People v Bryant

[*1] People v Bryant 2009 NY Slip Op 51986(U) [25 Misc 3d 1206(A)] Decided on September 24, 2009 Supreme Court, Bronx County Gross, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 24, 2009
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

William Bryant, Defendant.



3520/96

Michael A. Gross, J.

Defendant was convicted of Murder in the Second Degree following a jury trial, and on December 17, 1998, was sentenced to an indeterminate term of imprisonment of twenty- five years to life. In a motion, dated November 20, 2007, defendant moved pursuant to C.P.L. § 440.10 to vacate his judgment of conviction asserting that: (1) newly discovered evidence, based on recent DNA testing of semen and fingernail scrapings obtained from the victim excluded defendant as the donor; (2) he was denied his constitutional right to effective assistance of counsel, based on trial counsel's failure to test defendant's DNA before trial; and (3) defendant was actually innocent.

On June 16, 2008, defendant filed a supplemental motion in further support of his claim of newly discovered evidence. Specifically, defendant submitted a notarized statement from Shirley Smallwood, a key prosecution witness at trial, who now purportedly recanted her testimony. At trial, Ms. Smallwood testified that she observed defendant walk off with the victim shortly before she was killed. In her affidavit, Ms. Smallwood stated that it was not defendant, but another man, who left with the victim. As such, defendant requested that his conviction be vacated or, alternatively, that this Court grant a hearing.

In an affirmation in opposition, the People represented that Ms. Smallwood had been interviewed by John Wall, a Detective Investigator for the Bronx District Attorney's Office. During that interview Ms. Smallwood stated that her earlier affirmation recanting her trial testimony was false, and that her trial and Grand Jury testimony were true and accurate. Furthermore, Ms. Smallwood stated that she signed the affidavit because she believed that by signing it, she would be left alone by the defense team. The People opposed defendant's motion to set aside the judgment of conviction but consented to a hearing on the recantation issue presented by Ms. Smallwood's affidavit and statements made to Detective Wall.In a decision dated October 10, 2008, this Court granted a hearing with respect to the issue of the reliability of Smallwood's purported recantation.

DNA Testing Before Trial[*2]

The standard DNA test employed for semen on the vaginal and anal swabs taken from the victim by the Office of the Chief Medical Examiner ("OCME") at the time of defendant's trial was the HLA-DQAlpha method. Dr. Wick testified at trial she was unable to determine if there was more than one donor of the DNA material recovered from the victim. No matching test was performed at the time of the trial to determine the source of the semen. Dr. Wick testified that although such a test was available, it had to be "perfected." The People never requested a court order to compel defendant to provide an exemplar of his DNA in order to perform a matching test with the DNA recovered from the victim. Independently, defendant chose not to have his DNA sample examined as a trial tactic. Similarly, defendant was aware that samples of the victim's fingernail scrapings were collected. Defendant chose not to seek DNA testing of those scrapings either.

Trial Evidence

On June 5, 1995, Darlene Kemp, the decedent, was stabbed 39 times throughout her body. The evidence at trial showed Ms. Kemp, Dawn Reiff, and Shirley Smallwood were prostitutes working in the vicinity of Boston Road in the Bronx. Ms. Reiff testified that on the day of the incident defendant approached her first and asked for a "date," but she declined. Ms. Reiff stated that she knew defendant from the neighborhood and had seen him approximately once a week. Ms. Smallwood testified that she observed defendant talking to Ms. Kemp while she was waiting for a "date." Ms. Smallwood stated that she met defendant approximately fifteen times in the past and had had sexual relations with him. Smallwood testified that she warned Kemp to stay away from defendant; however, Kemp left with defendant and walked towards the school park at P.S. 111.

Donnell Barrett testified that on June 5, 1995, he was sitting on a bench inside the P.S.111 schoolyard near a wooded area. He testified that he saw somebody in the wooded area having sexual relations, and then heard a woman say "Stop Stanley, why are you doing that?" He then heard the woman cry out "Why are you stabbing me" or "Stop stabbing me." Barrett testified that he walked towards the voice and observed defendant running with blood on his shirt and a knife in his hand. Barrett stated that the two faced each other for four to five seconds before defendant ran through a hole in the fence. Barrett further testified that he saw decedent lying nude in the schoolyard, the victim of a stabbing. Barrett stated that he did not know defendant's name but had seen him between fifty and one hundred times in the neighborhood since 1970. However, Barrett never told the police that he knew defendant because they "didn't ask."

Defendant testified in his own defense that he did not kill Kemp. He claimed that he was not in the area where decedent was killed on June 5, 1995, and that he did not frequent the area or solicit prostitutes. Defendant denied spending any time with Barrett or ever seeing him in the area. He denied knowing decedent or Reiff. Defendant acknowledged knowing Smallwood, but stated he never dated her, solicited her, or spent any time with her. As a result of defendant's testimony, the prosecutor was permitted to ask defendant about a previous inadmissible incident where defendant allegedly held a knife to Smallwood's throat. [*3]Defendant acknowledged the accusation but denied the incident occurred.

The decedent's autopsy showed that she sustained 39 stab and incised wounds to her head, neck, body, arms and hand.

Post-Conviction Application for DNA Testing

The Bronx District Attorney's Office consented to defendant's request for DNA testing of the vaginal and anal swabs, and fingernail scrapings recovered from decedent. On January 4, 2007, this Court ordered DNA testing to be conducted by OCME. In May 2007, defendant and the Bronx District Attorney's Office agreed to split the forensic evidence to facilitate independent testing by Labcorp, an independent accredited laboratory. Both Labcorp and OCME completed their testing and conclusively excluded defendant as a source of the semen. Labcorp was able to obtain full male profiles from the semen obtained from the vaginal and anal swabs. Labcorp conclusively excluded defendant as the source of the DNA in the fingernail scrapings, but was unable to determine the identity of the male DNA in the scrapings. OCME obtained a complete male profile only from the anal swab. OCME did not locate sufficient DNA on the vaginal swab or fingernail scrapings to make a profile determination. However, the profile obtained by OCME was consistent with the male profiles Labcorp obtained from the anal and vaginal swabs.

The Recantation Hearing

On December 10, 2008, a hearing was held to determine the reliability of Shirley Smallwood's purported recantation. Defendant called two witnesses: Willard Brown, a private investigator for the defense, and Shirley Smallwood. The People did not call any witnesses.

1. Willard Brown

Willard Brown was a private investigator working on defendant's case. On April 29, 2008, Brown went to visit Smallwood at a correctional facility in New Jersey to discuss defendant's case. Brown told Smallwood about the Innocence Project, including a case where a man was exonerated of murder based on DNA evidence. Brown testified that he told Smallwood that defendant received a life sentence. Brown then showed Smallwood a police report which included statements she gave police, as well as the DNA report in this case. Smallwood asked what the results of the DNA tests were and Brown replied that defendant's DNA did not match the results. Smallwood stated that she did not think defendant did it because he could not hurt anyone. Brown asked Smallwood who she thought committed the murder, and she mentioned a man who had attacked Kemp a few weeks prior to the murder and also tried to take her into the woods. Furthermore, Smallwood told Brown that she did not see defendant walk off with Kemp the night she was murdered.

Brown testified that he did not tell Smallwood that defendant's father had died. Furthermore, Smallwood did not ask about the trial prosecutor nor did he tell her that she moved on to bigger and better things. Brown also stated that Smallwood did not ask about Detective Wall, the detective who was assigned to the case, and he did not tell her that he retired. [*4]

Brown took two pages of notes to memorialize Smallwood's statement. While Smallwood reviewed the notes, Brown observed her looking down at the paper and her eyes moving back and forth. Brown did not read the statement to her, and never asked her what level of education she completed. Brown made several mistakes on the document by switching Smallwood and Kemp's names. He had Smallwood place her initials in the margin where he made the corrections. Subsequently, Smallwood signed Brown's notes.

Brown testified that Smallwood appeared upset in the beginning of the meeting but never told him that she had a headache, or asked him to leave or attempted to end the interview. On the contrary, Brown stated Smallwood was talkative and eventually relaxed. At the conclusion of the interview, Brown explained that he would review his notes and return with attorneys because this "was probably going to have something to do with the court."

In May 2008, Brown went to visit Smallwood again at the correctional facility with Barbara Zolot, counsel for defendant. Brown stated that Smallwood was happy to see him, and that the meeting lasted approximately two hours. Brown could not remember the specific questions that Zolot asked Smallwood, but recalled that Smallwood maintained that she did not see defendant walk off with Kemp the night of the murder. Zolot reviewed Smallwood's trial testimony with her, specifically her identification of defendant. When asked to explain her testimony, Smallwood stated that she was not referring to defendant, but meant another individual who had previously attempted to take her into the woods at knifepoint. Furthermore, when Zolot asked her to explain the inconsistency, Smallwood became frustrated and stated she was confused at trial. Brown testified that Zolot asked Smallwood if she would sign a "more formal statement" to which Smallwood agreed. In addition, Smallwood was told there was a possibility that she would be testifying in court as well.

Brown went to visit Smallwood a third time for approximately 45 minutes. Brown testified that Smallwood was once again "friendly, open and engaging." He brought an affidavit for Smallwood to sign, and stated that he did not threaten or make any promises to Smallwood. He gave the affidavit to Smallwood to review. Brown did not ask her if she knew how to read, and Smallwood never told him she was illiterate. Brown stated that a notary was not available at the time of the meeting, so he left the original affidavit with Smallwood and told her to arrange to have it notarized. Brown did not explain what a notary was, and assumed that she understood. Brown stated that Zolot had previously explained that an affidavit was a notarized statement that would be filed with the court, and that she would be swearing to the facts in the document.

In October 2008, Brown and Zolot attempted to schedule an appointment to meet with Smallwood again. However, Smallwood refused the meeting.

2. Shirley Smallwood

Direct Examination

Smallwood testified that Willard Brown, a private investigator, came to visit her on [*5]three occasions while she was serving a sentence for a drug sale to discuss defendant's case. When Smallwood met Brown during the first meeting, she thought he was an attorney because she had been told she had an "attorney visit." When she stated that she was not expecting an attorney because was serving a sentence and did not want to meet him, she was informed that she could not refuse an attorney visit. When Brown handed her a business card, she realized he was an investigator. Smallwood testified that during the meeting she was aggravated and did not feel well because her head hurt. Brown told Smallwood that defendant was serving a life sentence for Darlene Kemp's murder and that defendant's father had died. Furthermore, Brown told her that some DNA testing was done that proved defendant was innocent and "they were just trying to put stuff on defendant."

Smallwood testified that they discussed what happened the night of Kemp's murder. Smallwood admitted that she told Brown, during the first meeting, that it was not defendant whom she observed walk off with Kemp before the murder. However, Smallwood adamantly testified that what she told Brown was not true. Smallwood stated that she told Brown what he wanted to hear so that he would leave. She testified, "I wanted him to get away from me, because I have my own problems...my head hurt... I wanted it all to be over." Smallwood expressly and repeatedly stated that her trial testimony was indeed the truth. Smallwood admitted that she never asked Brown to leave but did tell him that she had a headache, to which he replied, "just a little longer." Brown took notes during this first meeting which Smallwood looked at but did not read. Smallwood testified that she signed the notes because she wanted Brown to leave. Brown did not threaten her or make any promises in order for her to sign the notes. On the back of his business card, Brown wrote the name and phone number of an attorney named Raymond Brown, and told Smallwood to call him if she had visitors. Finally, Brown told her he would return with a "lady."

Smallwood testified that Brown came to see her a second time with defense attorney Barbara Zolot. Smallwood stated that she could not refuse to attend. They discussed what Smallwood told Brown at the first meeting and her trial testimony. While discussing her prior testimony, Smallwood stated Zolot was frustrated because she did not hear what she wanted and was "badgering" her. Brown told Zolot to "take it easy and that she would come around." Smallwood, however, did not ask Brown and Zolot to leave at any time or call for the guards.

Smallwood testified that she told Zolot at the second meeting that defendant was not the person who walked off with Kemp, but instead was the person who had taken Smallwood into the woods earlier. Furthermore, she told Zolot that she was relieved when she got arrested because she wanted to be off the streets because she was scared of the man who took her into the woods. At the hearing, Smallwood maintained that it was defendant who walked away with Kemp, that her trial testimony to that effect was accurate and that she lied to Zolot and Brown "to get [them] away from her." When asked about the differing versions, Smallwood explained on direct examination that she was not confused at trial and that any confusion or inconsistency was over police reports. [*6]

Smallwood testified that Brown came to see her a third time, and she did not refuse to attend. Brown bought a written statement stating that it was not defendant whom she observed walk off with Kemp before her murder. He left the statement for Smallwood to sign because a notary was unavailable. Smallwood testified that Brown did not threaten her or make any promises to her. Some time later, Ms. Trent, a prison official, brought the affidavit to Smallwood to sign. Smallwood testified that she did not read the affidavit before signing it and did not understand what the affidavit meant. Furthermore, she did not know how the notary stamp appeared on the affidavit because no notary was present when she signed it. Smallwood never told Ms. Trent that she did not want to sign the affidavit. She only told her "cubies" that an investigator had been harassing her. On direct examination, Smallwood explained that the written statement was inaccurate and that she signed the document because she wanted Brown to go away. Detective Investigator John Wall from the Bronx District Attorney's Office also went to visit Smallwood while she was incarcerated. Smallwood testified that she refused to see him the first time he came to visit her because she had a headache. Smallwood did speak with him on a second visit which took place at the New Jersey State Attorney General's Office. Smallwood testified that she met with Detective Investigator Wall, Assistant District Attorney Nancy Borko, the trial prosecutor, and Beryl Wright, Ms. Borko's assistant. Smallwood explained that she signed the affidavit so she could be left alone by the defense, and because Brown told her that Ms. Borko had "moved on to bigger and better things."

Cross-examination of Shirley Smallwood

Smallwood testified that during her first meeting with Brown she did not ask about the trial prosecutor or Detective Wall. Brown told her that the trial prosecutor had "moved on to bigger and better things," Detective Wall had retired, and further DNA testing did not match defendant.

Smallwood stated that when Detective Wall went to visit her, she did not feel well and refused to continue to meet with him. Smallwood agreed to meet with the trial prosecutor. When Smallwood met with the trial prosecutor and Detective Wall at the New Jersey State Attorney General's Office, she stated that she was happy to see them. Smallwood apologized and immediately told the trial prosecutor, "I signed the paper to get them away from me... because I was going through my own stuff at the time." Smallwood testified that Brown told her that he was going to try and make sure that she did not have to go to court, and that was one of the reasons she signed the affidavit. Furthermore, Smallwood stated that she would have signed anything to make them go away. She stated that she reviewed her Grand Jury testimony and trial testimony, and both were true.

Smallwood met with the trial prosecutor and Detective Wall a second time. They explained to Smallwood that she would be required to testify in court as a defense witness. They did not discuss perjury, and no promises were made to Smallwood. Smallwood discussed another incident with Kemp that occurred approximately two weeks before the murder; however, Smallwood explained that incident had nothing to do with defendant. [*7]Smallwood stated that she knew defendant before Kemp's murder, and had several incidents with him, one of which included a visit to defendant's father's house. Smallwood concluded by reiterating her testimony that on the night of the murder, she saw defendant walk away with Kemp.

Conclusions of Law

I. Post-conviction DNA results

A. Newly Discovered Evidence Claim

Defendant argues that the post-conviction DNA results excluding defendant constitute newly discovered evidence. Defendant argues that this new evidence could not have been produced by defendant with due diligence, and is of such a character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to defendant.

Defendant argues that although trial counsel chose not to have defendant's DNA compared to the known sample, it is irrelevant because the DNA results now obtained by Labcorp and OCME may be classified as newly discovered evidence due to the advances in DNA methodology. Defendant claims that at the time of the trial, the testing method could not have produced a full male profile, could not have eliminated the possibility of more than one donor, and could not have obtained even partial profiles from the fingernail scrapings.

The People argue that defendant's motion should be denied because the DNA results are not newly discovered evidence and would not create a likelihood of a more favorable verdict. Furthermore, trial counsel may not be said to have acted ineffectively because the decision to forego the testing of defendant's DNA and comparison to the known sample were based on a sound trial strategy.

The People maintain that defendant's characterization of the DNA results as newly discovered evidence is flawed. The People claim that the presence of semen found on the vaginal and anal swabs and a sample of fingernail scrapings recovered from the victim were fully known to defendant as is evident from his own statement. Furthermore, the use of such DNA evidence was fully explored by defendant with his trial counsel in advance of and during trial at which time defendant declined to provide an exemplar of his own DNA in order to perform a matching test with the DNA recovered from the victim. Finally, the People argue that the recent DNA analysis performed by OCME on the vaginal and anal swabs was the standard DNA test employed at the time of defendant's trial.[FN1]Under C.P.L. § 440.10(1)(g), a court may vacate a judgment where "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." The power to [*8]vacate a judgment upon the ground of newly discovered evidence rests within the sound discretion of the trial court (People v. Crimmins, 38 NY2d 407 [1975]).

In People v. Salemi, 309 NY 208, 216 (1955), the Court of Appeals set forth six requirements which must be met in order for a defendant to be entitled to a new trial based on a claim of newly discovered evidence: the evidence must be such that it (1) would probably change the result if a new trial were granted; (2) must have been discovered since the trial; (3) could have not been discovered before the trial by the exercise of due diligence; (4) must be material to the issue; (5) must not be cumulative; and (6) must not be merely impeachment evidence (see also People v. Reyes, 255 AD2d 261 [1st Dept. 1998]). As noted, the defendant must establish each of the six requirements set forth in Salemi (C.P.L. §440.30[6]; People v. Grotto, 241 AD2d 785 [3d Dept. 1997]).

Defendant's claim that the post-conviction DNA results excluding defendant are newly discovered evidence fails to meet the criteria for a new trial under Salemi. First, defendant has failed to establish that this DNA evidence could not have been obtained before trial by the exercise of due diligence (see People v. Kellar 199 AD2d 703 [3rd Dept. 1993] [court found DNA testing not "newly discovered evidence" where possibility of testing known to and explored by defendant with counsel before trial]).

Defendant relies on State v. Peterson, 364 N.J.Super. 387 (A.D. 2003), to support the claim that post-conviction DNA results constitute evidence discovered since trial, and had the results been received at trial, there is a probability that the verdict would have been more favorable to the defendant. Relying on Peterson, defendant argues that he is entitled to a new trial because the DNA results obtained in his case similarly excluded him as the contributor of the semen found in the deceased and the genetic material in the fingernail scrapings, while implicating a single unknown male contributor. The defendant further argues that the genetic material contained in the fingernail scrapings excludes him but not the unknown semen donor. Defendant claims these new DNA results refute the reliability of the identification testimony of Reiff, Smallwood and Barrett by supporting the conclusion that the deceased had an intimate and violent encounter with a man other than defendant.

Defendant's reliance on Peterson is misplaced. In Peterson, the People's evidence included testimony from a forensic scientist that seven strands of hair found at the crime scene had the same characteristics as defendant's hair. However, DNA testing performed after trial showed that defendant was not the actual source of the hair. By contrast, in defendant's trial, the People never offered any forensic evidence claimed to be derived from defendant. Therefore, the current DNA results refute nothing that was presented to the jury.The DNA evidence offered by defendant cannot be characterized as newly discovered evidence since defendant had actual knowledge of the availability of this evidence before trial. The presence of sperm and the possibility of DNA testing was, by defendant's own statements, fully known to him, and its use explored by him with his trial counsel. When defendant insisted on having his DNA tested for comparison, trial counsel explained his trial strategy of misidentification was their strongest defense and discrediting the People's [*9]witnesses should be their sole focus. Had defendant submitted to a DNA comparison and the results indicated a match, it would have been very difficult for trial counsel to argue misidentification. After much discussion with trial counsel on the issue, defendant ultimately agreed to forego a DNA comparison test in favor of trial counsel's reasonable trial strategy.

In any event, it is unlikely that, even if defendant were to receive a new trial, he would receive a favorable verdict. To warrant a new trial, newly discovered evidence "must be such as to probably, not merely possibly, change the result if a retrial is had" (see People v. Penoyer, 135 AD2d 42 [3d Dept. 1988]). In view of the facts adduced at trial, it is improbable that defendant would be acquitted if he received a new trial.

The eyewitness testimony presented at defendant's trial established defendant as the perpetrator of the crime. Evidence showed that the victim was a prostitute who was working the night she was killed. Smallwood testified that she observed defendant talking to the victim while she was waiting for a "date" around midnight. Smallwood further testified that she warned Kemp to stay away from defendant. However, despite this warning, Kemp left with defendant and walked towards the school park at P.S. 111. Smallwood stated that she knew defendant and had had sexual relations with him in the past. Smallwood never saw Kemp again.

Donnell Barrett testified that at around midnight or 1:00 a.m., he was sitting on a bench inside the P.S.111 schoolyard near a wooded area. He testified that he saw somebody in the wooded area having sex, and then heard a woman say, "Stop Stanley, why are you doing that?" He heard the woman cry out, "Why are you stabbing me" or "Stop stabbing me." Barrett testified that he walked towards the voice and observed defendant running with blood on his shirt and a knife in his hand. Barrett stated that he faced defendant for four or five seconds before defendant ran away through a hole in the fence. Barrett further testified that he saw the victim lying in the schoolyard, nude and injured. Barrett stated that he did not know defendant's name but had seen him between fifty and one hundred times since 1970 in the neighborhood.

The evidence against defendant was overwhelming. The fact that another person's semen was found inside the victim, when the evidence clearly established that the victim was working as a prostitute, does not establish or even suggest that someone other than defendant was the perpetrator of the murder.

In sum, there is only a possibility, not a probability, that defendant would receive a favorable verdict if a new trial was granted. Furthermore, this DNA evidence cannot be characterized as newly discovered evidence since defendant had actual knowledge of the availability of this evidence before trial and knowingly chose to forego this possible defense. Accordingly, since defendant has failed to meet the requirements under Salemi to warrant a new trial, defendant's motion to vacate his conviction is denied.

B. Ineffective Assistance of Counsel Claim

Defendant claims that it was his decision and his alone whether to seek DNA comparison testing of the recovered semen; and that trial counsel was ineffective for refusing [*10]to honor his request. Defendant further argues that even if the decision were deemed to be within trial counsel's control, it was an unreasonable strategy to refuse to pursue DNA comparison testing since defendant insisted it would exculpate him.

The People respond that, after much discussion between defendant and counsel, defendant ultimately agreed to forego DNA testing. Trial counsel explained that his trial strategy of misidentification was the strongest defense and discrediting the People's witnesses should be their sole focus. The People claim that since defendant acceded to trial counsel's reasonable trial strategy, it cannot be said that there was ineffective assistance of counsel. Furthermore, the People argue there is no authority to support defendant's argument that the decision to test one's own DNA is a "fundamental right."[FN2]

In order to prevail on a claim of ineffective assistance of counsel, a defendant must overcome the strong presumption that counsel was effective and show that counsel failed to provide meaningful representation (Strickland v. Washington, 466 U.S. 668 [1984]; People v. Hobot, 84 NY2d 1021 [1995]; People v. Flores, 84 NY2d 184 [1994]). To rebut this presumption, a defendant must prove that the attorney's assistance to the client lacked "reasonable competence," and was so inadequate as to amount to ineffectiveness (People v. Satterfield, 66 NY2d 796, 799 [1985]). Moreover, a defendant must prove that the attorney's incompetence resulted in actual prejudice to the defendant (see People v. Cuesta, 177 AD2d 639 [2d Dept. 1991]; People v. Sullivan, 153 AD2d 223 [2d Dept. 1990]).Defendant's disagreement with counsel's trial strategy and tactics is insufficient to meet the burden of establishing ineffective assistance (see Flores, 84 NY2d at 187; People v. Soto, 245 AD2d 398 [2d Dept. 1997]; People v. Thomas, 244 AD2d 271 [1st Dept. 1997]; People v. Benjamin, 151 AD2d 685 [2d Dept. 1989]). In reviewing a claim of ineffectiveness, a court must "avoid both confusing the ineffectiveness with mere losing tactics and according undue significance to retrospective analysis" (People v. Baldi, 54 NY2d 137,146-47 [1980]). A defendant must demonstrate the absence of strategic or other legitimate explanation for counsel's actions (People v. Rivera, 71 NY2d 705 [1988]; People v. Garcia, 187 AD2d 868 [3d Dept. 1992]). Absent such a showing, counsel will be presumed to have acted competently and professionally(Rivera, 71 NY2d at 709). "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (Baldi, 54 NY2d at 147).Here, viewing the evidence and circumstances of this case in totality, counsel provided defendant with meaningful representation, which did not fall outside the "wide range of professionally competent assistance" (see Strickland v. Washington, 466 U.S. 668, 690 [1984]; Rivera, 71 NY2d at 709; People v. Terwilliger, 255 AD2d 762 [3d Dept. 1998]; People v. Mejias, 178 AD2d 249 [2d Dept. 2000]; People v. Kieser, 172 AD2d 626 [1st Dept. 1991]). A review of the [*11]trial record in this case establishes that counsel zealously and competently represented defendant throughout the trial proceedings. Counsel showed complete familiarity with the facts of the case and the relevant principles of evidentiary, substantive and procedural law (see People v. Bennett, 29 NY2d 462 [1972]; People v. Rodriguez, 94 AD2d 805 [2d Dept.1983]). At trial, counsel delivered cogent and comprehensive opening and closing statements, made appropriate objections and motions, and vigorously cross-examined the People's witnesses, highlighting the inconsistent and unusual aspects of their testimony. He also presented a well-reasoned defense case. In addition to presenting defendant as a witness on his own behalf, counsel put forth a rigorous reasonable doubt defense. He focused on Barrett's criminal record and overall incredibility as a witness. Counsel argued there was no direct evidence identifying the killer. Specifically, counsel told the jury that OCME did not perform "very specific, very certain, very accurate tests that would help you ...determine the identity of the person who killed Darlene Kemp." Trial counsel highlighted to the jury that, although OCME could have tested the forensic evidence to determine the identity of the semen donor or exclude a certain individual, it never performed such test. Therefore, defendant's claim of inadequate representation is belied by the trial record, which clearly and conclusively demonstrates counsel's effectiveness.

C. Actual Innocence Claim

For the reasons set forth above at pages 17-18 and below at pages 22-32, the Court concludes that defendant has failed to demonstrate that he was actually innocent of Kemp's murder. Defendant's guilt was clearly established at trial to the jury's satisfaction beyond a reasonable doubt, a finding affirmed by the Appellate Division. Nothing in the DNA results raises doubt about defendant's guilt since Kemp worked as a prostitute and there is simply no basis for concluding that the donor of semen found inside her— or the scrapings from her nails— were left by the killer.

II. Recantation of Smallwood: Newly Discovered Evidence Claim

Defendant also argues that the recent recantation of Smallwood constitutes newly discovered evidence and is reliable. Defendant further argues, the recantation considered cumulatively with the DNA evidence entitles defendant to a new trial.

Recantation testimony has historically been held to be inherently unreliable and found to constitute some of the weakest forms of newly discovered evidence (see People v. Shilitano, 218 NY 161 [1916]; People v. Cintron, 306 AD2d 151 [1st Dept. 2003]). Recantation in and of itself does not necessarily require the court to order a new trial (Shilitano, 218 NY at 170). The decision whether to grant a new trial rests in the discretion of the trial court, which must consider all the circumstances of the case. Furthermore, careful scrutiny of recanting testimony is the norm (see Sanders v. Sullivan, 863 F.2d 218, 225 [2nd Cir. 1988]).

This Court has presided over an evidentiary hearing to assist in determining the credibility of Smallwood's recantation. In evaluating recantation evidence, the Court must first judge the credibility of the witness' recantation and then assess its possible impact on [*12]a new jury. In People v Shilitano, 218 NY 161 (1916), the Court of Appeals characterized recantation testimony as "unreliable." The Court also enumerated the factors that must be analyzed to determine if the recantation evidence is credible. Consideration of recantation evidence involves the following factors: (1) the inherent believability of the substance 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; and (6) the relationship between the witness and defendant as related to a motive to lie.

For the reasons set forth below, the Court finds that Smallwood's recantation, which was almost immediately repudiated, is an insufficient basis to warrant a new trial since it would almost certainly not produce a more favorable outcome. Initially, it must be noted that recantation must be looked upon with the "utmost suspicion" (Sanders v. Sullivan, 863 F.2d 218 [2nd Cir. 1988]). Further, this Court's research has not disclosed a single instance in which a repudiated recantation was the sole - - or even a contributing factor - - in the granting of a new trial on a claim of newly discovered evidence.

1. The inherent believability of the substance of the recanting testimony, and 2. the witness's demeanor at trial and at the evidentiary hearing.

It is undisputed that Smallwood did indeed tell Brown in an interview that it was not defendant whom she observed walk off with Kemp immediately before Kemp was murdered. Furthermore, it is also uncontradicted that Smallwood signed an affidavit,[FN3] recanting her trial testimony. However, almost immediately after recanting her trial testimony, Smallwood repudiated the recantation when she met with Detective Wall and the trial prosecutor.

Defendant claims that Smallwood's hearing testimony in which she claimed that she recanted her trial testimony solely because she had her own problems and wanted the defense to get away from her was "preposterous" and should be flatly rejected by this Court. Brown testified that Smallwood was friendly, open, and engaging when he met with her, and that Smallwood never asked him to leave or not to bother her. Defendant argues that the repudiation of the recantation is unreliable because it was not done at the earliest opportunity during a meeting with Detective Wall. Further, defendant argues that Smallwood's repudiation of the recantation was a product of her relationship with the District Attorney's Office, and accordingly, was inherently untrustworthy.

The People argue that it is Smallwood's recantation which should be rejected as inherently unbelievable and that the Court should reject defendant's contentions. The People [*13]argue that Smallwood's hearing and trial testimony were given under oath in a court of law. Smallwood's trial testimony was confirmed and corroborated by the trial testimony of both Donnell Barrett and Dawn Reiff.

The People maintain that Smallwood was forthright at the hearing and the Court should credit Smallwood's hearing testimony in which she provided a detailed account about each of the meetings with the defense and prosecution, including the circumstances which led to each meeting and the substance of their conversations. The People argue that the defense would not leave Smallwood alone until she provided statements favorable to the defense. At the hearing, Smallwood testified about the second meeting when counsel was "badgering" her, and appeared frustrated when she did not hear "certain stuff." Furthermore, Brown corroborated Smallwood's testimony about her interaction with counsel when he stated that counsel continuously pressed Smallwood for an explanation about the discrepancy between her trial testimony and the affidavit recanting her the identification of defendant, Smallwood appeared frustrated. The People claim that because Smallwood did not want to be bothered, she signed the document placed in front of her without reading it.

This Court listened closely to Smallwood and Brown's hearing testimony and observed their demeanor during the hearing.[FN4] Based on its observations, the Court credits Smallwood's hearing testimony in its entirety. Smallwood credibly and consistently testified that her Grand Jury and trial testimony were, indeed, truthful and that her recantation was false. The Court further finds that the substance of Smallwood's recantation was unbelievable. Moreover, her testimony regarding the reasons she gave for the repudiation of her recantation was also credible. At the hearing, Smallwood insistently testified that what she told Brown at their meeting was not true. Smallwood stated that she told Brown what he wanted to hear so that he would leave her alone. Smallwood acknowledged that she never told the investigator or defense to leave, and that she agreed to meet with them. Smallwood stated that no promises were made to her by the defense and that she was not threatened to sign Brown's two page written notes or the affidavit. She stated that she just signed the document without reading it to end the meeting. Smallwood believed that both Brown and Zolot only wanted to hear certain things about defendant and that when such information was not provided, Zolot became frustrated and "badger[ed]" her. Furthermore, when she told Brown she wanted to end one of the meetings because her head was hurting, Brown told her "just a little more longer" and pressed on with the interview. Smallwood's frustration was evident in her hearing testimony, as well as her demeanor at the hearing, making it rather difficult to accept Brown's claim that Smallwood was "friendly, open and engaging" during their meetings. She repeatedly and expressly stated that her trial testimony was truthful. Moreover, she was clear and insistent with respect to why she gave the defense a false [*14]recantation. At the hearing, she repeated her trial testimony that she had, in fact, observed defendant walk away with Kemp the night she was killed and that her recantation was false.

Defendant's argument that if Smallwood wanted to she could have refused the meetings with Brown and the defense is unpersuasive. Smallwood testified she could not refuse the meetings unless she was contacted in advance to schedule them. The first time Brown went to see Smallwood, she was told she had an "attorney visit." When Smallwood stated that she was not expecting a visit from an attorney because her case was completed, she was told she had to attend the meeting. It was only when Brown handed her his business card that she realized that he was a private investigator. Further, since Smallwood could not refuse the visit, she met with Brown and Zolot a second time. This point is also evident from the visit from Detective Wall. Smallwood went to meet with Detective Wall during his first visit even though she did not want to because she was not feeling well. It was only after she met with him for a short time that she ended the meeting. Finally, when Zolot contacted Smallwood directly to arrange another meeting, instead of through the correctional facility, Smallwood refused to meet with her.

The People argue the manner in which the recantation was procured casts serious doubt on its truth. The People claim that when Brown went to visit Smallwood, he told her about a New Jersey case where a man was exonerated because of DNA evidence. He told Smallwood that defendant was serving a life sentence and that DNA evidence did not connect defendant in any way. Finally, Brown told her that the trial prosecutor had moved on to "bigger and better things,"and the case detective had retired. The People further argue that Brown failed to tell Smallwood that there were additional witnesses who identified defendant as the perpetrator, that Kemp was not raped and defendant was not charged with rape, and the DNA comparison excluding defendant was of no significance in the case.

All of the above factors, together with the Court's opportunity to listen to Smallwood and Brown's testimony and observe their demeanor during the hearing, lead this Court to conclude that Smallwood's recantation is not believable. Furthermore, the reasons Smallwood gave for the repudiation of her recantation are credible under the circumstances.

Accordingly, this Court credits Smallwood's hearing testimony regarding the truthfulness of her trial testimony and the repudiation of her recantation.

3. The existence of evidence corroborating the trial testimony and 4. the reasons offered for both the trial testimony and the recantation.

Defendant argues that Smallwood lacks credibility because she was confused at the trial and hearing. Furthermore, that during her meetings with Brown and defense she was relaxed and gave voluntary and unprompted statements which support the truthfulness of her recanted statements. Defendant claims that Smallwood gave six different statements regarding whom she saw leave with Kemp and who perpetrated the crime. Defendant relies on several cases to argue that Smallwood's shifting and contradictory statements regarding the identity of the person who murdered Kemp renders her trial testimony unworthy of belief [*15](see People v. Foster, 64 NY2d 1144 [1985], People v. Stewart, 40 NY2d 692 [1976], People v. Reed, 40 NY2d 204 [1976], People v. Ledwon, 153 NY 10 [1897]).

The People maintain that defendant's arguments are without merit since the facts of this case are distinguishable from those cases relied on by defendant, where there was essentially only one witness, filled with "hopeless contradictions" who was found incredible, and there were no other corroborating witnesses or evidence. The People also argue that of the six accounts concerning whom Smallwood saw leave with Kemp, two of them were provided before trial. Furthermore, Smallwood's initial inaccurate descriptions of defendant were given intentionally because she was fearful of defendant.

The Court has reviewed the trial transcript and is in agreement with the People. A careful reading of the testimony during cross examination, in the context of the trial court's order precluding Smallwood from testifying about certain incidents, reflects why Smallwood may have appeared to be confused during some of the questions. Smallwood was interviewed by the police approximately four days after Kemp was killed. During that first interview, Smallwood told the police that she knew Kemp and that she was a "working girl." She did not tell the police that she knew defendant's name or where he lived based on her fear of defendant who had assaulted her just days before. Smallwood told the police that on the night Kemp was killed she left with a man who was a male black, approximately 28 years old, thin sideburns, with a small chip on his front tooth. Smallwood admitted she gave this inaccurate description on purpose because she was scared of defendant.

Smallwood stated she told the police that she was approached by defendant a few days before the murder and was offered $40 for her services. Smallwood refused to go with him because he told her that he had just gotten out of jail. After Smallwood refused to go with defendant, he put a knife to her throat and threatened to kill her. Defendant was later indicted for attempted assault for this incident against Smallwood that occurred four days before Kemp was killed. Furthermore, the attempted assault charge was charged under a single indictment together with this homicide. Prior to jury selection, defendant moved to sever the counts involving the attempted assault against Smallwood. The trial court granted defendant's application. This information was precluded during direct examination of Smallwood; however, Smallwood's attempt to comply with the trial court's direction to avoid any reference to her incident with defendant is likely a factor that contributed significantly to her apparent confusion during some of the intense cross-examination directed at her failure to identify defendant immediately after the homicide.

It is also important to note that during the trial, defendant testified on his own behalf. Defendant acknowledged knowing Smallwood, but claimed that he never dated her, solicited her, or spent any time with her. On cross-examination, the prosecutor was permitted to ask defendant about the previous inadmissible incident where defendant allegedly held a knife to Smallwood's throat. Only then did defendant acknowledge the accusation but denied the incident occurred. If Smallwood been able to testify as to the prior incident with defendant, she would have been able to explain the reasons for her failure to identify defendant [*16]immediately after the homicide.

Smallwood's trial testimony and identification of defendant as the person last seen with Kemp was corroborated in key respects by the trial testimony of Donnell Barrett and Dawn Reiff.[FN5] At the trial, Reiff testified that defendant approached her first and asked her for a "date" which she declined. Reiff stated that she knew defendant from the neighborhood and had seen him approximately once a week. Smallwood did not waver in her testimony that despite warning Kemp not to go with defendant, she observed defendant talking to Kemp before she walked off with defendant towards the school park. Barrett testified that while he was sitting on a bench by the school park, he heard a woman cry out, "Stanley, why are you stabbing me" or "Stop stabbing me." Barrett testified that he walked towards the voice and he observed defendant, whom he knew from the neighborhood for many years, running with blood on his shirt and a knife in his hand. Barrett and defendant faced each other for four to five seconds before defendant ran away through a hole in the fence. Barrett further testified that he saw decedent lying in the schoolyard, nude, and bloody. Barrett stated that while he did not know defendant's name, he had seen him between fifty and one hundred times since 1970 in the neighborhood.

At trial, defendant vigorously argued that Smallwood and Barrett lacked credibility and should not be believed. Smallwood was cross-examined at length regarding the descriptions in her statements as to who left with Kemp the night she was murdered. The jury saw and heard from these witnesses, as well as Reiff and the defendant himself. Courts have held that juries are in the best position to determine issues of credibility (see People v. Castro, 181 AD2d 553 [1st Dept. 1992], People v. Paterson, 155 AD2d 363 [1st Dept. 1989]). Defendant argued on direct appeal that Smallwood's testimony was filled with contradictions and failed to support the jury's verdict. However, the Appellate Division affirmed the defendant's conviction (see People v. Bryant, 280 AD2d 403 [1st Dept. 2001]. Defendant is now arguing once again that Smallwood's testimony should not be credited.

5. The relationship between the witness and defendant as related to a motive to lie.

In examining the relationship between the witness and defendant as related to a motive to lie, there is little dispute. As established at the hearing, Smallwood has had no contact with defendant since his trial in 1998. No facts have been established by either party to show that there was any kind of a relationship between Smallwood and defendant thereby creating a motive to lie.

Nevertheless, in examining all the factors set forth in Shilitano, this Court finds that the recantation alone is not sufficient to change the outcome in a new trial. It is highly unlikely that a new jury would be convinced after Smallwood was impeached with all the [*17]

repudiated recantation. In People v. Fernandez, 58 AD3d 494 (1st Dept. 2009), the court examined the credibility of a recanting witness who essentially recanted his recantation and then recanted all over again, and of a person wounded during the homicidal attack, who first came forward to exculpate defendant 10 years after the crime when relatives of defendant visited him in prison. The hearing court, which saw and heard these witnesses, found them both to be incredible, a finding upheld by the Appellate Division. The court went on to say that "even if these witnesses, and another witness who recanted by affidavit only, were to exculpate defendant at a new trial, and all the other evidence remained the same, the evidence of defendant's guilt would remain overwhelming... " (Fernandez, 58 AD3d at 495).

Similarly, if a new trial were granted, Smallwood's repudiated recantation would be limited to impeachment since Smallwood remains adamant that her trial testimony was, in fact, truthful. Thus, even if there were a new trial, it would virtually certainly produce the same outcome — not one more favorable to defendant.

Conclusion

In sum, in view of the proposed evidence which included post-conviction DNA results and recantation testimony, there is only the slightest possibility, not a probability, that defendant would receive a favorable verdict if a new trial were granted. Accordingly, since defendant has failed to meet the necessary requirements under Salemi to be entitled to a new trial, defendant's motion to set aside the judgment of conviction is denied in all respects.

This is the decision and order of this Court.

DATED: Bronx, New York________________________

September 24, 2009Michael A. Gross, J.S.C. Footnotes

Footnote 1: While there have been marked advances in DNA testing methodology since 1996, DNA matching and comparison were available at the time of defendant's trial.

Footnote 2:Defendant offers — and this Court is aware of — no authority to support the proposition that the decision to test one's own DNA is a "fundamental right."

Footnote 3: The hearing testimony was unclear with respect to when the affidavit was notarized. Brown admitted to leaving the statement with Smallwood so that she could find a notary and then mail it to Ms. Zolot. Smallwood testified that Ms. Trent, an administrator at the correctional facility, later brought the statement to her to sign but no notary was present. On the affidavit, there is a notary seal of Rondell Inman.

Footnote 4: This Court did not preside over defendant's trial in 1998, and as such did not have an opportunity to evaluate Smallwood's demeanor during the trial. This Court, however, has reviewed the entire trial transcript, which included Smallwood's testimony.

Footnote 5: Smallwood's Grand Jury testimony that she observed defendant walk away with Kemp the night she was murdered was also consistent with her trial testimony.