People v Quezada

[*1] People v Quezada 2007 NY Slip Op 51406(U) [16 Misc 3d 1113(A)] Decided on July 10, 2007 Supreme Court, Kings County Gerges, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2007
Supreme Court, Kings County

The People of the State of New York

against

Ruddy Quezada, Defendant



13306/1991



The defense attorney was Joel Dranove, Esq. and the Kings County District Attorney's Office was represented by Ephriam Shaban, Jane Meyer and Marie-Claude Wren.

Abraham G. Gerges, J.

Defendant was convicted by jury verdict of murder in the second degree (PL §125.25[2]) for what was a drive-by shooting of an innocent bystander. On May 4, 1993, defendant was sentenced by this court to a term of imprisonment of twenty-five years to life. His conviction was affirmed by the Appellate Division Second Department (People v Quezada, 218 AD2d 819 [2d Dept 1995]) and leave to appeal to the Court of Appeals was denied (People v Quezada, 87 NY2d 906 [1995]).

Defendant moves pursuant to CPL §440.10(g) to vacate the judgement of conviction on the grounds of newly discovered evidence. He claims that a recantation by the only eyewitness coupled with information and assertions that others actually committed the killing at defendant's behest constitutes newly discovered evidence warranting a new trial.

BACKGROUND

Defendant's conviction rests primarily on the testimony of a single eyewitness. During the evening of October 19, 1991, the eyewitness, Sixto Salcedo was in the company of a friend, John Reyes, also known as John Irving Delacruz, when Reyes became engaged in an argument with defendant who accused them of being informants for the federal Drug Enforcement Agency. During the course of the argument defendant punched Reyes who in turn drew his handgun and fired a passing shot at defendant. Salcedo and Reyes fled.

About thirty minutes later, Salcedo and Reyes were standing in front of a video store on the corner of New Lots and New Jersey Avenues when they saw pass a brown livery cab driven by defendant. Within about ten minutes, at approximately 9 p.m., a black car with darkened headlamps approached the same intersection turning left onto New Lots Avenue. A man leaned out of the passenger window and fired a hail of bullets from what sounded like an automatic weapon. Having crossed the street to go to a bodega, Salcedo and Reyes watched as the man in the black car fired into a group of people where they had been standing. They fled and found out later that a bystander, Jose Rosado, had been killed.

The following day after another incident, where according to Salcedo defendant had fired shots from his apartment when Reyes had gone to visit defendant, both Salcedo and Reyes went to the police and made statements. Both men identified defendant as the drive-by shooter. In his statement Reyes recounted that upon hearing gun shots from the passing car he heard Salcedo yell, "That's Ruddy shooting; Run!". Salcedo stated that he saw defendant lean out of the passenger side window and fire what he believed to be an Uzi and that the he believed that he had been the target of the shooting because Rosado was dressed in a similar fashion to the way [*2]he had been dressed.

Salcedo was the only eyewitness who testified at defendant's trial because Reyes had been murdered a few months earlier. The courtroom was closed for Salcedo's testimony after a hearing demonstrated his exposure as an informant for the DEA and after testimony that members of defendant s family had approached and made veiled threats to Salcedo's mother in the Dominican Republic. He testified that he recognized defendant in the passenger side of the black auto from which emerged the barrel of a gun and the rapid fire of shots into the group of people across the street. He stated that, "It came from the passenger side. It was Ruddy." Salcedo and Reyes immediately fled the scene.

Eight years after defendant's conviction the Kings County District Attorney's Office received a short, unsworn affidavit from Salcedo, who had since been deported to the Dominican Republic, in which he stated that defendant had not been present at the scene of the shooting and that Salcedo had been pressured in to accusing defendant. A second unsworn, but more detailed, affidavit followed a few months later in which Salcedo explained the motive behind framing defendant to be a personal conflict between Reyes and defendant over Reyes' treatment of defendant's female cousin by Reyes and to an effort to relieve pressure from defendant who was accusing both Salcedo and Reyes of being "snitches"in the drug world they all inhabited.

In the second affidavit Salcedo described how after Reyes' murder he had fled to Florida and upon his return nineteen months later was confronted by the detective who had initially taken his statement. Salcedo stated that Detective Buda "arrested" him and his wife and held them "incommunicado" for two days in an airport hotel threatening him with imprisonment if he did not confirm defendant's participation as the shooter in the drive-by killing.

On March 21, 2003, defendant submitted his motion to vacate the judgement of conviction. He included both recanting affidavits and information obtained through federal authorities that defendant had not been the actual trigger man but rather had hired others to commit the murder. Counsel representing defendant as well as the assigned assistant had conversations with members of the Untied States Attorney's Office of the Southern District of New York about a convicted drug gang killer, Freddy Caraballo. The federal authorities had been having informal conversations under a limited grant of immunity with Caraballo who had twice been convicted in state court but was now in federal custody while cooperating with federal authorities. They provided information that Caraballo claimed to have been hired indirectly by defendant as a contract killer but were unsure whether the object of the contract was Rosado or Salcedo.On the basis of the recantation coupled with the information concerning Caraballo this court ordered a hearing.

CPL 440.10 HEARING

Five witnesses testified before this court in the hearing on defendant's motion. They included Aurora Fernandez, Freddy Caraballo, retired New York City police officers Martinez and Buda and the recanting witness Sixto "Salcedo" Perez.[FN1] [*3]

Aurora Fernandez was a women who when in the Dominican Republic was a pastor or missionary. She testified to the authenticity of a video-taped recantation by Salcedo that she recorded in May of 2004.

Wilfredo "Freddy" Caraballo came before this court on July 14, 2004 after extensive discussions and negotiations. As early as 1999, Caraballo, who was serving consecutive twenty-five to life terms of imprisonment, claimed to have knowledge of the killing for which defendant was convicted. Although none of his statements were recorded or taken under oath, he was said to have told federal authorities over a period of several years that he committed the murder of Jose Rosado and in another statement to Detective Martinez that he merely participated in the killing. In each instance he claimed that his involvement stemmed from a contract killing initiated by defendant and was related to a dispute over drug territory.

On April 13, 2004, the federal authorities made Caraballo available for an interview with defense counsel and the prosecutors in this case. Once again under rules that did not permit a recording of the conversation and under circumstances that did not enforce an oath, Caraballo, according to a letter submitted by counsel, admitted that he had been in the passenger seat of the black car and had sprayed bullets from a Tech-9 semi-automatic pistol near the corner of New Lots and New Jersey Avenues killing Jose Rosado. He repeated that he acted indirectly at the behest of defendant. However, when brought before this court to testify at the hearing, Caraballo invoked his Fifth Amendment rights and refused to answer any questions under the advice of counsel. In addition, the ballistics evidence from the scene of the shooting did not support the claims by Caraballo that the weapon he described had been used in the killing.

Retired Detective Mark Martinez testified about an interview he had conducted with Caraballo on February 9, 1999. Martinez had come in contact with Caraballo through past police investigations and after Caraballo's convictions he had been asked by Caraballo to talk with him about various homicides. Caraballo refused to recognize his Miranda rights or to have the interview recorded but spoke with Martinez about a number of killings and wanted the information passed along to federal authorities. Referring to the murder of Jose Rosado, he stated that he "participated in this one" and placed himself in the black car from which the shots were fired. When asked of his opinion of Caraballo, Martinez described him as a liar and not to be trusted.

Sixto Salcedo Perez, who was known during the prosecution of defendant's case simply as Sixto Salcedo, testified that he only identified defendant as the shooter because Reyes told him "that it was Ruddy". While he understood English, Salcedo testified through an interpreter because he felt more comfortable under the circumstances. Salcedo recounted that as he and Reyes ran from the scene of the shooting, Reyes said the shooter was defendant and it was Reyes who asked Salcedo to accompany him to the police the next day. Salcedo said that he "presumed" the shooter was defendant and also stated that because they were told that it was necessary to have more than one identifying witness, he decided to agree with Reyes.

With regard to accusations against Detective Buda that were contained in Salcedo's [*4]second affidavit, Salcedo testified that he had not fled to Florida but rather that he was unaware that the police were looking for him and that he had simply gone to visit family in Miami for a one month period. Upon his return, Buda came to the restaurant where he worked and threatened him with ten years imprisonment if he failed to testify against defendant. He repeated that he had been kept by the detective at the Marriot Hotel at La Guardia Airport until he was taken to an interview at the District Attorney's Office before testifying at defendant's trial.

The two recanting affidavits that Salcedo signed in 2001 were presented to him fully composed by members of defendant's family who came to see him in the Dominican Republic along with a "Christian lady" identified later as Aurora Fernandez. In 2004, he signed another affidavit presented to him in a similar manner and agreed to make the video-taped recantation that Fernandez recorded and authenticated. In each instance Salcedo agreed to sign a document because "[i]t says that somebody has already been make responsible for this crime." He also stated, "If they have never shown me a document of that nature, then my conscience is clear, but they showed me a document saying that another person has admitted to that crime and I cannot live in peace like that. That's why I signed the document." He did, however, insist that, " I was always in doubt. Everything was correct except one thing, one thing that I did not see the gentleman that gentleman's face in the car."

Finally, Salcedo denied that he ever told Reyes that defendant was the shooter. He stated that he identified defendant at trial "because John was not around, and that was the statement that we were we had already given."

Retired Detective Thomas Buda, then of the 75th Precinct Detective Squad, initially interviewed Reyes and Salcedo the day after Jose Rosado was killed but had not testified at defendant's trial. He recounted that Salcedo told him that Reyes, defendant and himself were all involved in the drug trade and conflict had arisen among them over a personal matter between Reyes and defendant, over defendant's allegations that Reyes and Salcedo were informants and

over a general drug rivalry. He told of how Salcedo described seeing defendant first in the livery cab and later in the front passenger seat of a black Cadillac from which defendant fired into the crowd of people.

Buda denied threatening Salcedo with ten years of imprisonment, did not recall ever arresting Salcedo's wife or transporting Salcedo to court and stated that "Mr. Salcedo seemed very sure what he saw and described Mr. Quezada firing those shots."

LEGAL ANALYSIS

Criminal Procedure Law section 440.10(g) permits a court to vacate a judgement of conviction on the grounds of newly discovered evidence when "new evidence has been discovered since the entry of a judgement...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". This power to grant a new trial on the grounds of newly discovered evidence is purely statutory and may be exercised only when the requirements of the statute have been met (People v Salemi, 309 NY 208, 215 [1955] cert. denied, 350 U.S. 950 [1956]; People v Latella, 112 AD2d 321 [2d Dept 1985]). The determination whether the statutory criteria has been satisfied rests with the sound discretion of the court (People v Baxley, 84 NY2d 208, 212 [1994]).

In order to constitute newly discovered evidence within the meaning of the statute the [*5]evidence in question: (1) must be such as will probably change the result if a new trial is granted; (2) must have been discovered since the trial; (3) must be such as could not have been discovered before trial be the exercise of due diligence; (4) must be material to the issue; (5) must not be cumulative; and (6) must not be merely impeaching or contradictory to the former evidence (People v Salemi at 216; People v Lavrick, 146 AD2d 648, 648-649 [2d Dept 1989] cert. denied, 493 U.S. 1029 [1990]). The burden of proof is on the defendant to prove every fact essential to support the motion by a preponderance of the evidence (CPL §440.30[6]). It is also implicit in the nature of the grounds for the motion that the new evidence be admissible at trial (see People v Boyette, 201 AD2d 490, 491 [2d Dept 1994]).

A witness's recantation of trial testimony may constitute newly discovered depending on the "character and weight" of the recantation (People v Shilitano, 218 NY 161, 171 [1955]). However, such "recantation evidence is inherently unreliable and is insufficient alone to require setting aside a conviction" (People v Legette, 153 AD2d 760, 761 [2d Dept 1989]). Thus the trial court must weigh the credibility and content of the recantation and predict what effect, if any, the new evidence would have on a jury if substituted for the original testimony. The court must consider six factors: (1) the inherent believability of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for 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 related to a motive to lie (Id. at 170-172; People v Wong, 11 AD3d 724, 725-726 [3d Dept 2004]).

In this instance, Salcedo's recantation spanning his unsworn affidavits, his video-taped statement as well as his sworn hearing testimony was undermined by a number of factors and was neither credible or reliable. Pressure was exerted upon Salcedo by defendant's family throughout the course of defendant's prosecution and incarceration. At trial the absence of Reyes, who appeared to have a much more intense conflict with defendant than Salcedo, should have diminished Salcedo's motive to lie. Nevertheless, in the face of pressure from defendant's family that contributed to the closing of the courtroom, Salcedo insisted on inculpating defendant. His explanation at the hearing for continuing to place defendant at the scene out of some sense of continuity or loyalty to Reyes is beyond belief.

The manner in which the affidavits were submitted to Salcedo in the Dominican Republic demonstrates a continuing pattern of pressure. They were presented to him fully composed from the hand of defendant's family under the guidance and influence of Aurora Fernandez. It appears, furthermore, based on inconsistencies with his hearing testimony that Salcedo must have signed the second affidavit without inspection because of the different explanation he offered for his trip to Florida and for the duration of that excursion. In his affidavit he stated that he fled after the death of Reyes to Florida and stayed for nineteen months. At the hearing he presented a much more benign picture, traveling to Florida to visit family for one month unaware that the police were looking for him. Furthermore, Salcedo's change of heart upon being repeatedly assured that someone else had accepted responsibility for the killing was evasive and unconvincing and lacked a ring of truth as did his testimony that his doubts were longstanding.

The credibility of Salcedo's recantation is further undermined by the accusations of gross misconduct on the part of Detective Buda. Accusations that Buda secreted Salcedo and his wife in an airport hotel for days until he agreed to cooperate and at defendant's trial are highly [*6]improbable in the face of Buda's credible testimony at the hearing.

Finally, the purported corroboration supplied by Caraballo never materialized. Caraballo was untrustworthy with a motive to lie as large as his aggregate sentence and inflated by his unwillingness to subject any of his statements to an oath. His claims of involvement in the murder were too inconsistent to allow for the application of the hearsay exception of a statement against penal interest to overcome his absence by virtue of his invocation of his right against self-incrimination.

By failing to present a viable recantation, defendant has failed to satisfy the burden of substantiating his claim of newly discovered evidence. Accordingly, defendant's motion to vacate the judgement of conviction is denied.

This decision shall constitute the order of the court.

E N T E R:

___________________

ABRAHAM G. GERGES

J.S.C. Footnotes

Footnote 1:In each instance a significant amount of effort was expended by the parties in locating and making it possible for the witnesses to testify. Negotiations for the participation of Caraballo involved a number of individuals and significant procedural obstacles over a long period of time. The most difficult witness to obtain was Salcedo who not only had to be located but also had to have his immigration status temporarily modified in order to ensure his participation. Without the considerable cooperation of the defense and the prosecution in this case, justice would not have been served.