People v McCloud

[*1] People v McCloud 2012 NY Slip Op 51520(U) Decided on August 10, 2012 Supreme Court, Queens County Kohm, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2012
Supreme Court, Queens County

The People of the State of New York,

against

Armond McCloud, Defendant.



3707/94



For the Defendant: Armond McCloud, pro-se

Attica Correctional Facility

For the People:Hon. Richard A. Brown

District Attorney - Queens County

125-01 Queens Blvd.

Kew Gardens, NY 11415

Robert C. Kohm, J.

Background

Late in the evening of August 4, 1994, an exchange student from Japan, named Kei Sunada, was returning from work to his residence in the Lefrak City Housing Development. He would never safely reach the refuge of his apartment, as he would be fatally shot in the head by the defendant during a botched robbery on the 4th floor stairwell of his building. Upon entering his building, he was followed into the elevator by the defendant and an individual named Reginald Cameron, while a third individual, Kendo MacDonald, waited in the lobby. During the ensuing robbery attempt that commenced after Mr. Sunada exited from the elevator, a physical altercation developed between the victim and the perpetrators culminating with the defendant discharging his weapon at Mr. Sunada.

For his part, the defendant alleged that the shooting was accidental. In a written statement given to the police, the defendant wrote: "Me and Reggie and Kendo when (sic) up in the building and we seen a Chinese man and we all got . . . of and he ran out the elevator and started to fight back and the gun went off by mistake . . ." During the course of the next 18 years the defendant would claim that this statement, as well as a subsequent statement memorialized on videotape, were untrue, and were illegally obtained by the police because they "tricked" him into confessing. In fact, he would later claim that he was not present at the time of the shooting, but was instead with his girlfriend driving her back to the Bronx.

The defendant proceeded to a jury trial before the Hon. Robert J. Hanophy and was convicted of two counts of Murder in the Second Degree and one count of Criminal Possession of a Weapon in the Second Degree. On April 15, 1996, the defendant was sentenced to concurrent indeterminate prison terms [*2]of from 25 years to life on each of the murder convictions and from 5-15 years on the weapon conviction.[FN1] The defendant's judgement of conviction was affirmed by the Appellate Division (People v McCloud, 247 AD2d 409 (2d Dept. - 1998) on February 2, 1998, and on April 8, 1998, leave to appeal to the Court of Appeals was denied (People v McCloud, 91 NY2d 975 (Titone, J.). As is his right, the defendant has consistently sought judicial relief , having filed four prior CPL §440.10 motions seeking to vacate his conviction; he has also sought writs of error coram nobis on three occasions; and he has petitioned for a writ of habeas corpus in the Federal District Court. All efforts have proven unsuccessful and the defendant remains incarcerated.

Before turning to the current motion now before this Court, the defendant's most prior CPL §440.10 motion, filed on April 2, 2010, must be referenced in order to provide context to this proceeding. That motion was filed by the defendant after the Queens County District Attorney's Office had given their consent for DNA testing of fingernails and fingernail scrapings of the victim which had been collected during the autopsy of Mr. Sunada. The tests were performed by Criminalist Michelle M. Egermann of the Office of the Chief Medical Examiner (hereinafter "OCME") on or about April 1, 2009. In sum and substance, the results, as set forth in her sworn affidavit, indicated that some of the preserved evidence yielded sufficient DNA for PCR and High Sensitivity PCR DNA testing and that they yielded a DNA profile that was the same or consistent with Mr. Sunada's DNA profile. However, no conclusions could be drawn regarding the source of DNA alleles detected in right nail PM 3b, left nail PM 4b, and right nail scraping PM 5 which could not be attributed to Mr. Sunada. And, although human DNA was found on right nail PM 3c and left nail scrapings PM 6, the amount of DNA recovered was insufficient to conduct High Sensitivity PCR DNA testing.

In denying the defendant's motion [FN2], Justice Hanophy rejected the defendant's argument that the results of the DNA testing constituted newly discovered evidence requiring the Court to vacate his conviction, since the defendant's DNA was not found on the victim's body. Justice Hanophy concluded that the DNA test results did not constitute newly discovered evidence because it would most probably have not resulted in a more favorable verdict to the defendant had it been admitted at trial. The Court's reasoning was based upon the following factors: 1) Trial testimony established that scratches on the victim's body were the result of a struggle at the time of the attack, but there was no testimony showing any contact between the victim's fingernails and the defendant's body; if anything, the scenario depicted allowed for the victim's DNA under the defendant's fingernails;[FN3] 2) According to the trial testimony of Detective Herbert, then of the Queens Homicide Squad, the defendant told him that in attempting to defend himself the defendant made a kicking movement which set the gun off. Therefore, there would not have been a period of time where the transference of DNA from the defendant to the victim could have been possible; and 3) Most importantly, the criminalist's findings (see above) indicated that no conclusions concerning the source of the DNA not attributed to the defendant could be made. The DNA evidence was inconclusive and would most probably have not changed the jury's verdict if it had been admitted at trial.

The defendant moved for leave to appeal the denial of his CPL §440.10 motion, but on July 15, 2011, the Appellate Division: Second Department denied the defendant's application for leave to appeal [*3](People v McCloud, Slip. Op. No. 2011-01314 [Dillon, J.]).

The Current Motion

Pursuant to CPL §440.30(1-a), the defendant has moved, pro se, for an order directing the

performance of a forensic DNA "comparison" test. More specifically, the defendant seeks to submit a sample of his own DNA to have it compared to the DNA alleles detected in right nail PM 3b, left nail PM 4b and right nail scrapings PM 5 of Mr. Sunada.

The People have submitted an affirmation in opposition.

The question arises: If as recently as 2009 the "OCME" (as per Criminalist Egermann) had forensically determined that no conclusion could be drawn regarding the source of DNA alleles detected in PM 3b, PM 4b and PM 5 and Justice Hanophy had accepted those findings and incorporated same into his decision denying the defendant's CPL §440.10 motion, a decision implicitly found valid by the Appellate Division when on July 15, 2011 it denied the defendant leave to appeal Justice Hanophy's ruling, why is the defendant now moving for a comparison test when he knows that the subject sample is insufficient to permit comparison?

The answer lies in the negligence of a non-scientist employee of the "OCME," who is employed as Special Counsel, Department of Forensic Biology. Her duties include representing the interests of the "OCME" Department of Forensic Biology, including access to records. She is also the Records Access Officer for the Agency and is responsible for replying to all Freedom of Information requests. What she is not, however, is a scientist, criminalist or an expert in forensic biology.

Nevertheless, in response to a letter from the defendant in which he asked, "Are you and your office saying there is not way possible - no way humanly possible - whether alleles being uploaded in a computer or manually with the naked eye . . . that these unknown alleles cannot yield a consist (sic) profile to someone other than the victim?", Special Counsel incorrectly responded to the defendant, in a letter dated February 6, 2012, as follows: "The DNA alleles detected in right nail PM 3b, left nail PM 4b and right nail scrapings PM 5 are suitable for direct comparison - meaning, if a DNA sample from a suspect is submitted directly to this Office, then it may be possible to compare the individual's known DNA profile to the DNA alleles detected in the right nail PM 3b, left nail PM 4b and right nail scrapings PM 5 of this homicide decedent."

Special Counsel now admits that her reading of the lab report was inaccurate and that the subject alleles are, in fact, not suitable for any comparison.

Submitted by the People in support of their opposition to the defendant's motion is a sworn to affidavit prepared by Kyra McKay, an Assistant Director from the "OCME" Department of Forensic Biology, where she has been employed for 13½ years. Assistant Director McKay reviewed the lab report prepared by Criminalist Egermann relating to the testing of the post mortem nail clippings and nail scrapings of the victim, Kei Sunada. In sum and substance, McKay concurs with the conclusions originally drawn by Egermann, that is, that "the few DNA alleles detected in these nail clippings and scrapings that do not belong to Kei Sunada are not suitable for comparison."[FN4] Furthermore, McKay unequivocally states that what Mairs wrote to the defendant was simply "not accurate."[FN5]

[*4]Conclusions of Law

CPL §440.30(1-a) provides: "Where the defendant's motion requests the performance of a

forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the trial resulting in the judgement, the court shall grant the application for a forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgement, there exists a reasonable probability that the verdict would have been more favorable to the defendant.

As has been set forth above, the DNA samples detected and preserved from the autopsy of Mr. Sunada either match the victim's DNA profile or are not suitable for comparison to a DNA sample submitted by this defendant or anyone else. Therefore, the so-called comparison test sought by the defendant is not forensically possible at this point in time. Moreover, since there was no evidence at trial that there existed a possibility of a transference of DNA from the defendant to the victim during the course of the attempted robbery/murder, and the defendant still maintains that his confession was false, in that he claims that he was not present at the time of the crime, the results of any forensic DNA test comparing the defendant's DNA to the unknown samples would be "inconclusive;" therefore, it is the Court's determination that despite an admission at trial of inconclusive test results, there does not exist a reasonable probability that the verdict would have been more favorable to the defendant.[FN6]

Accordingly, the defendant's motion for a comparison DNA test, pursuant to CPL §440.30(1-a), is denied.

Upon receipt of Ms. Mair's letter, dated June 28, 2012, in which Mair informed the defendant that "the few DNA alleles detected that do not belong to Kei Sunada are not suitable for comparison, and in which she offered her "apologies for the confusion I created in my previous correspondence," the defendant submitted a supplemental motion for an evidentiary hearing. The defendant, understandably upset by the "seeming" change in opinion by the "OCME,"[FN7] cites a conspiracy between the Assistant District Attorney handling this motion and the "OCME," alleging "this recantation by OCME' is without a doubt ADA Ushir Pandit's doing in stepping outside of her advocacy function in compelling "OCME" to recant their correspondence of 2/6/12 in order to defeat defendant's motion for DNA comparison test. And further suppress defendant's innocence. On 2/6/12 " OCME' let a cat out (of) the bag much to the dismay of ADA Pandit and now, again, under strict direction of ADA Pandit to catch and place this cat back into the bag."

Despite the colorful language employed by the defendant, the Court rejects the baseless rantings and accusations hurled at Ms. Pandit, and notes that "the duties of "OCME" are, by law, independent of and not subject to the control of the office of the prosecutor, and that "OCME" is [*5]not a law enforcement agency" (People v Washington, 86 NY2d 189, 192).Being familiar with the prior 440 motion made by the defendant and decided by Justice Hanophy, and also being familiar with the prior lab results obtained by Egermann, it would have been derelict on Ms. Pandit's part as a diligent prosecutor not to have sought the opinion of one of the senior scientists at the Department of Forensic Biology of the "OCME." Once done, it was not necessary to put the cat back into the bag, since, in reality, the cat never escaped.

Accordingly, the defendant's supplemental motion for an evidentiary hearing is denied.

Finally, although the defendant has sought relief pursuant to CPL §440.30(1-a), he has not formally moved to vacate the judgement of conviction pursuant to 440.10. Despite the fact that the defendant appears knowledgeable in motion practice and is quite litigious, he is, in the end, a pro se litigant. Consequently, as a matter of discretion, the Court will construe this application to also be a motion to vacate the underlying judgement of conviction based upon "newly discovered evidence." (CPL §440.10(1-g)

There being no evidence 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 motion is denied.

The foregoing constitutes the Opinion and Decision of the Court.

Order signed herewith.

The clerk shall forward a copy of this Decision and the accompanying Order to the pro se defendant at his place of incarceration and to the District Attorney.

__________________________

Robert Charles Kohm

J.S.C. Footnotes

Footnote 1: Cameron pled guilty to Robbery in the First Degree and received an indeterminate sentence of 4-12 years. MacDonald was never charged with this crime.

Footnote 2: Issues discussed in Justice Hanophy's decision, dated August 10, 2010, having nothing to do with DNA testing will not be recounted herein.

Footnote 3: A DNA comparison test was never performed.

Footnote 4: In scientific language that need not be repeated in the body of this Opinion, McKay cogently and purposefully gives the basis for her conclusions.

Footnote 5: The Court's reliance upon the McKay affidavit does not violate any of the defendant's Crawford (541 US 36 [2004]) rights, since Crawford applies to "testimonial hearsay at trial" (see People v Leon, 10 NY3d 122; People v Brink, 31 AD3d 1139, lv to app den 7 NY3d 865) and is inapplicable in this situation.

Footnote 6: In light of the Court's determination not to grant a comparison DNA test, the defendant's further request for the appointment of counsel and a forensic expert is denied as moot.

Footnote 7: The Court characterizes the developments as a "seeming" change in opinion, since there never was a change in opinion from the results of the original Egermann lab report. Special Counsel, being unqualified, misread the report's findings and unfortunately imparted errors of fact to the defendant.