People v Rosario

[*1] People v Rosario 2006 NY Slip Op 52358(U) [13 Misc 3d 1246(A)] Decided on December 5, 2006 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2006
Supreme Court, Bronx County

The People of the State of New York,

against

Pedro Rosario, Defendant.



5716/92

Richard Lee Price, J.

On November 15, 1995, defendant was convicted, upon a jury verdict, of murder in the second degree (PL 125.25[1] (three counts), conspiracy in the second degree (PL 105.15), and criminal possession of weapon in the second degree (PL. 265.03[2]). On November 27, 1995, this Court sentenced him to an indeterminate term of imprisonment totaling 38 1/3 years to life. Defendant now moves to vacate his conviction pursuant to CPL 440.10(1)(b)(g),(h).

Factual and Procedural Background

Defendant Pedro Rosario was indicted, along with co-defendants Gary Crespo and Cory Jackson,[FN1] for murder in the second degree and other related charges arising out of a triple homicide which occurred on May 18, 1992 inside an apartment at 350 St. Ann's Avenue in the Bronx. The People alleged that defendant and co-defendant Crespo had "put out a contract" for the killing of Otis Blair, one of the three victims, which was then carried out by co-defendant Jackson. Blair was an employee in defendant's drug operation, whom defendant believed was stealing from him.

Although there were no witnesses to the actual shooting of the three victims, there were two circumstantial witnesses to the events: Milton Harris and Nicholas Taylor. On May 21, 1992, Taylor, then thirteen years of age, was interviewed by the police and the district attorney's office. Taylor gave two statements, one recorded by Detective James Slattery of the 40th Precinct, and a second recorded by a stenographer during questioning by an assistant district attorney. He stated that he was standing in the stairwell outside the apartment where the shooting occurred and observed co-defendant Jackson and two other men, one of whom was [*2]armed, enter the apartment just before the shooting. Taylor stated that he saw one of the victims open the door after Jackson had already exited the apartment and that Jackson was standing outside the apartment when the shots were fired.Despite the exculpatory nature of Taylor's statements, the People did not turn them over to the defense until September 6, 1995, approximately six months before trial. Defendants moved for dismissal of the indictment based upon the People's alleged Brady violation.

On September 20, 1995, the Court conducted a hearing on the alleged Brady violation. Detective James Slattery and Assistant District Attorney Tony Castro testified as to the circumstances of Taylor's statements.

The prosecutor also produced Taylor for an in-court examination. During the in-court examination, Taylor showed that he had some memory of the events in issue. He remembered being at the scene of the crime, and that gunshots were fired, but was unable to recall many of the details that he reported in his May 21, 1992 statements. He stated on the stand numerous times that he could not recall what happened or what he said to the police, but he did remember making the statements and telling the truth to the best of his ability.The court observed that Taylor was learning disabled, a fact conceded by all of the attorneys, and that the learning disability was the reason behind his extreme memory loss. Since Taylor's testimony demonstrated that he could no longer recall anything about the events surrounding the shooting, all three defense counsel decided that they would not present him as a witness at trial.

After the hearing, this Court found that Taylor's statements constituted Brady material, but that the extraordinary remedy of dismissing the indictment was not warranted (see People v Rosario, 168 Misc 2d 182 [Sup. Ct. Bx. Cty. 1995]). The Court permitted defendants to introduce both of Taylor's statements at trial and gave an adverse inference charge regarding the People's Brady violation.

The evidence presented at defendant's trial consisted of the testimony of the prosecution's main witness, Milton Harris, one of the managers of defendant's crack-selling operation. Harris testified that he was present at a meeting held before the shooting, during which defendant and co-defendant Crespo, defendant's "right-hand man," agreed to pay co-defendant Jackson $2,500 to kill Otis Blair, and gave Jackson the murder weapon. The People also presented evidence that the weapon used in the shooting was owned by defendant, and that defendant had threatened to harm Harris and his family if he did not provide favorable testimony.By pro se motion dated July 19, 1999, defendant moved to vacate his judgment of conviction pursuant to CPL 440.10, alleging that the People had withheld Brady material and knowingly introduced false evidence, and that he was denied effective assistance of counsel. Specifically, defendant asserted that the People violated Brady by failing to disclose alibi witnesses and information regarding who supplied the murder weapon, and had improperly introduced the testimony of Milton Harris, knowing it to be false. He also argued that defense counsel was ineffective for failing to subpoena material witnesses. By written decision dated December 23, 1999, this Court denied defendant's motion summarily.

By pro se motion dated January 26, 2000, and papers filed by appointed counsel, defendant sought leave to appeal the denial of his first CPL 440.10 motion On March 16, 2000, the Appellate Division, First Department, granted defendant's application for leave to appeal the denial of his CPL 440.10 motion and to consolidate it with his direct appeal. [*3]

On appeal, the judgment of conviction was affirmed (see People v Rosario 309 AD2d 537 [1st Dept. 2003]). The Appellate Division agreed that the sanction of dismissal was not warranted for the People's Brady violation and that any prejudice resulting from the delayed disclosure was obviated by the admission into evidence of Taylor's statements with an appropriate adverse inference instruction against the People. The Court also found that the jury's verdict convicting defendant of three counts of murder was supported by legally sufficient evidence. Leave to appeal was denied (see People v Rosario, 1 NY3d 579 [1st Dept. 2003]).

By pro se motion dated December 21, 2004, defendant moved for a writ of error coram nobis alleging that his appellate counsel rendered ineffective assistance of counsel. On December 22, 2005, the Appellate Division, First Department, denied defendant's application for a writ of coram nobis. On February 27, 2006, the Court of Appeals denied leave to appeal.

Defendant now moves to vacate his judgment of conviction pursuant to CPL 440.10(1)(b)(g), (h) based upon purported newly discovered evidence, and alleged misconduct by the People which denied defendant his constitutional rights. Defendant argues that the People intimidated Taylor prior to the Brady hearing and prevented him from testifying at defendant's trial. Defendant relies on statements Taylor allegedly made to two defense investigators, James. F. Savage, Jr. and Thomas F. Wiers, during interviews conducted between July 21, 2004 and May 3, 2005. According to the investigators' notes, during the July 21, 2004 interview, Taylor stated that he "was not told to lie at (sic) hearing but was repeatedly told things like if he remembered things something might happen to him because there was a contract out on him." During the May 3, 2005 interview, Taylor allegedly stated that he was told "to make sure that I say that Cory Jackson was involved because if I didn't, there would be a $50,0000 contract on me." Taylor allegedly stated that the person who told him to say that Jackson was involved was a police officer or assistant district attorney, whom he described as "male, clean cut, tall, wearing a suit."

In opposition to defendant's motion, the People argue that the investigators' interviews of Taylor are unreliable because they were neither transcribed nor recorded, and that the purported new evidence would not have affected the verdict.In reply, by letter dated September 1, 2006, defendant submitted a "new" undated sworn statement allegedly made by Taylor to investigator Wiers. Taylor states that he went with Jackson and Harris to an apartment building on Lexington Avenue (as opposed to .St. Anne's Avenue where the incident occurred), and that Harris, who was armed, entered the apartment with Jackson. Shortly after they entered the apartment, Taylor heard "more than a dozen shots" and saw Jackson and Harris come running out of the apartment. Taylor stated that when the police and prosecutor interviewed him, "Detective Slaughter" told me if I did not say who had done this, that once I hit the streets there would be a $50,000.00 contract on me." Taylor also stated that "[o]ne of the D.A.'s. told me if I did not tell what they wanted to hear that someone was going to get me on the streets for this." Taylor stated that Pedro (defendant) "was not even in the area where this occurred."

By letter dated September 14, 2006, the People responded that Taylor's most recent statement was unreliable because it is wrought with inconsistencies and had no bearing on defendant's guilt.

[*4]

Conclusion

It is well settled that on a motion for a new trial based upon newly discovered evidence the movant must establish, among other things, that "the newly discovered evidence must be such as to probably, not merely possibly, change the result if a retrial is had, and also not have been discoverable before trial by the exercise of due diligence" (People v Priori, 164 NY 459, 472 [1900]). In this case, defendant failed to establish that Taylor's alleged statements to defense investigators twelve years after the incident would have probably resulted in a more favorable verdict (CPL 440.10 [1][g]; People v Salemi, 309 NY 208, 215-216 [1955], cert. denied 350 US 950 [1956]).

In determining whether evidence would probably change the result if a retrial were had, the court must consider the veracity of the purported witness and the probability of his account (see People v Rodriguez, 193 AD2d 363 [1st Dept. 1993], lv denied 81NY2d 1079 [2006]).The court finds unworthy of belief defendant's claim that Taylor fabricated his memory loss at the hearing (see People v Joseph, 8 AD3d 61 [1st Dept. 2004], lv denied 3 NY3d 673 [2004]). The transcript of the Brady hearing is full of instances where everyone agreed that Taylor was impaired and had difficulty remembering things and does not support defendant's claim that the prosecution prevented Taylor from testifying at trial. To the contrary, the record amply demonstrates that Taylor's impairment and inability to recall the incident was the reason he was not called to testify. Notably, Taylor did not refuse to testify. All three defense counsel decided not to call Taylor as a witness after listening to his testimony at the Brady hearing. Accordingly, defendant's claim that he was denied due process by the People's alleged misconduct is unavailing (see People v Dukes, 284 AD2d 236, lv denied 97NY2d 681 [2001]).

Second, the statements Taylor allegedly made to defense investigators on July 21, 2004 and May 3, 2005 are unreliable because they were not recorded and are merely set forth in the investigator's notes (see People v Pugh, 236 AD2d 810 [4th Dept. 1997], lv denied 89 NY2d 1099 [1997]). Taylor's undated sworn statement, referred to in defense counsel's reply letter dated September 1, 2006, is inherently unreliable since it contains glaring errors and contradicts his prior statements (see People v Pugh, supra at 4). For example, Taylor states that the shooting occurred in a building on Lexington Avenue, when it is undisputed that the shooting occurred in a building on St. Anne's Avenue. Second, Taylor states that co-defendant Jackson was inside the apartment when the shooting occurred, which is inconsistent with his previous statements that Taylor was in the stairwell. Third, Taylor states that the perpetrator he described as "Flat Top," whom he previously identified as Louis Marin, was actually Harris.

Taylor's claim that he was threatened by someone named "Detective Slaughter" is also unreliable. Although Taylor made a written statement to an individual named Detective Slattery a few days after the shooting, he never indicated that the detective threatened him in his previous statements to defense investigators, instead claiming that the individual who threatened him was an assistant district attorney, whom he could not identify.

Further, there is no probability that the verdict would have been different had the jury heard the purported new evidence (see People v Salemi, supra, 309 NY at 215-16; People v Machicote, 23 AD3d 264 [1st Dept. 2005], lv denied 6 NY2d 757 [2005]). Notably, Taylor's previous exculpatory statements that Jackson was not inside the apartment at the time of the shooting were introduced at defendant's trial. Thus, the exculpatory evidence was before the [*5]jury. Indeed, Taylor's "new" statement that Jackson was inside the apartment is inculpatory since the People's theory was that Jackson was hired by defendant to perform the shooting. Taylor's "new" statement that defendant was not in the area at the time of the shooting is not exculpatory, since the People never alleged that defendant was at the scene. Finally, as noted above, Taylor's new statements are inherently unreliable since they contain errors and are inconsistent with his prior accounts of the incident. Accordingly, Taylor's purported new evidence has no significant exculpatory value and does not create a probability of affecting the verdict (see People v Salemi, supra at 215-216; People v Paredes, 22 AD3d 297 [1st Dept. 2005]), lv denied 6 NY3d 757 [2005]).

In sum, the court concludes that Taylor's alleged statements to defense investigators twelve years after the incident do not warrant a new trial on a theory of newly discovered evidence or violation of due process, nor do they warrant an evidentiary hearing (see People v Lugo, 25 AD3d 460 [1st Dept. 2006]), lv denied 6 NY3d 815 [2006]). Accordingly, for the foregoing reasons, defendant's motion to vacate his conviction based upon newly discovered evidence is denied summarily.

This shall constitute the Decision and Order of the Court.

Dated:Bronx, New York

December 5, 2006

E N T E R

_________________________

Richard Lee Price, J.S.C.

Footnotes

Footnote 1:Gary Crespo pleaded guilty to conspiracy in the second degree and was sentenced to an indeterminate term of 4 ½ to 13 years imprisonment. Corey Jackson was convicted of three counts of murder in the second degree, and sentenced to three consecutive terms of 25 years to life. His conviction was affirmed on appeal (see People v Jackson, 246 AD2d 683 [1st Dept. 1999], lv denied 94 NY2d 881 [2000]).