People v Hylton

[*1] People v Hylton 2005 NY Slip Op 51644(U) [9 Misc 3d 1118(A)] Decided on October 14, 2005 Supreme Court, Kings County Goldberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 14, 2005
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

Shiloh Hylton, DEFENDANT.



3354/99

Joel M. Goldberg, J.

Upon consideration of the defendant's pro se motion, dated May 18, 2005,to vacate his October 17, 2000 judgment of conviction for Murder in the Second Degree pursuant to CPL § 440.10 (and re-filed with a date of May 26, 2005), the People's response, dated July 12, 2005, the defendant's supplemental motion, dated July 7, 2005, and the People's supplemental response dated, August 24, 2005, the defendant's motion is denied.

FACTUAL BACKGROUND

According to the testimony at the pre-trial suppression hearing and at the trial, the defendant together with Lonnie Tillery and an unapprehended other held up a group of people, including Wendell Rosiclair, at gunpoint on April 4, 1999 at approximately 5:00 a.m., on 35th Street in Brooklyn. As Wendell Rosiclair struggled to remove a necklace he was wearing, Lonnie Tillary shot him in the chest killing him. The defendant was charged with and subsequently convicted of Murder in the Second Degree (PL § 125.25 [3]) after a jury trial (Firetog, J. at the hearing, J.Goldberg, J., at the trial and sentence).

Pursuant to their investigation, the Police spoke to a number of eyewitnesses to the shooting who had previously been with the deceased at a party at a club named Jennelle's Rose Garden earlier that night. When the deceased and some friends left the party, a dark-colored vehicle followed them. Thereafter, the occupants of that vehicle approached them, robbed them, and one of the robbers shot the deceased.

One of the eyewitnesses, Rebecca Etoria, described one of the perpetrators as wearing a red "Coogi' sweater and another wearing a beige bandana, beige leather jacket, and beige and black sneakers. Other witnesses also described this individual wearing a beige Yankees cap.

Detective Steven Hector received a tip from a confidential informant that the street names of two of the robbers were "Lonnie" and "Shiloh". Lieutenant Vincent DiDonato [*2]spoke to the informant the next day. The informant said he had seen Shiloh, Lonnie and three others at the club the previous morning and that the five of them entered a dark-colored jeep and pursued two cars from the club. The informant further stated that Lonnie had been wearing a red "Coogi" sweater and that Shiloh had been wearing a beige jacket, beige bandana, and beige and black New Balance sneakers. The police showed the informant over a thousand photographs, and from them the informant identified the defendant as the person he knew by the name of Shiloh. The informant further stated he was aware that Shiloh had been recently released from prison and that one of the members of Shiloh's group, whose name he did not know, owned a dark-colored jeep.

The next day, April 6, 1999, Rebecca Etoria identified the defendant in a photo array and stated that the defendant had been the robber wearing the beige bandana around his face and under his nose. Rebecca Etoria further identified Lonnie Tillery in a separate photo array.

The police determined that the defendant had, in fact, been released from prison about six months before, in September, 1998. On April 8, 1999, Detective Hector met with the defendant at the office of the defendant's parole officer. The defendant told the detective that he knew why the detective was there and that he had been told that a friend of his had robbed a man of a Rolex and killed him. The defendant had both a beige Yankees cap and a beige bandana with him at the parole office, as well as an advertising flyer that had been distributed at Jennelle's Rose Garden on the morning of April 4, 1999.

On April 9, 1999, the defendant was placed in a lineup and was positively identified by Rebecca Etoria. The defendant was questioned by the police and originally denied knowing Lonnie Tillary or the unapprehended other. While processing the defendant's personal effects, the police found a photo of a child marked "little Lonnie". The police confronted the defendant with the photo, and the defendant then admitted to knowing Lonnie Tillary and the unapprehended other.

At a combined Dunaway-Mapp, Wade, Huntley hearing, before the Hon. Neil Jon Firetog, the Court found there was probable cause for the defendant's arrest, and denied defendant's motion to suppress the statements and property as well as the lineup identification by Rebecca Etoria. A second lineup identification by Negesti Chung, was precluded for failure to serve notice pursuant to CPL § 710.30 (1) (b).

PROCEDURAL BACKGROUND

The defendant was convicted after jury trial of Murder in the Second Degree (PL § 125.25 [3]), felony murder, and was sentenced on October 17, 2000, to an indeterminate term of twenty years to life to run consecutively with any remaining sentence on a violation of parole under Kings County Indictment Number 588/97.

The defendant appealed his conviction to the Appellate Division. On May 2, 2002, the Appellate Division unanimously affirmed defendant's conviction. People v. Hylton, 2 AD3d 459 (2d Dept. 2003). [*3]

On March 16, 2004, the Court of Appeals denied defendant leave to appeal from the Appellate Division's affirmance of his judgement of conviction. People v. Hylton, 2 NY2d 741 (2004) (Ciparick, J.).

THE DEFENDANT'S CLAIMS

The defendant filed a photocopy of a motion to vacate judgment, sworn to on May 18, 2005, with the clerk's office of the Supreme Court, Kings County. This motion was calendered and referred to this Court for decision. The defendant subsequently sent an "original" version of this motion to the Clerk's office and to the Kings County District Attorney's Office, sworn to on May 26, 2005. Although the People's responses refer to the motion as being dated May 26, 2005, the actual date of the motion that was calendered for decision was May 18, 2005.

In this motion the defendant claims he was denied effective assistance of counsel at trial, because his trial lawyer did not call as a witness and declined to interview a prospective prosecution witness who had "recanted." This witness was the confidential informant referred to in the suppression hearing. While outside the courtroom, this witness told the prosecutor before being called as a People's witness at trial that he did not remember seeing the defendant at Jennelle's Rose Garden, contradicting what the police claimed at the suppression hearing the witness had told them. The prosecutor stated the witness did not "exculpate" the defendant by stating that the defendant was not at Jennelle's Rose Garden; the witness just could not say he saw the defendant there.

In supplemental papers, sworn to and dated July 7, 2005, the defendant expanded upon his claim of ineffective assistance of counsel arguing that his trial attorney also should have moved to re-open the suppression hearing based upon the purported recantation of the confidential informant.

Further, the defendant submitted as an Exhibit a copy of redacted motion papers from an undisclosed defendant to vacate an unrelated 1997 murder conviction. The motion in that case was based upon the affidavit of Ricardo Johnson recanting his trial testimony in that case. Apparently, Ricardo Johnson had testified at that trial that he could not see the perpetrator's face, but in his affidavit Johnson stated that, in fact, he saw the perpetrator who was not the defendant who had been convicted, and that the prosecution had known his trial testimony was false.

In his supplemental papers the defendant asserted that Ricardo Johnson was also the confidential informant in this case who had recanted his identification. The defendant argued in his supplemental papers that the Ricardo Johnson affidavit demonstrated that because Ricardo Johnson purportedly perjured himself when he testified at the unrelated murder trial, he also lied to the police when he implicated the defendant in this case, thereby supporting his argument that his trial attorney should have called the confidential informant as a witness and moved to re-open the suppression hearing. [*4]

THE PEOPLE'S RESPONSES

The People filed an answer to the defendant's initial motion, dated July 12, 2005. The People contended the defendant's claim of ineffective assistance of counsel was procedurally barred by CPL § 440.10 (2) (c), because this claim was not raised on the defendant's direct appeal despite sufficient facts in the trial records to have raised this claim.

The People also argued that the claim of ineffective assistance was meritless, because trial counsel was not ineffective despite neither calling the recanting informant as a witness nor interviewing him. This witness's purported recantation did not exculpate the defendant, but merely would have consisted of his testimony that he did not see the defendant in the club. Had this witness testified that the defendant was not in the club, the prosecutor on cross-examination could have impeached the defendant with his prior inconsistent statements to the police, including his photographic identification of the defendant. Therefore, the People argued that the failure to call the recanting witness on the defense case did not constitute ineffective assistance of counsel entitling the defendant to a new trial.

The People responded to the defendant's supplemental motion with an answer dated August 24, 2005. The People again noted that the defendant's claims were procedurally barred by CPL § 440.10 (2) (c), because the failure by defense counsel to move to re-open the suppression hearing was also a matter of record that could have been raised on direct appeal. The discovery of the Ricardo Johnson affidavit after the trial, the People argued, even assuming Ricardo Johnson was the confidential informant in this case, was not relevant to the ineffective assistance claim which was focused on defense counsel's failures to call the recanting confidential informant as a witness and to move to re-open the suppression hearing and not on the credibility of the recanting witness.

Further, the People argued that if the confidential informant had recanted sworn trial testimony in another case, this would not make the recantation in this case more credible, but, rather, make it less credible. The newly discovered Ricardo Johnson affidavit would not justify the defendant's failure to raise the ineffective assistance claim on appeal, because the affidavit submitted in the other case, in which Ricardo Johnson admits to perjury, actually undermines the credibility of the recantation in this case. The People also argued that even if the recantation were true, the police had independent probable cause to arrest the defendant based on Rebecca Etoria's photographic identification of the defendant. Therefore, the result of the suppression hearing would not have changed even if it had been re-opened at defense counsel's request.

In addition, the People noted that Ricardo Johnson testified at a post-trial hearing in the unrelated murder case based on his recantation affidavit and was found by the Court to be "wholly untrustworthy" and "inherently incredible" (Gary, J.). At the time of this hearing, Ricardo Johnson was serving a twenty-year-to-life prison sentence. If Ricardo Johnson had testified at a re-opened suppression hearing in this case, the People argued, there is no reason to believe his testimony would have been credited over the testimony of the police detectives who testified the confidential informant had identified the defendant.

DISCUSSION

For the reasons stated in the People's responses, the defendant's motion is denied.

The claims are procedurally barred by CPL § 440.10 (2) (c), because adequate facts appear on the record for the defendant to have raised these claims on direct appeal. The discovery of the Ricardo Johnson affidavit, even assuming Ricardo Johnson is the confidential informant in this case, is not sufficient grounds to excuse the failure to raise the ineffective assistance claim on appeal.

Ricardo Johnson's recantation of his trial testimony in the unrelated murder case occurred after the trial in this case, and trial counsel here cannot be faulted for not making use of facts that did not exist at the time he decided not to interview or call the confidential informant in this case. Just as Ricardo Johnson's affidavit, even assuming he is the confidential informant in this case, would not be sufficient "newly discovered evidence" pursuant to CPL § 440.10 (1) (g) to create a probability of a more favorable verdict to the defendant, neither is it sufficient to mitigate the failure to raise on appeal the ineffective assistance claims now being made.

Finally, for the reasons stated in the People's answers, the defendant's claims of ineffective assistance are without legal merit.

An attorney is "strongly presumed" to have rendered effective assistance to his client. Strickland v. Washington, 466 US 688, 690 (1984); People v. Rivera, 71 NY2d 705, 709 (1988). To rebut this presumption, a defendant must allege facts to demonstrate that his counsel's assistance lacked even "reasonable competence," People v. Satterfield, 66 NY2d 796, 799 (1985) and that he was "deprived of a fair trial by less than meaningful representation." People v. Flores, 84 NY2d 184, 187 (1994); See also People v. Benevento, 91 NY2d 708, 712 (1998) (claim of ineffective assistance of counsel will not be countenanced where a defendant has received "meaningful representation").

As noted, calling the confidential informant as a defense witness at trial would not have been productive, because doing so would have opened the door to admission of the informant's prior statements to the police to impeach the informant's testimony that he did not see the defendant at the club. The defense attorney, an experienced and able trial attorney, cannot be found at fault for not opening the door to this evidence which would have supported the other identification evidence and likely have damaged the credibility of the defense case in the eyes of the jury if the informant's recantation testimony was not believed.

As for not moving to re-open the suppression hearing, to do so would have required defense counsel to call the informant as a witness before the Court and convince the Court that the "recantation" was credible, meaning that the police had fabricated their account of what the informant had told them. Again, defense counsel cannot be found at fault for not undertaking a strategy that very likely ultimately would not have benefitted the defendant.

Finally, defense counsel may very well have suspected that this "recantation" was untruthful, perhaps, due to the actions of the defendant or others acting on the defendant's [*5]behalf. Afterall, there was an unapprehended perpetrator in this case who would not wish to have the defendant convicted and possibly turn against him.

If defense counsel suspected the "recantation" to be the product of witness intimidation that could be connected to his client, there could very well have been nothing to gain from interviewing the informant if, as noted, defense counsel would not be calling the informant as a witness. If defense counsel had spoken to the witness and learned that the defendant was involved in witness intimidation, defense counsel may have been ethically obligated to report this to the authorities. If so, he would have had to ask to be relieved from the case causing a mistrial. It is not unrealistic to believe that defense counsel had these issues in mind when he declined to interview the informant.

Thus, not speaking to the informant was a sound defense strategy to protect the defendant from being possibly implicated in the crime of witness intimidation, a decision that even with the benefit of hindsight cannot be faulted. Defense counsel "could have reasonably considered that his client's interest would best be served" by not interviewing the informant, and such a strategic choice should not be second-guessed. People v. Flores, 84 NY2d 184, 188 (1994) (defense counsel's failure to move for a new trial following per se Rosario error by the prosecutor did not constitute ineffective assistance of counsel, there being "any number of professional strategic reasons" justifying the decision).

Accordingly, the defendant's motion is denied.

SO ORDERED

JOEL M GOLDBERG

JUDGE