People v Garry

[*1] People v Garry 2009 NY Slip Op 51327(U) [24 Misc 3d 1208(A)] Decided on June 24, 2009 Supreme Court, Bronx County Price, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 7, 2009; it will not be published in the printed Official Reports.

Decided on June 24, 2009
Supreme Court, Bronx County

The People of the State of New York

against

Edward Garry, Defendant.



6083-1995



Defendant

Peter J. Schaffer

Office of the District Attorney

Bronx County

Gary Weil

Richard Lee Price, J.

On December 12, 1997, judgment was entered against this defendant pursuant to his conviction after a jury trial of murder in the second degree (PL 125.25 [1]) and two counts of robbery in the first degree (PL 165.15 [2]). He was sentenced life imprisonment with a mandatory minimum period of twenty-five years as well as two terms of twenty-five years imprisonment with a mandatory minimum period of twelve and one-half years each to run concurrent with the other. The defendant now moves to vacate the judgment pursuant to CPL 440.10 (g), claiming that two recent negative identifications of the defendant relating to the homicide for which he was convicted are of such a character to create a probability that had such evidence been received at the trial, the verdict would have been more favorable to the defendant.

Defendant contends that the District Attorney's disclosure of two negative identifications of him in 2008 by two acknowledged participants in the homicide for which he was convicted constitutes new evidence that could not have been produced at trial even with due diligence. Defendant argues that had such evidence been available at trial, it is likely that the jury would have returned a verdict of not guilty. The People argue that because the defendant was not known to the two acknowledged participants prior to the date of the homicide, their identification [*2]of someone other than the defendant as the fourth participant does not entitle him to a new trial.

Notwithstanding the People's opposition to defendant's motion to vacate the judgment, they consented to a hearing on this issue, which this court conducted. At that hearing, the defendant called one witness, Detective DePaolis. The People called no witnesses. This court finds Detective DePaolis's testimony credible to the extent indicated herein. Upon hearing oral argument from both the defendant and the People, and after reviewing their respective papers submitted in support thereof as well as the photo array admitted in evidence during the hearing, and documents on file with the court, the defendant's motion is denied.

Summary of Trial Testimony

At trial, it was adduced that on August 18, 1995, Oswald Potter was shot and killed during a robbery in a store located at 3581 Lanconia Avenue in Bronx County. Detective George Milian, assigned to the Bronx Homicide Squad, interviewed two witnesses: Gladys Garcia and Antonio Vargas. Ms. Garcia, an employee of the store, informed Detective Milian that a male Hispanic walked into the store, pulled a gun from his waist and fired two shots in the air. He then gave a shopping bag to Ms. Garcia and demanded that she fill it with money. Ms. Garcia complied and while she was placing the money inside the bag, she heard a scuffle, looked up and observed Mr. Potter fighting with a male Black who was holding a revolver. Mr. Potter knocked him to the ground and ran toward the front of the store, followed by the male Hispanic. Ms. Garcia, who lost sight of both men, then heard shots. As the male Black began running toward the front of the store, Ms. Garcia heard more shots. Although the male Black left the area, he returned a short time later and demanded the money from Ms. Garcia, who handed him $500.00.

Detective Milian also interviewed Mr. Vargas, who stated that he and his father had stopped their delivery truck in front of 3581 Laconia Avenue. Mr. Vargas's father went inside the store to obtain an order while Mr. Vargas remained in the truck. Mr. Vargas then observed a grey car pull up and parked in front of him. He observed two men exit the vehicle, one of whom was a male Hispanic with a small goatee, approximately 5'10" tall, 24 years old, slim build, wearing a red, white, and blue fitted hat, with a matching Tommy Hilfiger shirt over shorts. The other man was Black, 25 years old, 5'10" tall, uncombed hair, wearing dark clothing. Mr. Vargas observed both men walk inside the store and then heard a shot, followed by more shots. His father ran out of the store and as Mr. Vargas stepped out of the truck, his father instructed him to get back in. As Mr. Vargas went back inside his truck, he observed both men run into their car and drive away.

On August 19, 1995, Ms. Garcia viewed three photograph books containing photographs of almost three hundred Hispanic males at the 47th Precinct and selected the defendant's photograph, stating to Detective Milian that "this looks like the person that shot Oswald Potter." Subsequently, Mr. Vargas separately viewed those photograph books, also at the 47th Precinct. Although his father was seated next to him as he looked through the photographs, Detective Milian instructed him not to look at the photographs. Mr. Vargas testified that his father never told him which photographs to select or whom to look for, nor did his father assist him in identifying the defendant's photograph. Detective Milian testified that no identification was made at that time. [*3]

On August 22, 1995, Mr. Vargas was present at the 48th Precinct where he again viewed photographs, some of which were identical to those maintained at the 47th Precinct including that of the defendant. This time, Mr. Vargas selected the defendant's photograph from among nearly 500 photographs. When asked why he did not selected the defendant's photograph while at the 47th Precinct, Mr. Vargas replied that he had, but Detective Milian continued giving him other photographs to view. Mr. Vargas explained the confusion as follows:

As I stated during that time unfortunately I wasn't 100% sure. So I wanted- I didn't want to make a- say that I was positive that the person I was pointing out was the person I thought I had seen. So I mentioned it lightly that this could be someone who resembled the person I saw, but I didn't put too much emphasis in saying that this is the person.

That same day, Ms. Garcia was also at the 48th Precinct and after looking through nearly 500 photographs, again selected a photograph of the defendant.

The next day, on August 23, 1995, both Ms. Garcia and Mr. Vargas returned to the 48th Precinct and separately viewed lineups. Indeed, they were kept separate and apart from each another. Ms. Garcia viewed the lineup first followed by Mr. Vargas. Both identified the defendant as the person who walked inside of her store on August 18, 1995, when Oswald Potter was murdered.On December 12, 1997, the defendant was convicted by a jury as noted above. His conviction was based upon the testimony of both eyewitnesses, Ms. Garcia and Mr. Vargas, as well as an alleged informant.

CPL 440 Hearing - Findings of Fact

In early 2005, Detective Michael DePaolis, a member of the New York City Police Department for eighteen years, the last twelve of which as a detective, became involved in the investigation of Oswald Potter's murder (H: 9). During the course of this investigation, he learned of two additional participants in the homicide (H: 25). Detective DePaolis eventually held meetings between an Assistant United States Attorney and these two individuals identified only as "Witness Number One" and "Witness Number Two" along with their counsel (H: 10). Both "Witness Number One" and "Witness Number Two" admitted that they participated in the homicide of Oswald Potter and stated that there were four in total (H: 13, 15). During a subsequently meeting, "Witness Number Two" identified a third person as having been a participant as well. The purpose of both meetings with "Witness Number One" and "Witness Number Two" was to identify the fourth, and last, participant in Oswald Potter's murder (H: 20, 21).

On January 25, 2008, approximately ten years after the defendant was found guilty at trial, Detective DePaolis met with "Witness Number Two", his counsel and an Assistant United States Attorney, and showed the witness a photo array containing the defendant's photograph (H: 9, 10). The photo array was generated from a photo manager machine and contained five other photographs randomly selected as fillers (H: 14). When presented with this photo array, "Witness Number Two" pointed to a photograph of someone other than the defendant and stated, "This man looks familiar." No follow up questions were asked (H: 17).

On March 5, 2008, Detective DePaolis held another meeting, this time with "Witness Number One", his counsel and an Assistant United States Attorney (H: 18, 19). During this meeting, "Witness Number One" was presented with the same photo array as was given to [*4]"Witness Number Two" and identified the same person that "Witness Number Two" did as the fourth participant, describing him as the "flip" — the person who shot Oswald Potter (H: 21, 22).

Conclusions of Law

CPL 440.10 (g) provides:

At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that 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.

Here, it is obvious that the two negative identifications of the defendant by "Witness Number One" and "Witness Number One" constitute new evidence that could not have been produced by the defendant at trial since they did not take place until twelve years later. Moreover, it is undisputed that the negative identifications tend to exonerate the defendant. Because of this, the assigned assistant district attorney promptly disclosed the existence of the negative identifications to defense counsel, consented to a hearing on the issue of whether it warrants a new trial and made Detective Michael DePaolis available to the defendant for the purpose of going forward at the hearing. Accordingly, the sole remaining issue is whether the two negative identifications are "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" (CPL 440.10 [g]). This court concludes that they are not.

While both "Witness Number One" and "Witness Number Two" admitted being present and participating in the robbery that resulted in the homicide, neither of them saw the shooter since its commission and "Witness Number Two" saw him only once before. In fact,"Witness Number Two" was unable to state whether the person he selected from the photo array was the shooter (H: 26). Under these circumstances, this court finds it easily understandable that they were unable to correctly identify the defendant as the fourth participant twelve years after Oswald Potter's murder. An examination of both the defendant's photograph and that which "Witness Number One" and "Witness Number Two" selected indeed reflects similar characteristics, as the District Attorney argues, making their negative identifications even more understandable.

Moreover, as stated above, both Ms. Garcia and Mr. Vargas were present at the store where Oswald Potter was killed, observed the defendant, and identified him from the photo array and the lineup within days of having observed him. They testified at trial and were subjected to vigorous cross-examination and scrutiny. By returning a verdict of guilty, the jury apparently found their testimony credible. While it is certainly possible that a jury presented with the negative identifications could return a verdict of not guilty, CPL 440.10 (g) requires more than a mere possibility; namely that they are "of such character as to create a probability that the trial verdict would be more favorable to the defendant." Based on the strength of the testimony of both Ms. Garcia and Mr. Vargas, this court concludes that the negative identifications produced twelve years after the murder by "Witness Number One" and "Witness Number Two" who [*5]neither knew the defendant before nor have seen him since, are entirely insufficient to create such a probability. Defendant's motion to vacate the judgment pursuant to CPL 440.10 (g) is therefore denied.

This constitutes the decision and order of the court.

Dated:June 24, 2009

E N T E R

________________________________

Richard Lee Price, J.S.C.