People v Johnson

[*1] People v Johnson 2008 NY Slip Op 50262(U) [18 Misc 3d 1131(A)] Decided on February 15, 2008 Supreme Court, Kings County Lewis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2008
Supreme Court, Kings County

The People of the State of New York

against

Lamont Johnson, Defendant.



4319/86



Joyce Slevin

Assistant District Attorney

Defense Attorney:

Robert J. Boyle, Esq.

Yvonne Lewis, J.

By decision, dated the 27th day of August, 2003, United States District Court Judge Edward R. Korman remanded the matter, sub judice, to this court for a hearing to determine whether or not the prosecution had knowingly utilized perjured testimony at Mr. Lamont Johnson's 1987 jury trial on two counts of Murder in the Second degree for which he was sentenced to two consecutive terms of twenty years to life.

Counsel for the defense has additionally petitioned this court for an order, pursuant to CPL §440.10 (1), (a), ( c), (d), (f), (g), and (h), vacating the judgment of conviction on the grounds that 1. perjured testimony had indeed been utilized at Mr. Johnson's trial; 2. "newly" discovered evidence revealed that ( i). the sole eyewitness admitted to having falsely accused Mr. Johnson,

( ii). a previously unknown eyewitness identified two others as the perpetrators of the mentioned crimes, ( iii). another witness confirmed that one of those perpetrators had confessed to her, ( iv). an alibi witness exonerated Mr. Johnson, and, ( v). the case detective had canvassed the neighborhood with a single picture of Mr. Johnson despite the fact that no one had at that point linked him to the crimes; and, 3. the ineffectiveness of trial counsel who permitted the improper impeachment of a non-hostile prosecution witness with his prior grand jury testimony, without requesting a limiting instruction by the court that such prior statement should be considered solely as to the issue of credibility.

In support of its requests, the defense synopsised the trial testimonies as follows: in the [*2]early morning hours (approximately 3:30am) of June 24, 1986, eyewitness Selvin Spencer (a/k/a Raheem) heard gunshots, then saw Mr. Johnson run past him in profile with a gun chasing after someone, whereafter he heard someone say, please don't kill me, followed by additional gunshots. At trial he referred to Mr. Johnson as "Majesty," whereas in the grand jury he had said "Magnetic." When questioned by the police the day after the shooting, Mr. Spencer denied being an eyewitness; but, a few days later admitted to having been a witness, gave a fictitious name, but never identified Mr. Johnson. Marvin Lamar testified that he saw one of the shootings, and that Mr. Johnson, with whom he had had a fight that summer, was not the shooter although he resembled him. The prosecution was thereupon permitted to impeach Mr. Lamar with his prior grand jury testimony wherein he had indicated that the shooter had been the guy with whom he had fought. No objection was made thereto by trial counsel or limiting instruction requested by him or ever given by the trial judge relegating that use of prior grand jury testimony for credibility purposes only. Mr. Johnson presented two alibi witnesses; to wit, his sister's friend, LaShaun Grant, with whom he and his sister, Tanya, had spent the night, and Rochelle Brown, his mother's co-worker, who had driven her home, saw him enter the apartment with a young woman at approximately two to two-fifteen in the morning (close to the time of the homicides) and remain for the approximately additional hour that she stayed in the house watching a movie. Finally, Mr. Lamar's girlfriend, Celeste Shim, asserted that when she heard gunshots, she had gone to the window and seen two men, neither of whom was Mr. Johnson, shoot a third party.

On March 14, 1990, Mr. Johnson's CPL 440.10 motion to set aside his convictions, predicated on the assertion that Selvin Spencer had been coerced by the police and investigators to falsely testify against him, the affidavit of an alibi witness, Alvin Sonny McKoy, and the unsigned statement of one, Denise Williams, who represented that a Rodney Pender had confessed to her that he had committed the murders with "Magnetic" was denied. The Appellate Division denied leave to appeal on July 15, 1990. The defense also acknowledges that on the 11th day of February, 1991, the Appellate Division, Second Department, denied Mr. Johnson's appeal, finding that his convictions were sufficient as a matter of law, that the lack of a circumstantial evidence charge and a limiting instruction vis-a-vis Mr. Lamar's impeachment did not constitute reversible error, and that Selvin Spencer's identification testimony had not been violative of Mr. Johnson's due process (See Peo. v. Johnson, 170 AD2d 535 [2d Dept., 1991]). Leave to appeal to the Court of Appeals was denied (See Peo. v. Johnson, 77 NY2d 996 [1991]). On December 20, 2003, another CPL 440.10 motion was denied although supported by affidavits from 1. Selvin Spencer that he had been coerced by the police and committed perjury at Mr. Johnson's trial, 2. Eric McKenzie that the police had attempted to have him falsely accuse Mr. Johnson of the subject crimes, and 3. Arhtur Brodie (a/k/a Hicks) that he had witnessed Rodney Pender and "Magnetic" running from the crime scene. Appeal was denied by the Appellate Division on April 5, 1994. Mr. Johnson's repeated CPL 440.10, reargument and renewal motions based on FOIL documents, dated July 2, 1996, July 3, 1998, and March 1, 2001, to this court and appeals thereof to the Appellate Division were all denied.

Selvin Spencer died in August, 2004, prior to the hearing that had been ordered by United States District Court Judge Edward R. Korman and which was ultimately held on December 15, 2004, January 19, 2005, April 6, 2006, June 21, 2006, September 19, 2006, [*3]October 19, 2006, November 9, 2006, and December 18, 2006. Mr. Spencer's three post trial affidavits and an unsworn statement were admitted into evidence on consent to the effect that he had been coached by the prosecution and police, paid, and promised leniency with parole and a pending case to falsely testify against Mr. Johnson. He also admitted that he had lied about threats from Mr. Johnson in 1992. Victor Berry, Spencer's brother-in-law and a convicted robber, testified that Mr. Spencer had admitted the foregoing to him at two family affairs. Arthur Brodie, who is serving a life sentence for felony murder, indicated that he had heard gunshots and thereafter seen "Ron K" and "Magnetic," with guns in hand, run by him and his wife (now deceased) who had been seated on a stoop. He indicated that "Magnetic" resembled Mr. Johnson but had a different complexion and that he knew both from the area, although they (he, Magnetic and Mr. Johnson) were neither friends nor enemies. He never went to the police, but in 1992 gave an affidavit to an investigator on behalf of Mr. Johnson, with whom he was subsequently housed at the same jail. Denise Williams, who knows Mr. Johnson, his nickname, "Majesty," and knew Ron K since Junior high school, testified that in 1986, the latter confessed to her that he and a "Magnetic" committed the subject murders. She furnished proof that Ron K had been killed in 1987. Alvin "Sonny" McKoy, incarcerated in North Carolina since 2002, testified that he had known Mr. Johnson from the neighborhood but had not associated with him, and that he and Selvin Spencer, his "get high partner," had observed a dead body on the ground after exiting the location at which they had been doing drugs on the night of the double homicides. Case detective Chmil testified that he and his partner, Detective Cavuto, responded to the crime scene four hours after the shootings (on June 24, 1986), that the witnesses agreed that two black males emerging from a maroon vehicle had been murdered, and that the victims were thereafter identified (as Lance Gonzalez [a/k/a Tata] and Damon Rogers). A .32 caliber shell casing had been recovered from the noted vehicle. The next day (June 25, 1986), an anonymous caller alleged that "Umajesty" and "Natural" had done the killings as a result of a fallout over a robbery, which neither detective ever investigated, much less confirmed. With "Natural" subsequently identified as Michael Sennon and no further information on "Umajesty," both detectives inexplicably claimed that by midday of the 24th, they considered Messrs. Sennon and Johnson suspects. Detective Cavuto testified that Mr. Johnson was a suspect in four other cases with which he was never charged, but he couldn't pinpoint when he obtained that information or that Ron K, possibly Rodney Ford, was also a suspect in one of those cases. Detective Chmil admitted to canvassing the area with a single photograph of Mr. Johnson in his pocket, and being told by Marvin Lamar that one of the two males who had been chasing one of the victims had been wearing "Cazal" eyeglasses, had been called "Mag" (with a hard G sound), and that he had had a fight with him that summer. Mr. Lamar, after failing to respond to the precinct as requested, finally identified Mr. Johnson in a photo array conducted at his house on June 26, 1986 at 10pm. Although Jerry Brown and Selvin Spencer had been approached when they were together on the street and interviewed 15 minutes apart at the precinct house, Detective Chmil initially testified that Mr. Spencer was taken to the precinct by himself and then couldn't recall whether the two had been together in the vehicle. In addition, Mr. Brown never indicated that he had been with Mr. Spencer when he witnessed the shootings but not the perpetrators. Mr. Spencer in his interviews with the prosecutor and detectives indicated that he had been with "Jerry" when he witnessed the shootings, but never identified either shooter by name or nickname, only that he knew them from the area. In fact, he gave the police a fictitious [*4]name for himself. Both detectives claimed ignorance as to whether Mr. Sennon was ever interviewed; however, the police reports (DD5) not only showed that he had been arrested and interviewed but that Detective Cavuto was going to investigate his alibi. John Parron, current Chief Executive Officer of the janitorial service (See-Clear maintenance Company) at the IBM facility that Mr. Sennon had represented as his alibi, who in 1986 oversaw payroll and administration for the company as its Chief Operating Officer, indicated that records from that period are no longer available; however, the standard practice then in effect was not to permit employees at the IBM facility to leave the premises during their meal breaks. The case detectives admitted only to having given Mr. Spencer carfare, and that Mr. Sennon was never arrested and charged with the double homicides.

Former Assistant District Attorney (ADA) Brian Harnick, who had been assigned the subject matter on June 26, 1986 after Mr. Johnson's arrest, presented the case to the grand jury wherein Marvin Lamar and Selvin Spencer testified; he so tried the case. Though Spencer had indicated in the grand jury that he had seen Mr. Johnson as he chased one of the victims along Myrtle Avenue, toward and down Sumner Avenue (as had all other witnesses), at trial he testified that Mr. Johnson had run in the opposite direction along Myrtle towards Throop Avenue. Though he admitted that defense counsel had told him of Mr. Lamar's recantation prior to trial, ADA Harnick had no recollection of reaching out or questioning him as to any contact with defense counsel prior to calling him as a trial witness, only that after court Mr. Lamar had mentioned receiving some kind of threat. ADA Harnick also recalled Mr. Spencer asking him to take care of an open New York county robbery case, having spoken of threats against his family from an unknown source which had caused him to initially refuse to testify at trial, and having called someone, whom he (ADA Harnick) did not see, "Majesty" while in the pens.

A detective Louis Savarese, who had investigated an unrelated June 6, 1986 shooting asserted that the shooting victim had placed Messrs. Sennon and Johnson at the scene as merely being present but doing nothing. The shell casing from that shooting was matched to the same weapon utilized in the double homicide. That shooting victim, Eric McKenzie, testified that he, Natural, Kev (Natural's brother), and Mr. Johnson had been together until Ron K and Magnetic arrived, and that the latter had been standing behind him before he was shot in the back of the head. He stated that he never informed the police as to who shot him since he had been planning to retaliate on his own. He also indicated that Ron K and Mr. Johnson had been arguing over jewelry. Finally, he advised that while in the Rikers' Law Library in 1992 or 1993, he had heard Mr. Spencer apologize and admit to Mr. Johnson that he had given false testimony against him, and that he at no time had heard Mr. Johnson make any threats. The defense also points to the fact that no investigation by the Kings County District Attorney's Office or the Department of Corrections ever verified or connected Mr. Johnson to any threats or attacks against Mr. Spencer.

Counsel for the defense asserts that CPL §440.10 (1)(g) and (h) warrants vacatur of Mr. Johnson's convictions on the basis of newly discovered evidence; to wit, the post trial affidavits of Selvin Spencer which establish that he, the sole, uncorroborated eyewitness who linked Mr. Johnson to the double homicides, was a "fabrication motivated by personal gain," and given that they (the affidavits) meet the six point criteria set forth by the NY Court of Appeals in Peo. v. Salemi, 309 NY 208 (1956); i.e., the newly discovered evidence is such as 1. will probably change the result if a new trial is granted 2. must have been discovered since the trial, 3. Could not have been discovered before the trial by exercise of due diligence, 4. must be material to the [*5]issue, 5. must not be cumulative to the former issue, and 6. must not be merely impeaching or contradicting the former evidence. In addition, the defense argues that under the federal constitution, a defendant's due process is violated where the court concludes that his conviction would not have occurred but for the perjured testimony, even if the prosecution is unaware of the same (citing, Ortega v. Duncan, F3d 103 [2d Circuit, 2003]). Along that vein, counsel notes that even where a defendant fails to convince the court that the witnesses' trial testimony was false, he would be entitled to a new trial if he demonstrates that it is "reasonably probable" that such testimony was false (citing, Peo. v. Shilitano, 218 NY 161 [1016], Peo v. wong, 11 AD3d 724 [3d Dept., 2004]). The defense concludes that Mr. Johnson's convictions cannot withstand the Salemi, supra , and federal due process standards just discussed in light of Spencer's recantations (lied for personal gain), and post-trial corroboration by Victor Berry (Spencer admitted to him that he had lied against Mr. Johnson, a/k/a Majesty, not Magnetic), Alvin "Sonny" McKoy (was getting high with Spencer at time of murders), Arthur Brodie (saw Ron K and Magnetic run past holding guns after hearing gunshots), Denise Williams (Ron K confessed to her that he and Magnetic committed the double murders), and Eric McKenzie (Magnetic shot him with the same gun utilized in double murders). A ballistics report, not furnished by the prosecution at trial, revealed that a spent casing was recovered from inside the victims' vehicle which the defense posits indicates that the shootings commenced from within or in close proximity to the vehicle (not outside and away from the car as testified to by Spencer). In addition, Michael Sennon, the other alleged perpetrator identified by Spencer, had an alibi that confirmed his presence at an IBM job facility at the time of the murders, which resulted in his never having been arrested or charged therewith.

The defense also maintains that the undisclosed ballistic evidence at the time of trial, Spencer's contradictory preliminary statement to the police and disparate testimonies (grand jury versus trial flow of events), and misidentification of Michael Sennon as one of the murderers are sufficient to establish that the prosecution knew or should have known that his testimony was perjurious (citing, Giglio v United States, 405 US 150 (1972), Napue v. Illinois, 360 US 264 (1959), Mooney v. Holohan, 294 US 103 (1935), Peo. v. Cwilka, 46 NY2d 434 [1979], etc.). In addition, the defense asserts that the failure to have disclosed that ballistics report constitutes a Brady violation as per the United States Supreme Court holding in Strickler v. Greene, 527 US 263 (1999), since such evidence must 1. be favorable to the accused either because it is exculpatory or impeaching, 2. have been suppressed by the prosecution either wilfully or inadvertently, and 3. must have prejudiced the defendant, which criteria were certainly met in this case. It is the defense posture that a new trial is warranted in light of the fact that ". . .it is reasonably probable' that had the material (ballistics report) been disclosed, the verdict would have been different." (citing, United States v. Bagley, 472 US 667 (1985) and Kyles v. Whitely, 514 US 434).

Finally, the defense argues that trial counsel's failure to have requested a limiting charge vis-a-vis the use of witness Lamar's grand jury testimony to impeach his non-identification of Mr. Johnson as the shooter with whom he had had a fistfight that summer constituted the ineffective assistance of trial counsel inasmuch as it allowed the prior testimony to be construed by the jury as having been admitted for its truth rather than simply bearing on the issue of credibility, thereby depriving Mr. Johnson of a fair trial. Such failure clearly demonstrated that trial counsel's performance fell below an objective standard of reasonableness (citing, Strickland [*6]v. Washington, 466 US 668 (1984), and did not constitute meaningful representation under the totality of the circumstances (citing, Peo. v Baldi, 54 NY2d 137 [1981]).

In opposing the defense motions herein, the prosecution detailed Mr. Johnson's previously denied 440 motions which it argues already raised all of the issues set forth to be resolved by the defense. The first, in November 1989, had been supported by affidavits from Walter Johnson, Raymond Buckner, and George Jennings, all of whom had been incarcerated at Coxsackie Correctional Facility, attesting to the fact that Selvin Spencer had admitted to them that he had not witnessed the shootings and that the police had pressured him to identify Mr. Johnson as the shooter, an unsigned statement from Denise Williams and an affidavit from Derrick Hamilton that Rodney Pender (a/k/a Ron K) had confessed to them that he and Magnetic had committed the double murders. The second, in May, 1993, contained an affidavit from Mr. Spencer recanting his trial testimony, the aforementioned affidavits and unsworn statement, as well as three written statements witnessed by Mr. Johnson's investigator, Joe Burnside, by Arthur Brodie that he had seen Rodney Pender and Magnetic run from the scene with guns in hand, by Eric McKenzie that detectives had told him that Mr. Johnson had shot him and the victims of the double homicide despite him having told them that Mr. Johnson couldn't have shot him since he had been standing to his side as he talked face to face with some one else when he had been shot in the back of the head, and by Raymond Smith, who'd been employed by the New York City Department of Corrections in 1987, that Mr. Spencer had told him that he was under pressure by the prosecutor to testify and that his testimony would help him (Spencer) get released. The third, in July 1996, alleged Rosario and Brady violations, in that the prosecution's failure to have disclosed the presence of blood stains and a discharged shell casing in the victims' car failed to expose evidence that contradicted Spencer's trial testimony that the victims had been shot outside of their car.

The prosecution also noted that the District Court has already specifically determined that 1. Mr. Spencer had proceeded with his trial testimony not as a result of any prosecutorial promise but under the court's threat to hold him in contempt, and, 2. Mr. Spencer's recantation would not probably change the result if a new trial were ordered because there was persuasive evidence that Mr. Spencer had been threatened to recant his testimony. In short, the District Court remanded the matter, sub judice, solely "to make findings of fact as to whether the prosecutor had any knowledge that Selvin Spencer did not testify truthfully."

Aside from inconsistencies in their various accounts as to when and how they came to learn of Mr. Johnson's conviction for the double homicides, the following evidence was offered with regards to credibility. Victor Berry was shown to have been sentenced to one to three years for firearm possession and nine to eighteen years for robbery. Arthur Brodie has been serving a life sentence for felony murder since 1987. He also pled guilty to attempted assault on a court officer stemming from an armed attack in the courtroom by him and his brother at the time of the murder verdict. He was also shown to have had twenty prison violations, including possession of a razor blade while in prison, and a prior misdemeanor conviction. Michael Sennon had been one of his co-defendants in the felony murder. Messrs. Berry and Brodie had been incarcerated at the same prison facility prior to their respective affidavits. Ms. Denise Williams (a/k/a Denise Scott) visited Mr. Brodie in prison some sixty times, albeit fifty-nine of which occurred after her hearing testimony. She misrepresented her previous employment with the NYC Transit authority from cleaner to engineer and the fact that she had a college degree, and had written and [*7]visited Mr. Johnson in jail. Alvin McKoy, an admitted substance abuser, has innumerable criminal convictions, including armed robberies, rape, possession of a weapon, assault of a postal employee, possession of stolen property, and bail jumping, and is currently serving six and two-third to eight and two-third years for a burglary conviction in North Carolina. At one point, he and Mr. Brodie were housed in the same prison. He did not know for a fact that the Raheem with whom he had been getting high at the time of the double homicides was Selvin Spencer; rather, he was told by Mr. Brodie that Selvin Spencer was nicknamed, Raheem. Mr. John Parron (job alibi for Mr. Sennon) was revealed to be a scofflaw, with multiple driver's license suspensions, who was arrested for driving with a suspended driver's license, and bench warranted therefor for failure to appear in Court on five occasions. Eric McKenzie, a persistent violent felony offender and admitted angel dust user, is serving three life sentences of eight years to life for two counts of gun possession with intent to use in separate incidents and reckless endangerment. He also has prior convictions for assault and robbery, and eighteen prison violations, ranging from drug possession, fighting, refusal to obey, and instigating violence against other inmates. More importantly, never before the hearing had he accused Magnetic of having shot him.

The prosecution noted that Detective Chmil had indicated that when he arrived at work on the morning of June 24, 1986, and prior to responding to the crime scene, he had been informed by brother detectives that "word on the street" was that Mr. Johnson was the shooter, and that he had thereupon obtained his NYSID number, address, and learned that his nickname was Majesty. He testified to having conducted several photo arrays, that Messrs. Spencer and Lamar both identified Mr. Johnson in separate viewings of the same photo array, and indicated that he never showed individual photographs to a witness in an investigation. He also noted that the names Ron K, Rodney Pender, and Magnetic never came up during the investigation. Interestingly, Mr. Johnson's June 26, 1986 arrest photo for the double homicides shows him sporting Cazal eyeglasses. Detective Cavuto testified that he had learned that a Detective John Mack had arrested Mr. Johnson and Shannon Kelly for first degree robbery, and that following Mr. Johnson's arrest, he had spoken to Mr. Kelly who indicated that they and another guy named Shaheen had been on the street prior to the double homicide. In addition, he also ascertained that Mr. Johnson was a suspect in the Eric McKenzie first degree assault case and a suspect in four other homicides, one in which Ron K, Shannon Kelly, and Troy Bates were suspects, another where Mr. Johnson and one other male were suspects, and another in which Mr. Johnson and the double homicide victims (Gonzalez and Rogers) were suspects. Detective Savarese, who investigated the McKenzie shooting, advised that his training in semiautomatic weapons informed him that shell casings from such firearms are ejected one to five feet, possibly more, therefrom. Detective Cavuto was also advised by police officer Patrick Ednee, on June 25, 1986, that an anonymous person had advised that Messrs. Johnson and Sennon had killed Gonzalez and Rogers for not giving them their share of a robbery that the four had jointly committed. No blood sample was recovered by the crime scene unit from the vehicle exited by the double homicide victims, both of whom had prior robbery convictions. Detective Cavuto was advised by Michael Sennon's parole officer in July of 1986 that he had abruptly stopped reporting in late June of that year. Michael Sennon, Shannon Kelly, Arthur Brodie, and Robert Brodie were thereafter arrested for an unrelated murder on September 18, 1986, incident to which Mr. Sennon disclosed his IBM alibi for the double homicides, which unverified case notes in Detective [*8]Cavuto's file indicated would be investigated by him. Mr. Spencer could not be located to make an in-person identification of Mr. Sennon who was ultimately convicted of the unrelated homicide. The prosecution opines that Mr. Sennon's non-prosecution for the subject double homicides may have been three fold; the failure to have located Mr. Sennon, his conviction on the unrelated murder, and the fact that in 1986, homicides were handled by detectives on an average of twenty to twenty-five a year, approximately one every two weeks, and by the DA's office one a day.

The prosecution also stressed that there was no basis to suspect any falsehood in the witness accounts since both Messrs. Lamar and Spencer identified Mr. Johnson as one of the shooters in the Grand Jury (6/30/86 and 7/31/86, respectively), Mr. Lamar claimed to have overheard one victim use Mr. Johnson's nickname, "Maj," that the police had confirmed the presence of a maroon vehicle at the scene, ballistics later lifted one victim's fingerprint from said car, .32 caliber shell casings were retrieved from the vehicle and near one victim's (Rogers) body, the victims had multiple gunshots to their backs in a manner consistent with having been chased by the perpetrators, one of the victims (Rogers) had gun powder marks in one of his wounds consistent with having been shot at close range. No blood evidence was ever recovered from the vehicle, which trial counsel had been afforded an opportunity to examine. Both Lamar and Spencer had informed the trial assistant that their reluctance and/or change in testimony at trial was attributable to threats. In exchange for Spencer's testimony, the trial assistant promised to ask the Manhattan DA's office to reduce his pending robbery to a misdemeanor, to speak to the parole board about not violating him, and to have Spencer incarcerated at a federal facility or a State facility other than one in which Mr. Johnson was confined, all of which promises were disclosed to trial counsel. Subsequent to testifying at Mr. Johnson's trial and incident to subsequent State incarcerations, Mr. Spencer wrote some eighteen letters to the Kings County DA's Office which advised of threats from Mr. Johnson and his friends/associates, recanting his trial testimony as a result thereof, requested assistance in obtaining work-release, and submitting to prosecution for perjury so as not to have to watch his back. Mr. Spencer's medical records during his incarceration revealed complaints of head trauma in October 1991, dizziness, blurred vision, injury causing brief loss of consciousness, a brain scan for subdural hematoma (with negative results), and fear of sneak attacks in 1992. In one of the various recantations allegedly authored by Mr. Spencer, details were furnished that were inconsistent with the crime; eg, a blue vehicle having been exited by the victims, and reference to a parallel Avenue for their subsequent chase. Others varied from a pay off by the police, the police overlooking a drug arrest, to the DA taking care of an open robbery and a parole violation. Riker's Island records established that Messrs. Spencer, Johnson, and McKenzie were never jointly incarcerated thereat, such that McKenzie could have overheard Spencer admitting to Johnson that he had lied at his trial. Johnson and McKenzie were housed together at Riker's and Auburn Correctional Facility. When Mr. Spencer was transferred to another State [Adirondack from Franklin] institution (allegedly for his protection, euphemistically categorized by prison officials as due to unsuitable separation from inmates), Arthur Brodie's brother, Alfred, attempted to be added to his inmate correspondence list.

The prosecution argues that Mr. Johnson's motion for vacatur on the basis of newly discovered evidence should be denied since the points therein raised (recantations, third party confession, .32 caliber shell casing, etc.) have already been decided on the merits (citing, CPL [*9]§440.10(3)(b); Peo. v. Cortez, 158 AD2d 611[2d Dept., 1990]), and do not fulfill the requirements set forth in Peo. v. Salemi, supra , for newly discovered evidence. More to the point, the prosecution asserts that the alleged Spencer recantations and Brodie, Williams, McKenzie affidavits are merely impeachment material that would probably not change the result if a new trial were granted. In fact, even if they had not been inconsistent (with each other), obtained under duress, and refuted by the credible hearing testimonies, the Spencer (recantation) affidavits would constitute impermissible hearsay at any new trial. The prosecution also contends that Mr. Spencer having voluntarily sought out protective custody, and the fact that his letters to the District Attorney's Office exhibit his distress (inner conflict) between exposing himself to perjury or refusing to recant and thereby remaining vulnerable to attack, militates against him having merely orchestrated events; i.e, feigned threats to obtain work release. To the contrary, the prosecution asserts that Mr. Spencer's acknowledgment of rendering himself subject to prosecution for perjury would be a legal basis to admit his letters as declarations against penal interest in substantiation of the threats made against him to compel their authorship (citing, Peo. v. Settles, 46 NY2d 154 [1978]). The prosecution also maintains that Mr. Johnson is procedurally barred by CPL §440.10(3) ( c) from raising the purported Sennon's alibi exoneration as proof of Spencer's false identification of him since he could have raised that point in his prior motions but inexplicably failed to do so. The prosecution stresses that the police never actually cleared Mr. Sennon based on an alibi, but rather made no arrest since Mr. Spencer could not be located at the time of his (Sennon's) apprehension on an unrelated murder for which he was ultimately convicted. In addition, Mr. John Parron testified on the basis of business practice (employees not permitted to leave premises for meals) and not actual business records (actual recorded confirmation of Sennon at work site) which could not be located.

The prosecution also notes that Mr. Johnson failed to call as witnesses the affiants of his first 440 motion; to wit, Raymond Buckner, George Jennings, and Walter Johnson, who had sworn that Selvin Spencer had admitted to not having witnessed the shootings and to having been coerced by the police to falsely testify against Mr. Johnson. In addition, Derrick Hamilton, who is currently serving a twenty to life term of imprisonment for an unrelated murder, was also not called as a witness though he had furnished an affidavit to the effect that Ron K had admitted to him that he had carried out the shootings with Magnetic. Curiously enough, Mr. Hamilton had unsuccessfully sought to have his conviction vacated on the basis of newly discovered evidence strikingly similar to Mr. Johnson's; i.e., consisting of the eyewitness having been threatened by the police to testify against him in spite of the fact that she had been at another location at the time of the murder. In any event, the prosecution asks that this court draw an adverse inference from Mr. Johnson's failure to have called these heretofore "favorable" witnesses on his behalf at the hearing (citing, Peo. v. Savinon, 100 NY2d 192 (2003); and Peo. v. Paylor, 70 NY2d 146 [1987]).

The prosecution argues that Mr. Johnson's claim of its knowing use of perjured testimony is merely a restatement of his prior 440 motion that Mr. Spencer had been coerced into falsely testifying against him, and, hence, is barred by CPL §440.10(3) ( c) inasmuch as he could have raised that point in his prior motions but inexplicably failed to do so. The prosecution also asserts that Mr. Johnson's claim that he was denied the effective assistance of counsel is barred by CPL §440.10(2) ( c) since sufficient facts appear on the record to have provided for direct appellate review (of his trial counsel's failure to have requested a limiting charge vis-a-vis the [*10]use of grand jury testimony to impeach Mr. Lamar's non-trial identification of Mr. Johnson), yet Mr. Johnson unjustifiably failed to raise the claim on his direct appeal (citing, Peo. v. Mower, 97 NY2d 239 (2002); Peo. v. Smith, 36 AD3d 633 (2d Dept., 2007); and Peo. v. Cooks, 67 NY2d 100[1986]). In addition, the prosecution asserts that the Appellate Division's finding that said claim was unpreserved for appellate review or without merit (citing, Peo. v. Johnson, 170 AD2d 535 [2d Dept., 1991]), andthe District Court's determination that Mr. Johnson had not been denied due process or his right to confront the witness since the declarant of the out-of-court statement Marvin Lamar had been cross-examined at trial, together with counsel's performance (requesting and conducting a Wade hearing, competent opening, presentment of alibi and other defense witnesses, coss-examination of prosecution witnesses, and cogent closing argument) are indicative of meaningful representation (citing, Peo. v. Benevento, 91 NY2d 708 (1998); and Peo. v. Baldi, 54 NY2d 137 [1981]), and certainly contradict Mr. Johnson's assertion of inadequate representation.

In reply to the preceding, counsel for the defense submits that the prosecution's proffer of post hearing evidence to discredit witnesses is improper, and that this court should therefore not consider the same; to wit, employment records of Denise Williams, NYSID sheets of Messrs. Spencer, Mckenzie, and Johnson, Department of Correction Services location sheets for Messrs. Jenning, Buckner, Walter Johnson, and Lamont Johnson, Mr. Buckner's affidavit in support of an earlier 440 motion, a purported conversation between defense counsel and the prosecutor as to pre-hearing contact between Messrs. McKenzie and the defendant, allegations of criminal activity by Mr. Johnson's family, and the underlying argument raised by Mr. Hamilton in his own appeal.

The only rebuttal evidence offered by defense counsel was a document purporting to place Messrs. Spencer, McKenzie, and Johnson at the same institution simultaneously. Both sides agree that said report confirmed joint housing for the named individuals from December 14 to 31 of 1994. Defense counsel argued that an inference could be made up to January of the following year. In any event, Mr. McKenzie's testimony as to the conversation that he overheard did not coincide with the foregoing time frame.

The defense also emphasized the difference between CPL §440.10 (2) and (3), in that the former calls for mandatory denial where the issue was previously determined on appeal, is on direct appeal where the issue can be raised, the issue could have been raised on direct appeal but wasn't, and the issue relates solely to defendant's sentence, whereas the latter is provisional in that, although the court may deny the motion for the just mentioned reasons, the court in the interest of justice and for good cause shown may in its discretion grant the motion if it is otherwise meritorious and vacate the conviction. The defense notes that since Mr. Berry's conversation with Mr. Spencer occurred after the latter's release from prison in 1996 and that it did not learn of Mr. Parron (owner of See Clear Maintenance) until during the hearing, those witnesses could not have been made part of any previous motions or appeal.

Furthermore, the defense noted that the standard herein applicable is not whether Mr. Spencer's affidavits would be admissible at a new trial (though they would be as declarations against penal interest), rather it is whether they create a probability that the verdict would have been more favorable to Mr. Johnson. The defense also underscores the fact that no corroboration was ever made by the trial court or the Department of Corrections, State or City, to authenticate that any threats had been made against Mr. Spencer, much less any linkage thereof to Mr. [*11]Johnson. To the contrary, the defense asserts that the testimonies of Denise Williams (Ron K confessed to her that he and Magnetic committed the double murders), Arthur Brodie (saw Ron K and Magnetic run by gun in hand), Victor Berry (Spencer admitted to him about lying at trial), Alvin Sonny McKoy (was getting high with Spencer at time of murders), Eric McKenzie (Spencer apologized to Mr. Johnson in his presence for false trial testimony, and Magnetic shot him on previous occasion), together with the ballistics report that matched the gun from the McKenzie shooting to the double homicides, and Sennon's alibi (which better explains why Mr. Sennon was never charged) lead to the "inescapable conclusion" that Spencer's trial testimony was false, his recantations true, and that the prosecution knew or should have known the same.

In considering the foregoing, this court is ever mindful of Voltaire's assertion in Zalig, that "it is better to risk saving a guilty person than to condemn an innocent one," and finds that it is no doubt that very sentiment which gave voice to the justiciable pronouncement that "it is better to let ten guilty persons escape than one innocent suffer" (See Sir William Blackstone, Commentaires, bk. IV, 27). In the face of that time worn precept, it seems inimical, if not outright contradictory, to contemplate whether murder, however foul, could ever justify the possibility, however remote, of wrongful conviction (See Peo. v. Shuler, Ind.#

2770/91, NYLJ 03/04/02; p. 28; col. 2). But that is the task presently before this court; and, in making that determination, this court notes, inceptively, that the prosecution's contention that Mr. Johnson's argument for dismissal due to its knowing use of perjured testimony should not be considered since it is merely a reassertion of the claim that Spencer's testimony was false (as priorly argued in several CPL §440 motions) is of no moment since Judge Korman remanded the within matter precisely for that purpose. Additionally, this court is well aware of the dictates of CPL §440.10 (3) which gives it the inherent power, in the interest of justice and for good cause shown, to discretionarily grant a motion to set aside a conviction if it is otherwise meritorious even where the issue was previously determined on appeal, is on direct appeal where the issue can be raised, and/or the issue could have been raised on direct appeal but wasn't. Accordingly, the court, having considered both requests by the defense to set aside Mr. Johnson's conviction due to the prosecution's knowing use of perjured testimony and/or, pursuant to CPL §440.10 (1), (a), ( c), (d), (f), (g), and (h), on the basis of newly discovered evidence as hereinabove expounded, and the ineffective assistance of counsel makes, the following findings and conclusions of law. Under CPL §440.10 (g), the court has the power to vacate a judgment upon the ground that new evidence has been discovered, 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. Hence, assuming arguendo, that the information contained in the affidavits of Denise Williams, Alvin McKoy, Eric McKenzie, Arthur Brodie, and Victor Berry could only have been obtained post-trial, that would only satisfy the first component of the statute. The problem here is that the second requirement can never be fulfilled since the witnesses themselves are not credible, as evidenced not only by their courtroom demeanors, inconsistencies in their statements, but also by their associations with each other and with the defendant, not to mention their past convictions (with the exception of Ms. Williams) and/or bad acts as previously mentioned herein. The sudden coincidental willingness of Messrs. Brodie and McKenzie to come forward when both individually testified that their normal inclinations are not to cooperate with the system (police, etc.) is especially telling of collusion. It is also noteworthy [*12]to observe that the affidavits of these individuals tended to follow on the heels of prison contacts, and appear orchestrated to identify individuals who are conveniently beyond the reach of prosecution (by death or non-identification beyond a nickname) as the actual perpetrators of these killings. The recantations by Mr. Spencer, now deceased, are not uniform, give an account of the shootings inconsistent with established facts asserted by all other witnesses, and are preceded by letters that speak to their inducement by threats. In the face of such glaring incredulity, corroborative evidence is essential; for, as stated in Peo. v. Settles, 46 NY2d 154, 412 NYS2d 874, "[t]o circumvent fabrication and insure the reliability of [such] statements, there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein."

The failure of the police or prosecution to have investigated a possible motive; namely a prior robbery, does not disprove any of the trial evidence. By the same token, the intermingling of the defense witnesses cannot be denied. Though Mr. Mckenzie and the police differed as to whom he had originally identified as his shooter or as the persons who had been arguing, the fact is that Mr. McKenzie testified that at the time of his shooting, there had been some dispute over jewelry in the presence of Ron K, Magnetic, Lamont Johnson, Kev, and Natural (a/k/a Michael Sennon). In addition, it was brought out that Mr. Johnson and the double homicide victims (Gonzalez and Rogers) had been suspects in an unrelated, unsolved murder.

To make out a claim of ineffective assistance of counsel, a defendant must demonstrate that his attorney's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Not only must judicial scrutiny of counsel's performance be highly deferential, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy (citing, Strickland v. Washington, 466 US 687, 104 S. Ct. 2052; Jackson v. Leonardo, 162 F3d 81[2d Cir., 1998]; Yarborough v. Gentry, 540 US 1, 124 S. Ct. 1 [2003]). In the case of the Lamar impeachment, it cannot be ruled out that trial counsel may not have wanted to emphasize the prior grand jury testimony wherein he identified Mr. Johnson by asking for a limiting charge. Besides that one omission, Mr. Johnson has not pointed to any other error or faux pas in his attorney's performance. In fact, this court agrees with the District Court's previously noted determination that Mr. Johnson had not been denied due process or his right to confront the witness since the declarant of the out-of-court statement Marvin Lamar had been cross-examined at trial by his attorney whose conduct, including but not limited to requesting and conducting a Wade hearing, competent opening, presentment of alibi and other defense witnesses, coss-examination of prosecution witnesses, and cogent closing argument, was indicative of meaningful representation (citing, Peo. v. Benevento, supra ; and Peo. v. Baldi, supra ).

This court also sees no need to disturb any of the prior 440 denials. Even if this court were to regard the instant 440 motion as one to renew and/or reargue, this court notes that a motion to reargue requires that its proponent establish that the Court has "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided." In addition, such a motion must be made within thirty days of the order that it seeks to affect (See CPLR R2221(d) 1. and 2.; Foley v. Roche, 68 AD2d 558, 418 NYS2d 588). A motion to renew must set forth "new facts not offered on the prior motion that could [*13]change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; [and it must] contain reasonable justification for the failure to present such facts on the prior motion." (See CPLR R2221(e) 2. and 3.). The motion before the court does not meet any of the foregoing requirements; i.e., it has not presented any overlooked, misapprehended, or new facts, the misapplication of any controlling law or change in the law that would alter the prior determinations.

More particularly, and under all the attendant circumstances of this case, it has not been established that any perjured testimony was utilized in the course of Mr. Johnson's trial, much less that the prosecution knew or should have known of any such occurrence. It is equally clear that the jury could have reasonably concluded that Mr. Spencer was initially reluctant to testify and that Mr. Lamar refused to make an in-court identification of Mr. Johnson at trial out of fear. But the fact is that the jury, after assessing the credibility of all the witnesses, decided in favor of convicting Mr. Johnson. This court see no basis to interfere and/or reverse that finding.

In the final analysis, if this court were to accept the defense position herein, it would have to arrive at the conclusion that a deceased individual, Ron K, and an unverifiable other, allegedly nicknamed Magnetic, committed the double murders for which Mr. Johnson stands convicted. The court would also have to adopt the defense claim that Selvin Spencer was the sole, uncorroborated eyewitness who linked Mr. Johnson to the double homicides, when, in fact, another eyewitness, Marvin Lamar, also implicated him as a gun toting participant in the shootings. This court is being asked to do so on the bases of a ballistics report that, while muddying the accusatory pool of suspects, does not clearly exculpate Mr. Johnson, and on testimonies from individuals who have demonstrated propensities to generally place their interests above that of society, as evidenced by their multiple convictions, and given under circumstances that reek of collusion, stemming from prior concerted criminal entanglements and subsequent joint incarcerations and/or associations. In addition, the court would have to give credence to recantations purportedly penned by an individual (Selvin Spencer) who self-authored numerous letters advising of threats to compel their production, as well as discard the testimony of another eyewitness (Marvin Lamar) who also spoke of threats having been made against him and/or his family. This the court cannot in good conscience do. Wherefore, on the basis of all of the foregoing, this court finds that the defense has failed to establish that the prosecution knowingly utilized perjured testimony at Mr. Lamont Johnson's 1987 jury trial on two counts of Murder in the Second degree. In addition, Mr. Johnson's motion, pursuant to CPL §440.10 (1), (a), ( c), (d), (f), (g), and (h), to vacate his judgment of conviction on the grounds that 1. perjured testimony had indeed been utilized at his trial; and, 2. "newly" discovered evidence is also denied as unfounded, and on the plain fact that this Court, the Appellate Division, and the District Court have previously ruled on the very issues again sought to be litigated. This constitutes the decision and order of this court.

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Hon. Yvonne Lewis