People v Castillo

[*1] People v Castillo 2006 NY Slip Op 51256(U) [12 Misc 3d 1176(A)] Decided on June 30, 2006 Supreme Court, Bronx County Sonberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2006
Supreme Court, Bronx County

The People of the State of New York

against

David Castillo, Defendant.



3189/94

Michael R. Sonberg, J.

Defendant moved pursuant to CPL sections 440.10 (1) (f), (g) and (h) to vacate his conviction for Murder in the Second Degree [PL§125.25 (1)] and Criminal Possession of a Weapon in the Second Degree (PL§ 265.03). This conviction arose from the shooting death of Reynier Rodriguez on February 14, 1994, at 1194 Tiffany Street, Bronx County. Defendant claims his conviction should be vacated because he was convicted on the basis of perjured testimony by Ms. Malka De'Alsi, who has since recanted her trial testimony and has sought to exonerate defendant. Additionally, he claims that his conviction violated his due process rights under both the Federal and State Constitutions. Although the People oppose defendant's motion to vacate his conviction, they consented to a hearing on the recantation issue.

Following a jury trial in Supreme Court, Bronx County, defendant was convicted and on December 5, 1996, Justice George Covington [FN1] sentenced defendant to concurrent indeterminate terms of from twenty-five years to life and five to fifteen years. Defendant is currently serving those concurrent sentences.

On direct appeal, the Appellate Division unanimously affirmed the judgment of conviction. People v. Castillo, 257 AD2d 446 (1st Dept. 1999), lv. denied, 93 NY2d 967 (1999).

The evidence at trial established the facts as follows:

The People's Case

Defendant was arrested after he was identified as the shooter of Reynier Rodriguez by Ms. Malka De'Alsi. On February 14, 1994, at approximately 12:15 A.M., De'Alsi, then 17 years old and residing at 1141 Tiffany Street, Apartment 4, Bronx, New York, arrived home after spending the evening with a friend. She went to her room which was located towards the back of the apartment, which she shared with her mother and brother, on the first floor of the apartment building. As she was getting ready for bed, she heard an argument, primarily in Spanish, but partially in English, coming from the hallway, outside of and in front of her door. She looked through the door's peephole. At that time she was neither concerned nor alarmed by the argument and thus stopped looking through the peephole.

Later, as the argument became louder, she looked through the peephole again. She had a [*2]partial view of an individual's head, whose back was facing her door; in front of this individual was Robert Falaro [FN2], nicknamed Tito, and defendant. She had known Tito for a year and a half and had known defendant for four years. Although De'Alsi did not know defendant's last name at that time, she knew he lived next door as she saw him every day. Defendant's grandfather was the superintendent of her building. A fourth individual, whom De'Alsi did not know, was also present at the entrance of the building. Defendant's face was facing forward, i.e., facing her apartment door, and she could see his face clearly through the peephole, as the hallway was well-lit. When she looked through the peephole that second time, she heard defendant say, "I gotta do what I gotta do," and saw him reach for a gun in his waistband. She could tell it was an automatic because it did not have a cylinder and, although she had never possessed a gun, she was familiar with the shape of an automatic because she had seen them in movies. As soon as she saw the butt of the weapon, before it was completely removed from defendant's waistband, De'Alsi stepped away from her door and ran to the back of her apartment. Within three seconds of leaving the door, De'Alsi heard a single shot. She did not look out her peephole again and, in fact, stayed in her apartment for several days.

Two weeks later, on February 26, 1994, De'Alsi called Crime Stoppers and told them that she had information regarding the shooting. De'Alsi waited to contact the police because she did not want to get involved, since defendant lived in the building next door. She also believed that defendant sold drugs for a living. Crime Stoppers gives rewards of up to $1,000 for information regarding unsolved crimes. Crime Stoppers gave her an identification number and she was subsequently contacted by Detective Garnett of the NYPD. Thereafter, on April 27, 1994, she testified before the Grand Jury and defendant's indictment was handed up.

De'Alsi was cross-examined about her past crime, which was acting as a "mule" in transporting 500 grams of liquid cocaine from Curacao to the United States. On returning to the United States, she was arrested at Newark Airport, cooperated with federal authorities and pled guilty to a federal charge of transporting drugs. In consideration of her cooperation, she was sentenced to ten months served, six months home confinement and five years post-release supervision.

Mark Gonzalez was 21 years old and was awaiting sentence following a guilty plea to robbery and burglary on two separate indictments. On October 31, 1996, two weeks before testifying at the trial, he was in a holding pen in the Supreme Court building in Bronx County with defendant. Defendant was boasting about his case and told him that "he was going to beat his case because a certain female wasn't gonna come because she was in Manhattan," " had a federal case," "that she got caught with drugs" and that her testimony "wasn't gonna be good enough for the case."

Gonzalez had previously, in 1994, met defendant in the law library at Rikers Island seven times and defendant told him that when he and the others were "in the hallway, he was arguing with the guy that got murdered and at the time they was arguing, he pulled out the gun and he shot the fella." Gonzalez cooperated with the Bronx District Attorney's Office and in return for [*3]testifying was to receive a sentence of one and one-half to four and one-half years, in place of the original promise of three and one-half to ten and one-half years, and one of the charges would be dismissed. As part of the plea deal, Gonzalez, who had been incarcerated for thirty-three months, was to be released following his testimony and allowed to spend Thanksgiving with his family. On cross-examination, Gonzalez was questioned at length regarding his motives for cooperating with and testifying for the District Attorney.

Dr. Zoya Schumter, the medical examiner who performed the autopsy on Mr. Rodriguez, testified that a single bullet entered the left side of his nose, perforating his spinal cord and brain. Dr. Schmuter recovered the bullet from the back of Mr. Rodriguez's head.

Detective Anthony Tota determined that the bullet recovered from Mr. Rodriguez body was a .380 caliber copper-jacketed bullet, which had been discharged from an automatic or semiautomatic gun.

The Defense Case

Ricardo Morales knew defendant for about seven years and Falaro for about five years. He knew Reynier Rodriguez because he had gone to school with him. Defendant and Falaro were friends. Approximately five to seven days after Rodriguez's murder, Falaro told Morales that he had shot Rodriguez and showed him a black .380 automatic gun which he had in his waistband. On March 29, 1994, Morales told the police what Falaro had told him.

Christine Ayala, defendant's cousin, knew both Falaro and Rodriguez. On February 14, 1994, she was living in her grandfather's house, where defendant also lived. On that day, Falaro told her that he "caught a body in the next building." At the time, Falaro was holding a black gun. Ayala had her husband come to the door and Falaro again said "I caught a body in the next building." At that point, Falaro put the gun in his waistband and left. Ayala never told the police what Falaro said.

Defendant did not testify at the trial.

Evidence at the Hearing

Ms. De'Alsi, now 29 years old and represented by assigned counsel, testified at the hearing that her grand jury and trial testimony were false. In 1994, she was 16 years old and on February 13, 1994, she had been out with some of her friends, getting drunk and smoking. She came home a little after midnight and, as the result of being drunk, passed out. After she passed out, the police banged on her door and asked her if she had seen anyone; she said no and closed her door. She subsequently heard that someone was shot in front of her door, that three people ran out of the building and that the person who was shot was a big drug dealer. She spoke to her friends, Paula Gonzalez, nicknamed Blondie, and another individual she identified only as Angel, about what had happened and they told her that they saw three people running out the building, they came downstairs and saw the blood and the victim before the police arrived. Angel was a crack addict who came up with the idea to get money for reporting the crime. Because they knew the people who were running out the building, they concocted a story to get the reward. Angel told De'Alsi to call Crime Stoppers, at which time she was given an identification number, and then shortly thereafter met with Detective Garnett of the NYPD. She then told Detective Garnett that she had seen the incident and told him how many people were in the hallway. No one told De'Alsi that the weapon defendant used was an automatic or that only one shot was fired. De'Alsi explained that she knew it was one shot because there was a bullet dent in her door. [*4]What she told Det. Garnett and the grand jury was not the truth, however; she lied because it was her understanding that she would get $1,000.

De'Alsi admitted that in 1995, she trafficked drugs on more than one occasion from Aruba [FN3] to the United States. She had been approached by a woman in her building who offered De'Alsi $4,000 to bring drugs into the country. After she was arrested for transporting 500 grams of liquid cocaine, she faced a ten year mandatory minimum term of incarceration. However, prior to the trial, she entered into a cooperation agreement and pleaded guilty to a federal charge of transporting drugs. She served ten months, followed by six months house arrest, and five years probation. When she was released from jail and while still under house arrest, the Assistant District Attorney [FN4], whom she identified only as "Robert," contacted her and she went to his office. She told him that she did not want to testify and she told him that everything she said was not the truth. He threatened her and told her that he was going to revoke her house arrest and that she would have to finish her five years of post-release supervision in custody if she refused to testify. De'Alsi then claimed that "Robert" told her he didn't care that her testimony would not be the truth. At the time of trial, the Assistant District Attorney made her read her statements again and made her memorize them. She admitted on cross-examination that no one forced her to testify before the grand jury.

De'Alsi described Christine Rosario as her neighbor and friend; she is the older cousin of defendant. After defendant's trial, sometime between 2001 and 2003, De'Alsi " bumped" into Ms. Rosario on the street. Rosario's mother lived in De'Alsi's building. When Rosario told De'Alsi that it was not right that there was an innocent guy in jail, De'Alsi told Ms. Rosario that defendant was far from innocent but it was not right what she did. She and Ms. Rosario talked for a few minutes and she agreed to help defendant. No one in Rosario's family or defendant's family coerced or threatened De'Alsi.

One morning, between six months and two years later, in 2003, Ms. Rosario rang De'Alsi's doorbell and, because she did not want anyone in her family to know about what she was doing, they went downstairs where Ms. Rosario showed her an affidavit. De'Alsi did not want her husband to know because she did not want him to worry that he had to protect her; she did not want her mother to know because she didn't want her mother worrying about her. She briefly looked over the affidavit and signed it (Defendant's Exhibit 1 in evidence). She did not know where the affidavit came from and did not read it completely before signing it. Although the affidavit purports to have been sworn before a notary public, De'Alsi testified that she did not know what an affidavit was and that no notary was present. However, she admitted on cross-examination she had been employed in supreme court and handled documents, specifically affidavits, on a daily basis. Ms. De'Alsi testified that some portions of the affidavit were inaccurate, some portions were accurate and some portions she was not sure about. She did not learn about these inaccuracies until contacted by appellate counsel. De'Alsi then signed a second [*5]affidavit prepared by appellate counsel's summer intern, Sam Roberts (who testified at the hearing) and counsel, effectively recanting her first recantation.

Frank Viggiano, a former NYPD detective and currently employed with the Bronx District Attorney's Office visited De'Alsi at her apartment on October 18, 2005. He subsequently served her with a subpoena directing her to appear at the courthouse where she provided a written statement to the District Attorney disavowing her trial testimony.

Conclusions of Law

A motion to set aside a verdict based on newly discovered evidence is addressed to the discretion of the court and the burden of proof is upon defendant by a preponderance of the evidence. CPL§ 440.30 (6); People v. Welcome, 37 NY2d 811 (1975). Pursuant to CPL§ 440.10 (1 )(g), a court may vacate a judgment of conviction on the ground that "new evidence has been discovered since entry of judgment based upon a verdict of guilt after trial, which could not have been produced by 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 grounds must be made with due diligence after the discovery of such alleged new evidence."

A court may vacate a criminal conviction rendered after trial on the grounds of newly discovered evidence where such evidence: (1) will probably change the result if a new trial is granted; (2) is discovered since the previous trial; (3) was not discovered before the trial by the exercise of due diligence; (4) is material to an issue at defendant's trial; (5) is not cumulative; and (6) is not merely impeachment testimony. People v. Salemi, 309 NY 208(1955), cert. denied 350 U.S. 950 (1956); People v. Suarez, 98 AD2d 678 (1st Dept. 1983); People v. Reyes, 255 AD2d 261 (1st Dept. 1998), lv. denied, 92 NY2d 1053; People v. Taylor, 246 AD2d 410 (1st Dept. 1998).

Here, defendant presents as newly discovered evidence the recantation of Ms. Malka De'Alsi, who claims that her entire story was a fabrication. While evidence of recantation of a witness' testimony is newly discovered evidence, it must be of such weight and character as would justify a trial judge in setting the judgment aside. After review of the trial record, the CPL§ 440 hearing record and documentary record, this court concludes that the proffered evidence does not satisfy the requisite statutory criteria for vacatur and that defendant is not entitled to a new trial on that basis.

In the instant matter, De'Alsi now claims never to have been at the scene of the shooting and asserts that her trial testimony was pure fabrication, concocted in a scheme to collect $1,000 reward money from Crime Stoppers. The guidelines for the consideration of such application are stated in People v. Salemi, supra. In determining whether newly discovered evidence of perjured testimony warrants a new trial, the court should consider the following factors: (1) the inherent believability of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; (6) the relationship between the witness and defendant as related to a motive to lie. People v. Shilitano, 218 NY 161, 170-72 (1916); People v. Wong, 11 AD3d 724 (3rd Dept. 2004).

The mere fact of De'Alsi's recantation does not entitle defendant to a new trial. [*6]Certainly, if De'Alsi's recantation were found to be credible, a new trial would have to be ordered. She was only one of two witnesses connecting defendant to the crime and the only eyewitness connecting defendant to the crime. However, in applying the Shilitano and Salemi factors, the court finds De'Alsi's recantations lack credibility.

The circumstances leading up to the execution of the recantation affidavits are not indicative of reliability. Defendant offers De'Alsi's second affidavit to retract portions of her first affidavit and to establish the falsity of her trial testimony. In her second affidavit, De'Alsi indicated that very little of what was contained in the first affidavit was accurate. Although the first recanting affidavit purports to have been sworn in the presence of a notary public, De'Alsi claims that she did not know the document was an affidavit, and, in fact, did not read it prior to signing it. In the second affidavit, she indicated that there was no notary public present when she signed the first affidavit, meaning that the defendant, working through his cousin, was prepared to submit as a sworn statement a document which had not been properly notarized. The notion that De'Alsi did not know what an affidavit is, that she did not read the document and that she would sign an affidavit without a notary being present, is incredible, especially given her admission that she had been a court employee who handled affidavits on a daily basis.

Of even greater concern is Ms. De'Alsi's unexplained behavior following her encounter with Ms. Rosario who told her that "is it not right that there is an innocent guy in jail." Although Ms. De'Alsi responded that "defendant is far from innocent but it was not right what I did," she did nothing to address the results of her claimed perjury. Judgment was entered against defendant in 1996, and for seven years, De'Alsi did nothing to help a defendant she now says may not have been the perpetrator in a murder. Yet one conversation changed her mind, when she supposedly "bumped" into Ms. Rosario, defendant's cousin. But despite the acknowledgment of her own culpability, she was content to wait some significant period of time between six months and two years until Ms. Rosario gave her the first affidavit. Never having discussed the details of her false testimony with anyone, she nonetheless signed an affidavit without reading it. If she had truly been concerned that an injustice had been done, Ms. Rosario's mother lived in the same building as De'Alsi did. If De'Alsi had fabricated her story, matured and was prompted by conscience to right the wrong she had done, she would have taken some active step to help defendant; access to Rosario, through her mother, was convenient and she was not a stranger to the court system. Contact with defendant's trial counsel would have been an obvious possibility. Her testimony that, having acknowledged her error, she was entirely passive, made no effort to contact anyone and tell them the truth and then just signed the paper that Ms. Rosario presented, with virtually no examination, is not credible. Defendant's failure to present any proof explaining the circumstances of the preparation and execution of the first affidavit further underscores the suspect nature of De'Alsi's recantation.

It makes no difference that the second affidavit was obtained by counsel and is consistent with De'Alsi's hearing testimony. The claimed circumstances surrounding her decision to recant, prompted by a comment from Ms. Rosario which could easily have been ignored, and her inexplicable conduct from that time until she was contacted by appellate counsel, render suspect everything which subsequently occurred.

Given that recantations are notoriously unreliable and recantation evidence has historically been found to constitute some of the weakest forms or newly discovered evidence [*7](People v. Shilitano, supra; People v. Cintron, 306 AD2d 151 [1st Dept. 2003]), particularly when a close relative of defendant is instrumental in obtaining the recantation, this court finds De'Alsi's recantation unworthy of belief.

In evaluating a recantation, the court must first judge the credibility of the witness' recantation and then assess its possible impact on the trial jury. The value which attaches to a recantation is determined by a comparison of the respective motives behind the original testimony and the recantation.

De'Alsi's trial testimony was substantially the same as her grand jury testimony [FN5], despite vigorous cross-examination by defense counsel at trial. On all occasions, she described the argument between defendant, Falaro and the deceased, as being in both English and Spanish. She described what defendant and Falaro were doing and the hand motions employed during the course of the argument. She testified she knew defendant and Falaro, but not the lookout, whom she did not recognize. She testified as to the respective positions of the participants and how the killing occurred. She was consistent in that she never testified that she saw the actual shooting, but rather, heard the argument, went to her door, saw defendant pull out a gun, say, "I gotta do what I gotta do," and described the gun and hearing the gunshot.

In this regard, her hearing testimony significantly lacked credibility when she testified that she surmised that only one shot had been fired due to a purported bullet dent in her door. She did not explain how a bullet dent would disclose how many shots had been fired. Certainly, no ballistics evidence was obtained from her door; the bullet itself was recovered from the deceased's brain. There is no reason to conclude that any bullet ever made contact with the door to her apartment. It is far more logical to conclude that she knew that only a single shot was fired because she was awake, aware of what was transpiring and heard only one shot discharged.

De'Alsi's trial testimony was lucid and not impeached. Through her testimony it was established that defendant, Falaro and a third unidentified person were standing in the hallway outside De'Alsi's door with the victim, Reynier Rodriguez, shortly before the murder. De'Alsi heard an argument and then saw defendant draw an automatic pistol out of his waistband. Seconds later, De'Alsi heard a single gunshot. The shot was also heard by Paula Gonzalez, who immediately afterwards found Mr. Rodriguez slumping down a wall after having been shot. Expert medical and ballistics witnesses confirmed the testimony of De'Alsi and Ms. Gonzalez that Mr. Rodriguez had been killed by one bullet to the brain, fired from an automatic pistol. Furthermore, Mark Gonzalez testified that on more than one occasion defendant confessed his guilt of the crime, and stated that he and his co-defendant had shot Mr. Rodriguez over a drug debt. In addition, two defense witness testified that Falaro admitted that he had shot someone. The defense witnesses, in stating that Falaro showed them a black gun and told them he had shot someone, did not contradict the People's evidence that Falaro shot the victim acting in concert with defendant, or that defendant shot the victim acting in concert with Falaro. Unless these witnesses falsified their testimony, there is no basis for accepting De'Alsi's recantation. Based on these factors, defendant has failed to carry his burden of establishing the falsity of the trial testimony. [*8]

Furthermore, the Appellate Division engaged in a factual review and determined that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. People v. Bleakley, 69 NY2d 490 (1987); CPL 470.15 (5). Great deference is accorded to the jury's opportunity to view the witnesses, hear the testimony and observe demeanor. Moreover, credibility determinations of the jury are entitled to great deference and should not be disturbed unless manifestly erroneous and so plainly unjustified by the evidence that rejection is required in the interest of justice. People v. Gaimari, 176 NY 84, 94 (1902); People v. Corporan, 169 AD2d 643 (1st Dept.1991); People v. Smith, 77 AD2d 544 (1st Dept. 1980).

In this case, the jury was able to consider all the evidence as to De'Alsi's credibility and could have reasonably decided to accept De'Alsi's testimony as true; defense counsel was aware of her federal arrest and plea bargain and cross-examined her with respect to them. Given that De'Alsi was able to answer, in detail, questions about the shooting, such as where it took place and who was present, and that her testimony was corroborated by Mark Gonzalez, it would not have been manifestly erroneous or plainly unjustified for the jury to accept De'Alsi's testimony about the events surrounding the death of Reynier Rodriguez. It is highly unlikely that an apellate court would have overturned defendant's conviction because it found De'Alsi's testimony incredible.

De'Alsi's assertion that the prosecutor threatened her and forced her to testify to her fabricated story is itself not convincing when weighed with the other evidence at trial. De'Alsi's claim that the prosecutor, "Robert," knew of De'Alsi's false testimony is part and parcel of her affidavits and hearing testimony, none of which are credible. De'Alsi claimed that the prosecutor threatened her, told her he was going to revoke her house arrest, did not care that her testimony upon the trial was false and he made her memorize her prior statement. However, two weeks after the shooting and prior to De'Alsi meeting with any assistant district attorney, De'Alsi gave a statement to Detective Garnett describing the shooting and claimed that she witnessed it. De'Alsi's original statement to the police was consistent with her testimony at trial and in the grand jury and with the testimony of Mark Gonzalez, and was corroborated by the medical evidence. It provided the general time line of events and it contained several details, including that the victim and defendant were engaged in an argument in English and Spanish and the type of weapon used. De'Alsi's suggestion that her purportedly concocted story just happened to be consistent with the forensic evidence and the testimony of other witnesses is too convenient to be credible.

It is significant that De'Alsi offered no satisfactory explanation as to why she never attempted to collect the reward money. If De'Alsi's claim was credited, then the only explanation for her trial testimony is her assertion that the People were in a conspiracy to subvert the truth and to suborn perjury. Although the prosecutor who tried the case is no longer alive, the People dispute this in their affidavit.

While the People's case at trial centered on De'Alsi's testimony, there was also testimony from other witnesses, including Gonzalez. Defendant did not testify at trial, so this is not a case based on a comparative assessment of the credibility of defendant and De'Alsi (see People v. Marzed, 161 Misc 2d 309 (Sup Ct NY County 1993); People v. Ramos, 132 Misc 2d 609 (Sup Ct Kings Ct 1985). De'Alsi's testimony was never significantly impeached. No satisfactory motive for her falsifying appears. On the other hand, there is corroboration in minor details that [*9]strengthens her testimony. In De'Alsi's testimony in the grand jury and at her trial, she consistently provided the same details; her testimony has the ring of truth. If her testimony was pure fabrication, then it is highly unlikely that her prior statements, removed in time from the trial, would have been substantially the same. Under these circumstances, no reasonable possibility exists that a jury would accept De'Alsi's recantation as truthful.

Based on the above discussion, the inconsistencies, the falsehoods and the general incredibility of her testimony, defendant is not entitled to vacatur of his conviction on the basis of newly discovered evidence. The nature of the evidence is not such that there is a probability that the newly discovered evidence would change the result if a new trial were granted.

In addressing defendant's due process claims brought under CPL§ 440.10 (1) (h), the use of perjured testimony violates the due process clause when it leaves the court with a firm belief that, but for the perjured testimony, defendant would most likely not have been convicted. Sanders v. Sullivan, 863 F.2d 218 (2nd Cir. 1988). A state's failure to act to cure a conviction founded on a credible recantation by a principal witness exhibits sufficient state action to constitute a due process violation. Id. Because this court has determined that De'Alsi's recantation was incredible and that she did not perjure herself at the trial, defendant's conviction based on that testimony is not a violation of his due process rights.

Based on the above factors, defendant has failed to carry his burden of establishing the falsity of the trial testimony and the reliability of the exculpatory affidavits. Accordingly, defendant's motion is denied in its entirety.

This constitutes the decision and order of the Court.

Dated:Bronx, New York

June 30, 2006

MICHAEL R. SONBERG, J.S.C. Footnotes

Footnote 1: Justice Covington is now deceased.

Footnote 2: Falaro was separately charged under Indictment # 8471/94. He pleaded guilty to Murder in the Second Degree and on September 20, 1995 was sentenced to an indeterminate term of 18 years to life (Covington, J. at plea and sentence).

Footnote 3:At the trial, De'Alsi testified that she received the drugs in Curacao, which she described as "a little island off of Aruba." The court notes that both islands are in the Netherlands Antilles.

Footnote 4: The Court notes that the Assistant District Attorney who tried the case was William Hbrasky, who is no longer alive.

Footnote 5:There were two grand jury presentations; in the first, De'Alsi testified against defendant and the second, she testified against defendant Falaro.