People v Vasquez
Annotate this CaseDecided on June 2, 2006
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Israel Vasquez, Defendant.
1086/95
Michael R. Sonberg, J.
In 1997, defendant was convicted after a jury trial (William Donnino, J.) of Murder in the Second Degree in the shooting death of Denise Raymond. Defendant now moves for an order directing postconviction DNA testing of genetic material contained in evidence which was recovered at the crime scene, pursuant to Criminal Procedure Law section 440.30 (1-a), authorizing the court to order such testing after judgment has been entered, and the Due Process clause of the New York State Constitution. Specifically, defendant seeks an order directing DNA testing on two separate hair samples: one sample recovered from a pillow in the bedroom and another recovered from a trash receptacle in the kitchen beneath the sink in Denise Raymond's apartment.
Defendant further seeks an order directing that law enforcement authorities compare the fingerprints obtained from the decedent's apartment with those in the SAFIS[FN1] database and that he be provided with clear copies of the latent fingerprints lifted from the decedent's apartment for independent analysis.
The People submit an answering memorandum of law, opposing the relief sought by defendant and urging denial of the motion.
Hair Samples and DNA
Defendant argues that because the hair samples recovered from the decedent's apartment were collected in connection with his prosecution, a DNA test must be performed comparing the samples to the DNA samples on file in New York's DNA data bank. If the DNA of the recovered hair samples does not match the deceased's, defendant's or any of his codefendants', but does match that of another individual in the DNA data bank, defendant argues this would provide compelling evidence that someone other than defendant was in the apartment during the homicide and thus, a more favorable verdict would have resulted if such fact had been introduced at trial.
The court must grant an application for DNA testing on specific evidence, upon defendant's request, if it determines that had a test had been conducted on such evidence and the results had been admitted at the trial, there exists a reasonable probability that the verdict would have been more favorable to defendant. CPL 440.30 (1-a). Defendant argues that evidence [*2]identifying a different individual as the donor of one or both of the hair samples in the victim's apartment would certainly have resulted in a more favorable verdict. Defendant's argument is without merit.
The evidence in this case established that Ms. Raymond was found lying face down in her bedroom, shot twice in the head, with the bullets fired through pillows that were placed over her head, presumably to muffle the sounds of gunfire. In the kitchen, the refrigerator door was ajar, and an empty juice container, mustard dispenser and two sponges were in the sink. Empty luncheon meat wrappers were found in the refrigerator. On the same day that Ms. Raymond's body was found, Cathy Gomez was in the park near her house with defendant and codefendants Cosme, Ayers and Perez, who were speaking about the recent murder. Defendant told Ms. Gomez that he had been in the apartment, drinking juice and having a sandwich.
There was no forensic evidence elicited at the trial linking defendant or his codefendants to the crime. The hair samples, not having been tested, were never scientifically connected to defendant or to anyone else. As a result, any DNA test results would be immaterial to the issue of defendant's guilt and as such would not have an impact on the outcome of the trial. Because there was no scientific evidence used to obtain the conviction, the inclusion of another person and the exclusion of defendant as the donor, in this evidentiary context, makes it unlikely that there would have been a verdict more favorable to defendant if a DNA test result identified some person other than the defendant.
More importantly, there was no critical testimony that could be seriously impeached by the test result. People v. De Oliviera, Jr., 223 AD2d 766 (3rd Dept. 1996). Under these circumstan-ces, it is improbable that the results of DNA testing on the hair samples would have any effect on the verdict. In examining the larger statutory scheme of postconviction testing, neither the statutory language nor its legislative history supports DNA testing in cases where the results are unlikely to have any impact upon the verdict. People v. Tookes, 167 Misc 2d 601 (Sup Ct NY County 1996).
Defendant further argues that Cathy Gomez's "ear witness" testimony was inherently unreliable. He points to the fact that at the trial, Gomez testified that defendant said that he was in the victim's apartment, drinking juice and having a sandwich; however, she testified in the Grand Jury that codefendant Ayers made this statement. Furthermore, he argues that Gomez was a suicidal and unstable teenager whose testimony was compelled by police escort and a material witness order.
Although postconviction DNA testing can be used to attack the credibility of witnesses, these facts do not present the situation in which the exclusion of defendant or the inclusion of a previously unknown person as the donor of the hair samples recovered from the deceased's apartment would be dispositive of the trial issues. Moreover, defendant has failed to establish that such information would have further undermined Gomez's testimony and probably would have resulted in defendant's acquittal. In this evidentiary context, it is unlikely that there would have been a verdict more favorable to defendant even if DNA tests excluded him or included a previously unknown person as the donor of the hair on the pillow and in the trash receptacle.
Fingerprints
The request to reanalyze the fingerprints that were found in various places in and around Denise Raymond's apartment amounts to a demand for postconviction discovery, which has no [*3]basis in statutory authority under section 440.30 (1-a), or in the discovery provisions of the Criminal Procedure Law. The court rejects defendant's contention that the justification for DNA testing is equally applicable to fingerprint analysis, as well as the contention that he is entitled to postconviction discovery. The court does not have the power to fashion the relief defendant seeks in the absence of statutory authority. In enacting section 440.30 (1-a), the legislature created an exception to the usual rules, apparently motivated by the vast improvements in DNA-related technology; if it had intended to include fingerprints or any other type of forensic evidence, it certainly had the ability to do so.
The mere assertion of the proposition that the defendant is entitled to have the unidentified fingerprints reanalyzed to determine whether they constitute newly discovered evidence is to demonstrate its illogic. A defendant would have the right, in perpetuity (since there are consequences of conviction which continue post-incarceration), to have law enforcement authorities recheck all previously unidentified fingerprints for possible identification. How frequently could a defendant make this application, since the database clearly expands every time a person is fingerprinted for the first time? The concept of finality in verdicts would be turned on its head.
Whatever surface appeal the argument might have if the unidentified fingerprints were central to the case (for example, on a weapon used for an assault or homicide), in this case, the fingerprints have no obvious relationship to the guilt or innocence of the defendant. Moreover, the jury in this case knew that there were fingerprints recovered which could not be connected to this or any other of the defendants and, nonetheless, found the defendant guilty. Even in the situation where unidentified fingerprints are found on a crucial piece of evidence, if a jury finds guilt beyond a reasonable doubt and the court finds that the evidence was sufficient to support the verdict, there is not, nor should there be, an obligation on the part of law enforcement to regularly check to see if the owner of the fingerprints can be identified.
Defendant further argues that, even if this would not be newly discovered evidence, he should nevertheless receive the testing and disclosure as Brady material. In support for his position, defendant cites Matter of Dabbs v. Vergari, 149 Misc 2d 844, 847 (Sup Ct Westchester County 1990), where the court converted an article 78 proceeding (to compel the District Attorney to permit DNA testing) into a motion for discovery. It then went on to compare the request for the DNA test to the prosecution's constitutional pretrial requirement to disclose exculpatory evidence, and held that the evidence should be discoverable even after conviction when the evidence had been preserved and has a high exculpatory potential. In Dabbs, the defendant had been convicted of having committed a forcible rape, based on the victim's identification of him as the perpetrator. At the time of trial, the forensic witness was unable to conclude whether semen belonged to defendant. Since the victim testified that she had not had sexual intercourse with anyone other than the rapist, the identity of the person whose semen was recovered was central to the issue of guilt or innocence and the court, anticipating the legislature's amendment, ordered that the items containing the semen be retested.[FN2] The validity of Dabbs is far from certain, as its rationale has never been relied on by another New York court, [*4]and this court declines to follow it.
In addressing defendant's due process argument, under Brady v. Maryland, 373 U.S. 83, 87 (1963), the People have a due process obligation to disclose, without delay, evidence in their possession that is material to either guilt or punishment. Defendant does not contend that any exculpatory DNA evidence or exculpatory fingerprint evidence is within the prosecutor's possession. He seeks to compel the People and the court to join him on a "fishing expedition," which, at most, would disclose that hair belonged to someone other than the deceased, defendant or his codefendants, and that fingerprints disclosed the presence in Ms. Raymond's apartment, at some unknowable point in time, of someone not previously identified. Contrary to fact patterns like those in Dabbs, the postconviction identification of the hair or any of the previously unidentified fingerprints could not possibly lead to defendant's exculpation.
Conclusion
In light of this assessment of the trial evidence, I conclude that if a DNA test of the two hair samples had been conducted and if the results had been admitted in the trial resulting in the judgment, there does not exist a reasonable probability that the verdict would have been more favorable to defendant. As for the request to reanalyze fingerprints and provide defendant with copies of them, I find that the court lacks any authority to do so and, even if it did, there is not a reasonable probability that any positive results of that analysis would produce a verdict more favorable to the defendant.
Defendant's motion is denied in all respects.
This constitutes the decision and order of the Court.
Dated: Bronx, New York______________________
June 2, 2006MICHAEL R. SONBERG, J.S.C.
Footnotes
Footnote 1: State Automated Fingerprint Identification System.
Footnote 2:Upon retesting the semen was determined not to have belonged to him and the conviction was vacated and the indictment dismissed.
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