twenty-five years in state prison testified that two Spanish individuals approached Mr. Julius and one of the Spanish individuals stabbed Mr. Julius. He indicated that he would not identify the two individuals but that he was certain that neither one was Mr. Wong.
The Court found Mr. Aziz's testimony suspicious for a number of reasons, As one point during the middle of Mr. Aziz's direct testimony, he began to breakdown and cry. It appeared to the Court that the crying session was just Mr. Aziz's weak attempt to bolster his credibility. It did not appear to be sincere to the Court. Most interesting to the Court was Mr. Aziz's testimony concerning a gentleman by the name of Noel Washington. According to Mr. Aziz, Mr. Washington was a black panther who was convicted of killing two police officers. Mr. Washington was also Mr. Aziz's dear friend, mentor and confidante. Mr. Aziz stated emphatically that he would have given his life for Noel Washington, if he had been asked. Mr. Aziz indicated that Mr. Washington "was loved by everybody and he was like a mentor, a counselor." Mr. Aziz testified that Mr. Washington had contacted lawyers in different organizations and he indicated that he agreed that something had to be done to right the injustice done to Mr. Wong. Subsequent to Mr. Aziz's conversations with Mr. Washington, Mr. Aziz provided an affidavit exonerating Mr. Wong.
If Mr. Aziz would have been willing to sacrifice his life for Mr. Washington, he may be willing to provide false testimony in a cause that Mr. Washington supported. Indeed, if Mr. Washington enjoyed the popularity chat Mr. Aziz described, Mr. Aziz may not have been the only one so influenced.
Diogenes Filpo testified on behalf of Mr. Wong. Mr. Filpo has been convicted of murder and attempted murder. The attempted murder was committed after Mr. Filpo was an inmate within the Department of Corrections. Although Mr. Filpo admits his guilt with respect to a 1981 murder conviction outside of prison, he claims to be falsely convicted of attempted murder. Under direct examination, Mr. Filpo claimed that he was identifying Mr. Gutierrez as the murderer despite the fact that Mr. Gutierrez was a good friend. On cross, Mr. Filpo admitted that he had no contact whatsoever with Mr. Gutierrez after 1987 and had not realized that Mr. Gutierrez had died until he was told recently by an investigator working on behalf of Mr. Wong.
According to Mr. Filpo, Mr. Gutierrez told him that he was going to attack an individual for personal reasons shortly before Mr. Gutierrez allegedly murdered Mr. Julius. Although Mr. Filpo's description of the actual attack is confusing to the Court, it does not appear, as opposed to other alleged witnesses, that Mr. Filpo is claiming that there was a second individual with Mr. Gutierrez at the time of the attack. Supposedly Mr. Filpo told another inmate Sammy Cabassa of the upcoming attack so that Mr. Cabassa's group would not believe that the attack was racially motivated.
The Court has trouble with Mr. Filpo's version of events and his credibility. In a situation where you come in daily close contact with hundreds of other convicted felons, the Court finds it incredible that Mr. Gutierrez would find that it would be helpful to tell a leader of a rival group that he is about to murder one of their members, but that the murder is a personal matter not racially motivated. Even assuming that the recipient of such a message accepted it at face value, a group leader inclined to protect his own group members would seem more likely to at least warn, if not protect, the intended target of the attack. Even more fundamentally, why would an inmate about to commit murder, tell anyone of his plans in an open yard where hundreds of inmates could possibly overhear him.
Sammy Cabassa also testified on Mr. Wong's behalf. Mr. Cabassa is serving an indeterminate sentence having a minimum of thirty years and a maximum of life for convictions of attempted murder in the first degree, three attempted assaults in the second degree and criminal use of a firearm in the first degree. Mr. Cabassa testified that he did not actually see the stabbing but that he saw Mr. Gutierrez near Mr. Julius shortly thereafter. Mr. Cabassa also corroborated Mr. Filpo's testimony concerning the advanced warning. For the reasons stated above, the Court finds this version of events very difficult to believe.
As with several of Mr. Wong's other witnesses, Mr. Cabassa also testified that "everyone" in the Clinton Correctional Facility knew that Mr. Wong was innocent of this charge and that Mr. Gutierrez was the real murderer at the time of the incident. If true, an enormous conspiracy among hundreds of individuals involving different groups all managed to keep this secret away from the District Attorney and defense counsel from the time of the incident until the time of the trial. Such an enormous and successful conspiracy is impossible to believe.
Shakim Allah testified on behalf of Mr. Wong. Mr. Allah is a two-time convicted murderer serving a indeterminate sentence of 51.5 years to life. Mr. Allah claims that although he did not know Mr. Gutierrez by name, Mr. Gutierrez told him before the attack that he had a problem with two inmates at the Clinton Correctional Facility. One of the inmates was a friend of Mr. Allah's named Iron Mike. Allegedly Mr. Gutierrez told Mr. Allah that he wanted to "do something to Iron Mike and this other inmate." The other inmate that he was referring to was Mr. Julius. Again Mr. Gutierrez's alleged motivation for disclosing his attack plan prior to the attack was to assure Mr. Allah that the attack was not racially motivated.
This alleged disclosure appears to the Court to be even more preposterous than the alleged disclosure to Mr. Filpo. Now Mr. Gutierrez allegedly is not only disclosing the plans of his imminent attack but is disclosing that he wants a measure of revenge on two inmates and is going up to the friend of one of the two inmates and is advising him of the imminent assault upon the other inmate. Although Mr. Allah never claimed to be a friend of Mr. Julius, the fact that Mr. Allah and Mr. Julius apparently had a mutual friend in Iron Mike, would seem to make Mr. Allah an unlikely candidate to trust with such important information. It would seem even less likely that Mr. Gutierrez would also volunteer his desire to harm Iron Mike, a person he apparently knew was Mr. Allah's friend. After learning of Mr. Gutierrez's plans, Mr. Allah allegedly went with Iron Mike and walked around the yard a couple of times. The Court finds Mr. Allah's testimony to be incredible.
Otilio Serrano testified on behalf of Mr. Wong. Mr. Serrano is serving an indetermination sentence having a maximum of twenty-five years for convictions involving kidnapping, unlawful possession of a firearm, armed robbery and assault on a corrections officer. Mr. Serano claims that he has the history with Mr. Wong in that he previously assaulted Mr. Wong without any valid justification. Although after that assault Mr. Serano was concerned about Mr. Wong, Mr. Wong has never attempted to retaliate. Mr. Serano testified that he saw Mr. Gutierrez stab Mr. Julius in the back. Mr. Serano also testified that Mr. Gutierrez claimed he had a problem with Mr. Julius because Mr. Julius "did something to his mother." The Court notes that this testimony is inconsistent with other witnesses who testified that Mr. Gutierrez indicated to them that his motivation was because of a prior assault that Mr. Julius had perpetrated on Mr. Gutierrez. Mr. Serano also indicated that at the time of the stabbing Mr. Gutierrez was walking with another Hispanic individual that he knew as Freddy. Mr. Serrano testified that Freddy just happened to be on the bus with him from the Clinton Correctional Facility on the day that he testified at the instant hearing.
Melvin Edwards, a friend of Mr. Wong and a convicted murderer serving an indeterminate sentence of twenty-five years to life also testified. Mr. Edwards claims that at the time that Mr. Julius was murdered, he and Mr. Julius were standing shoulder to shoulder. No other witness testified that Mr. Edwards was standing immediately adjacent to Mr. Julius at the time of the attack. Mr. Edwards also testified that no one else was with the person that did the stabbing. There seems to be no clear agreement between Mr. Wong's witnesses as to whether the attacker was acting by himself or was walking with another individual at the time of the attack. Mr. Edwards claims that in 1998, twelve years after the murder, he signed an affidavit exonerating Mr. Wong "out of moral obligation."
Although not directly relevant to the instant motion, the Court notes that Mr. Edwards testified that in 1986, he was able to communicate and speak with Mr. Wong in English "quite well." Obviously by calling Mr. Edwards, as his own witness, Mr. Wong is asserting that he is a credible witness. Mr. Edwards' testimony severely undermines the credibility of Mr. Wong's prior assertion in earlier motions that he was denied a fair trial because of the lack of a translator. Mr. Edwards' testimony makes it clear that Mr. Wong has in the past been willing to make false allegations in an attempt to vacate his conviction.
Mr. Edwards is another witness who takes the position that everyone at Clinton knew that Mr. Wong was innocent. Indeed, Mr. Edwards alleges that a petition was circulated and signed by a number of inmates attesting to the fact that Mr. Wong did not commit the murder. Mr. Wong offered no evidence to collaborate Mr. Edwards' testimony regarding the existence of such a petition. Indeed, no other witness referenced the petition or in anyway indicated that they signed the petition.
In the final analysis, the Court considers the evidence that was presented at trial and the evidence that was presented at the 440 hearing to determine whether or not it is probable that the jury would return a more favorable verdict for the defendant if the jury was presented with the 440 evidence at the time of a trial. For the reasons outlined above, this Court finds the evidence presented by Mr. Wong at the 440 hearing to be unreliable and incredible. In stark contrast is the testimony of the People's primary witness at the time of trial, Richard LaPierre. There has been no evidence offered either at trial or the 440 hearing that would demonstrate the Mr. LaPierre was anything other than a disinterested, unbiased and credible witness. The focus of the challenge was not that Mr. LaPierre was incredible, but that his observations were inaccurate. Any individual, particularly any individual who works in the correctional facility, would have to understand the significance and enormous responsibility of identifying another human-being as a murderer. The original jury had the opportunity to look Mr. LaPierre in me eye, listen to his testimony first-hand and decide whether or not they found his testimony sufficiently reliable to reach the conclusion that Mr. Wong was guilty beyond a reasonable doubt. Given the unreliable and incredible evidence offered by Mr. Wong at this 440 hearing, if the 440 evidence was included at the time of a new trial, this Court firmly believes that the new jury's determination would again come down to their evaluation of Mr. LaPierre's testimony. The Court finds that the character of Mr. Wong's 440 evidence is such that it would not create a probability that if such evidence was received at a new trial, the verdict would be more favorable to the defendant.
Accordingly, Mr. Wong's motion to vacate his conviction pursuant to CPL ¤ 440.10(g) must be denied.
IMPROPER CONDUCT
Mr. Wong also contends that his conviction should be vacated pursuant to CPL ¤ 440.10(f) which states as follows:
Improper and prejudicial conduct not appearing in the record occurring during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom.
In Mr. Wong's original motion papers he alleges that the People failed to provide the defendant's trial counsel with certain statements allegedly made by Peter Dellfava contrary to Mr. Wong's rights under New York statutes and the Constitutions of both the United States and the State of New York.
The only evidence offered during the 440 hearing which supported even the existence of Mr. Dellfava's alleged prior statements was the testimony of Mr. Dellfava himself. As discussed above, this Court finds Mr. Dellfava's 440 testimony to be utterly unreliable and rejects it in its entirety. Thus, the Court finds that Mr. Wong has failed to establish evidence to support his claim for relief under this subsection. Mr. Wong's motion to vacate his conviction pursuant to CPL ¤ 440.10(f) must be denied.
VIOLATION OF CONSTITUTIONAL RIGHTS
Mr. Wong also seeks to have his conviction vacated pursuant to CPL ¤ 440.10(h) which states a judgment must be vacated when "the judgment was obtained in violation of the defendant under the Constitution of the State or of the United States." This Court finds no merit to this contention and accordingly denies Mr. Wong's motion made pursuant to CPL ¤ 440.10(h).
IT IS HEREBY ORDERED, that David K. Wong's motion dated August 21, 2002 is hereby DENIED in its entirety.
SO ORDERED
Dated: September 30, 2003 Plattsburgh, New York ENTERED Hon. Timothy J. Lawliss Acting County Court Judge
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