People v Newton

[*1] People v Newton 2010 NY Slip Op 52263(U) [30 Misc 3d 1204(A)] Decided on December 23, 2010 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2010
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Alan Newton, Defendant.



2054-1984



Appearances of Counsel:

John Schutty, Esq.

Counsel for the Defendant

Jason Whitehead

Assistant District Attorney

Office of the Bronx District Attorney

Richard Lee Price, J.

On May 6, 1985, defendant was convicted after a jury trial of attempted rape in the first degree (PL 110/130.05[1]) and endangering the welfare of a child (PL 260.10). On May 31, 1985, judgment was entered in the Supreme Court, Bronx County (Reinstein, J) to an indeterminate term of ten years imprisonment with a mandatory minimum period of three and one-third years on the charge of attempted rape in the first degree, and a determinate term of one year imprisonment on the charge of endangering the welfare of a child, to be served concurrently.

By motion submitted September 14, 2010, defendant now moves, pursuant to CPL 210.20(1)(i) and 210.40(1), to vacate the judgment against him and dismiss the indictment in furtherance of justice, as well as an order directing New York City Police Department (NYPD) to produce the "Yellow" and "White" Invoices associated with a blood-stained sweater introduced at trial. Defendant bases this motion on his claim that the NYPD mishandled and destroyed critical trial evidence, that trial counsel provided ineffective assistance of counsel, that the People's case against him was predicated solely on the uncorroborated witness of a nine-year old victim, that her physical injuries were minimal and she suffered no permanent or long-lasting effects, and that he has a strong "history, character and condition." For the reasons set forth below, defendant's motion is denied in its entirety.

Background and Procedural History

Indictment 2054-1984 [*2]

Prior to the commencement of trial, defendant moved to suppress identification evidence. Pursuant to that motion, the trial court ordered a pretrial hearing be held on the issue of whether the identification of him by the victim, then a nine-year old girl, was suggestive. On April 29, 1985, the trial court, after conducting such hearing, determined that the identification was not suggestive and denied defendant's motion. The court further found that an independent source existed for such identification based on the victim having observed him on two prior occasions inside the lobby of her building, and again for several minutes immediately before he attacked her.[FN1]

As noted, defendant was convicted after a jury trial on May 6, 1985, of attempted rape in the first degree (PL 110/130.05[1]) and endangering the welfare of a child (PL 260.10). Upon that conviction, defendant was sentenced on May 31, 1985, to an indeterminate term of ten years imprisonment with a mandatory minimum period of three and one-third years for the attempted rape, and a determinate term of one year imprisonment for endangering the welfare of a child, those terms to be served concurrently.

On February 24, 1987, the Appellate Division, First Department, affirmed his conviction.[FN2] On May 18, 1987, the Honorable Vito J. Titone, Associate Judge of the Court of Appeals, denied defendant's application for leave to appeal from the Appellate Division.[FN3] Defendant's appeal did not include a claim challenging the trial court's denial of his motion to suppress identification testimony.

On April 3, 1989, defendant filed the first of five pro se CPL 440.10 motions, in which he sought to vacate his conviction on the basis that trial counsel's representation was ineffective by failing to request a Mapp hearing concerning a prior arrest photo, and challenging its introduction in evidence. On June 21, 1989, Justice John Byrne denied defendant's motion because the issue could, and should, have been raised on his direct appeal. Both the Appellate Division and the Court of Appeals denied defendant's applications for leave to appeal. Such denials notwithstanding, defendant reasserted this claim in his second pro se CPL 440.10 motion to vacate his conviction, which he filed on October 4, 1989. On December 19, 1999, Justice Byrne denied that motion as well.

On April 8, 1991, defendant filed a third pro se CPL 440.10 motion claiming that the trial court improperly responded to a witness' question outside the presence of counsel, that trial counsel provided ineffective representation in failing to timely serve notice of, or present, an alibi defense, and that such failure constrained him from testifying on his own behalf. Justice Byrne denied that motion on June 11, 1991, without opinion.

On October 15, 1991, the Appellate Division, First Department, granted defendant leave to appeal on the issue of whether trial counsel provided ineffective representation in failing to serve the People with notice of an alibi defense. On April 11, 1993, the Appellate Division [*3]affirmed Justice Byrne's denial, concluding that defendant failed to establish trial counsel's decision not to pursue an alibi defense lacked any strategic or reasoned professional judgment. The court noted this was particularly so because the alibi witnesses' purported testimony would have placed defendant in close proximity to the location of the sexual assault.[FN4] Defendant's application for leave to the Court of Appeals was denied on August 5, 1993. On September 28, 1993, the Appellate Division granted defendant's motion for re-argument. Upon re-argument, the Appellate Division denied his motion for leave to appeal to the Court of Appeals.

On September 26, 1995, defendant filed a pro se writ of habeas corpus in the United States District Court for the Southern District of New York. In it, defendant asserted his claims that the trial court engaged in improper ex parte communication with the victim and trial counsel's failed to timely serve notice of an alibi defense. United States District Judge Barbara Jones denied defendant's habeas petition on December 27, 1999.[FN5]

Defendant then filed his fourth pro se CPL 440.10 motion on July 10, 2002, this time claiming that the felony complaint was jurisdictionally defective. Justice Byrne denied that motion on October 8, 2002.

Defendant's fifth pro se CPL 440.10 motion, filed on July 1, 2007, claimed the trial court erred in denying suppression of the victim's identification testimony and that he was denied effective assistance of both trial and appellate counsel. Defendant further moved, pursuant to CPL 440.30 (1)(a), for an order directing the People to search for and locate the victim's sweater and, if found, directing that the blood on the sweater be tested for the presence of DNA evidence. On October 2, 2008, this court denied the motion in its entirety.

On November 14, 2008, defendant moved to renew and reargue this court's decision denying his motion on the basis that the police failed to comply with their internal standards for conducting identification procedures, and that this court failed to apply the proper standard in determining the issue of suggestiveness concerning the police procedures employed during the identification process. This court denied defendant's motion for renewal and reargument on December 18, 2008.

Indictment 2441-1984

On May 7, 1985, a second jury trial commenced before Justice Reinstein, which concerned the sexual assault of a twenty-five year old female. Defendant was convicted after jury trial on May 20, 1985, of rape in the first degree (PL 130.05[1]), robbery in the first degree (PL 160.15[3] and assault in the first degree (PL 120.10[1]). Upon that conviction, defendant was sentenced on May 31, 1985, to two concurrent indeterminate terms of twenty-five years imprisonment with a mandatory minimum period of eight and one-third years for both the rape and the robbery, and an indeterminate term of fifteen years imprisonment with a mandatory minimum period of five years for the assault, that term to be served consecutively. The sentence imposed under this indictment was ordered to be served consecutive to the sentence imposed under Indictment 2054-1984. [*4]

On July 6, 2006, Justice Byrne, based upon the existence of DNA evidence, vacated defendant's conviction of rape, robbery and assault under Indictment 2441-1984, and dismissed the underlying indictment.

On October 19, 2010, in a civil proceeding related exclusively to his conviction under Indictment 2441-1984, a jury awarded the defendant $18.5 million dollars finding that the City of New York (City) and the NYPD had violated defendant's constitutional rights by failing to produce the rape kit for a period of eleven years, during which time it was in their possession.[FN6]

CPL 210.40 - Dismissal in Furtherance of Justice

CPL 210.40(1) provides, in pertinent part:

An indictment or any count thereof may be dismissed in furtherance of justice, as provided in paragraph (i) of subdivision one of section 210.20, when, even though there may be no basis for dismissal as a matter of law upon any ground specified in paragraphs (a) through (h) of said subdivision one of section 210.20, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.

CPL 210.20(1)(i) thus permits the defendant to move for dismissal in furtherance of justice pursuant to section 210.40 "[a]fter arraignment upon an indictment." CPL 210.20(2) specifies, however, that "[a] motion pursuant to this section . . . should be made within the period provided in section 255.20." That period, as prescribed in CPL 255.20(1), must be "within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment" (emphasis added), (People v Field, 161 AD2d 660 [2d Dept 1990][defendant's motion to dismiss the indictment in furtherance of justice untimely since it was not made within 45 days after arraignment]; see also People v Pittman, 228 AD2d 225 [1st Dept], lv denied 88 NY2d 992 [1996][delay in filing motion to dismiss charges until well beyond the statutory period was not adequately excused]. Additionally, CPL 255.20(3) permits a court to entertain and decide any appropriate victim motion on its merits "at any time before the end of the trial," but specifically requires such motions to be disposed of on the merits "at any time before sentence" (emphasis added), (People v Weaver, 112 AD2d 782 [4th Dept 1985][court not empowered to entertain and determine a motion to dismiss the indictment in furtherance of justice after sentence].

There is little doubt that defendant's motion, made pursuant to CPL 210.40 in furtherance of justice, is for all intents and purposes a pretrial motion. Indeed, one need look no further than several of the statutory factors a court must consider in deciding a CPL 210.40 motion, such as "the evidence of guilt, whether admissible or inadmissible at trial, any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant, the purpose and effect of imposing upon the defendant a sentence authorized for the offense, and any other relevant fact indicating that a judgment of conviction would serve no useful purpose." Such considerations ostensibly infer that a pretrial analysis be employed (CPL 210.40[c], [e], [f], [g]). [*5]

As noted above, judgment was entered against the defendant on May 31, 1985, when sentence was imposed upon his conviction following a jury trial. Defendant's motion, submitted September 14, 2010, comes more than twenty-five years later, hardly qualifying as a pretrial motion. Nothing contained in CPL 210.40, 210.20, 255.20 or 440 authorizes a court to entertain a pretrial motion once judgment has been entered, or vacate that judgment based upon CPL 210.40(1) considerations. Consequently, notwithstanding counsel's wholly unsupported assertion that "[t]his court has the power within its means"[FN7] to grant the relief he seeks, no such power or authority exists.

Even if this court were inclined to disregard the lack of statutory authority to entertain defendant's motion, which it is not, it would nevertheless find defendant's motion to be without merit. CPL 210.40(1) contains ten factors to be considered when determining whether to grant dismissal of an indictment in furtherance of justice.[FN8] Regarding those factors, defendant claims that the sole identification witness was that of an uncorroborated nine-year old girl, that trial counsel provided ineffective representation, and that the NYPD allegedly mishandled and destroyed critical trial evidence. This court notes, however, that notwithstanding his laborious effort to re-litigate the identification and ineffective assistance of counsel claims, those claims were previously heard, considered and rejected, most recently by this court's denial of his 2008 CPL 440 motion. Thus, this court will not address them again except to note that they were unpersuasive then, are unpersuasive now, and would be no more persuasive in the context of a CPL 210.40 motion.

Regarding the victim impact, defendant offers the wholly unsupported assertion that "the injuries sustained by the child-victim were admittedly very modest (some small cuts and bruises), and her recovery apparently proceeded without incident. She apparently is now happily married and successfully employed in the financial industry."[FN9] Conspicuously absent from his fifty-page motion supported by numerous exhibits that include affidavits of defendant's improved character [*6]and condition, is any affidavit or statement from the victim to corroborate it. Defendant's lip-service acknowledgment that the crimes for which he was convicted were serious aside, the disingenuiness of his assertion is not lost on this court. A review of the testimony concerning the criminal conduct for which he was convicted leads to the inescapable conclusion that but for hearing another woman's voice, the defendant may well have succeeded in causing serious injury.[FN10] Regardless, the events as they occurred are hardly sympathetic towards the defendant. It is, therefore, puzzling that he would reasonably expect this court to dismiss the indictment merely because he believes the victim is now "happily married and successfully employed," especially considering her deafening silence on the matter.

That said, defendant meticulously documents the positive aspects of his life and character, especially that which he developed while incarcerated. True, receiving a college degree while incarcerated, involving himself in numerous programs, becoming a mentor, and continuing his education after being released indeed demonstrate that he is ready to become a productive member of society. Certainly, this court recognizes and credits defendant's self-improvement and family support throughout his incarceration. While such self-improvement is, of course, praiseworthy, it is not a basis for dismissal in furtherance of justice (see People McIlwain, 300 AD2d 320 [2d Dept 2002]. Moreover, if the legislature had intended self-improvement to serve as a basis for the courts to vacate a judgment of conviction and dismiss the indictment in furtherance of justice, it would have provided the statutory authority to do so. Clearly, it did not.

Arguably, defendant's most significant contention is that the NYPD engaged in exceptional misconduct by mishandling and losing the victim's sweater, which he asserts may have conclusively established his innocence. It appears, however, that such claim assumes the NYPD was under a duty to indefinitely preserve the sweater. Regarding the preservation of evidence, the First Department has held that "[t]he People have a duty to prevent the destruction of evidence until all appeals have been exhausted" (People v Watkins, 189 AD2d 623, 624 [1st Dept 1993]; People v Ahlers, 285 AD2d 664 [3rd Dept 2001] [440.30(1)(a) motion denied where evidence was destroyed after conviction was affirmed on appeal seventeen years earlier].

As indicated, defendant was sentenced on May 31, 1985, pursuant to his May 6, 1985, conviction. In 1987, the Appellate Division affirmed his conviction and the Court of Appeals denied his petition for leave. In 1989, defendant's first two pro se CPL 440 motions to vacate his conviction were denied, essentially because the claims he asserted could have been raised on direct appeal. Because defendant's direct appeals as well as two of his post-conviction motions were exhausted, the District Attorney had no reason to believe that the evidence would be required in any further subsequent proceeding. The People acknowledge that on August 10, 1990, the NYPD advised the District Attorney that "[i]f there is no response via the submission [*7]of a Complaint Follow-Up (P.D. 313-081), or a (U.F. 49) within 30 days of the receipt of this notification, to hold property on a specific voucher, the property will be disposed of."[FN11] The Property Clerk's Invoice under which the NYPD held the sweater, Number B697694, was specifically included in the list of indicated invoices. Relying on the affidavit of NYPD Property Clerk Division Sergeant John McNeill, who stated, "[t]here is no documentation which reflects that the property was indeed disposed of. However, it is likely that the sweater was disposed of,'" the People conclude that the sweater defendant seeks to examine was probably destroyed.[FN12] Given that the defendant's direct appeals had been fully exhausted, neither the People nor the NYPD had an obligation to preserve the sweater.

Moreover, while there is no general inherent right to post-trial discovery, CPL 440.30

(1-a) (a) provides that where a court determines

evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the trial resulting in the judgment, the court shall grant the application for 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 judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.

Regarding the production of such evidence, CPL 440.30(1-a) (b) requires the People to,

. . . if the specified evidence no longer exists or the physical location of the specified evidence is unknown, [make] a representation to that effect and information and documentary evidence in the possession of the people concerning the last known physical location of such specified evidence. If there is a finding by the court that the specified evidence no longer exists or the physical location of such specified evidence is unknown, such information in and of itself shall not be a factor from which an inference unfavorable to the people may be drawn by the court in deciding a motion under this section.

Defendant brings this motion under Indictment 2054-1984. He is not, however, bashful about manipulating his successful litigation of Indictment 2441-1984, which was based upon the NYPD's failure to produce a rape kit for a period of eleven years, to secure yet another dismissal. Though this was apparent from his memorandum of law submitted in support of his motion, it became patently obvious by counsel's letter, dated October 27, 2010, notifying this court of the jury finding in the civil proceeding under Indictment 2441-1984. In it, he states that he is "writing to apprise you [this court] of several significant legal and factual findings reached in Mr. Newton's civil rights action against the City of New York (citation omitted). These findings should have an impact on Mr. Newton's pending CPL § 210.40 Motion to Dismiss Indictment in Furtherance of Justice.'"[FN13] [*8]

Specifically, counsel asserts that the NYPD "has neither produced the criminal evidence that Mr. Newton seeks to establish his innocence, nor . . . produced any paperwork to show what happened to that evidence," and urges this court to dismiss Indictment 2054-1984 in the interest of justice merely because of "constitutional violations committed by the City of New York against Mr. Newton with respect to its management of post-conviction criminal evidence" that occurred in an entirely unrelated matter (Indictment 2441-1984). In short, defendant seeks to accomplish what he was unable to through his direct appeal and multiple post-conviction motions by relying on the successful litigation of an inapplicable issue in an entirely unrelated case. It is upon this that he now claims "[t]his court has the power within its means today to finally make things right."[FN14] The absence of any such authority aside, this court disagrees. It is of notable interest, though, that such findings, which resulted in an $18.5 million dollar jury award, was returned on October 19, 2010, just one month after the submission of this motion.

Applying CPL 440.30(1-a), there are two significant distinctions between the missing rape kit and the presumptively destroyed sweater. Unlike the DNA evidence extracted from a rape kit that excluded the defendant as a source of the semen recovered from the victim, the presence of defendant's blood on the sweater from which DNA evidence may be extracted is, at best, speculative. Defendant, by his own admission, states there were no scratches on his hands while acknowledging that the victim suffered "small cuts and bruises."[FN15] Moreover, the People do not contend that any blood on the sweater must necessarily belong to the defendant. Counsel's claim, therefore, "that the only evidence that can reliably prove Newton's innocence is gone or destroyed — and this amounts to exceptionally serious misconduct on behalf of the NYPD"[FN16] is not only mere conjecture, but entirely unpersuasive.

That said, the People, in its memorandum opposing defendant's motion, submits affidavits of Assistant District Attorney Jason Whitehead [FN17] and NYPD Sergeant John McNeill,[FN18] as well as an internal NYPD memorandum from Sergeant Wing Tsang,[FN19] explicitly documenting the effort exerted in attempting to locate the sweater. More recently, by letter dated October 6, 2010, the People specifically requested the NYPD "conduct a search for the original "Yellow" [*9]and "White" copies for property voucher number B697694."[FN20] To date, the District Attorney is apparently awaiting the results of that request.

Thus, notwithstanding that the People were under no obligation to have preserved the victim's sweater, they have provided more than adequate information and documentary evidence regarding its last known physical location, as well as a thorough explanation of previous and ongoing efforts to either find it or verify its destruction. Such action complies with prevailing authority (People v Pitts, 4 NY3d 303 [2005]; People v Garcia, 65 AD3d 932 [1st Dept 2009]; People v West, 41 AD3d 884 [3d Dept 2007]). This court, therefore, rejects counsel's assertion, that "[t]he only reasonable conclusion one can draw from the NYPD's failure to produce the Yellow and White Invoices for the blood-stained sweater evidence is that the NYPD has either improperly destroyed these valuable Invoices or the NYPD has improperly destroyed the evidence in violation of its own policies and procedures" (emphasis as quoted).[FN21] Accordingly, since the sweater's absence cannot be construed as misconduct, and the People have properly demonstrated their efforts to locate both the sweater and the corresponding property invoice records, defendant's application for an order from this court compelling its production, or the production of the "Yellow" and "White" Invoices, is denied.

For the foregoing reasons, the defendant's motion to vacate the judgment against him and dismiss the indictment in furtherance of justice pursuant to CPL 210.20(1)(i) and 210.40(1), as well as an order directing New York City Police Department (NYPD) to produce the "Yellow" and "White" Invoices associated with a blood-stained sweater introduced at trial is denied in its

entirety.

This constitutes the decision and order of the court.

Dated:December 23, 2010

E N T E R

________________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1: See People's memorandum of law, page 2, submitted with their affidavit in opposition to defendant's CPL 440.10 (1)(d) dated November 30, 2007.

Footnote 2: People v Newton, 127 AD2d 1014 (1st Dept 1987).

Footnote 3: People v Newton, 69 NY2d 1007 (1987).

Footnote 4: People v Newton, 192 AD2d 447 (1st Dept 1993).

Footnote 5: Newton v Coombe, 1999 WL 1268648 (SDNY Dec 28, 1999).

Footnote 6: Newton v City of New York, 07 Civ 6211 (SAS) (SDNY).

Footnote 7: See counsel's letter dated October 27, 2010, notifying this court of the jury finding in the civil proceeding under Indictment 2441-1984.

Footnote 8: CPL 210.40(1) provides, in pertinent part, "In determining whether such compelling factor, consideration or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(h) the impact of a dismissal on the safety or welfare of the community;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

Footnote 9: See defendant's memorandum of law, page 8, submitted in support of motion to dismiss indictment.

Footnote 10: See People's memorandum of law, page 2, submitted with their affidavit in opposition to defendant's CPL 440.10 (1)(d) dated November 30, 2007. Defendant approached the victim and asked whether the elevator was working, to which she replied that she did not know. Defendant asked her again and before she could respond, he grabbed her stomach from behind and shoved a bag into her mouth. He then threw her to the floor, bent her back and told her to shut up. Grabbing her mouth, the defendant scratched her, carried her onto the roof and pushed her down on a rock. After instructing her to stand up, he pressed his thumb in her waistband and attempt to pull down her pants before hearing another woman's voice calling out.

Footnote 11: See People's memorandum of law, Exhibit 4, Memorandum by Sergeant Adrian Merrick, Commanding Officer, NYPD Bronx Property Clerk.

Footnote 12: See People's memorandum of law, Exhibit 1, Affidavit of Sergeant John McNeill dated May 1, 2008, NYPD Property Clerk Division.

Footnote 13: See counsel's letter dated October 27, 2010, notifying this court of the jury finding in the civil proceeding under Indictment 2441-1984.

Footnote 14: See defendant's memorandum of law, page 2, submitted in support of motion to dismiss indictment.

Footnote 15: Id at pages 9-10,

Footnote 16: See defendant's memorandum of law, page 39, submitted in support of motion to dismiss indictment.

Footnote 17: See People's memorandum of law, Exhibit 2, Affidavit of Assistant District Attorney Jason Whitehead dated May 1, 2008, Office of the Bronx County District Attorney.

Footnote 18: See People's memorandum of law, Exhibit 1, Affidavit of Sergeant John McNeill dated May 1, 2008, NYPD Property Clerk Division.

Footnote 19: See People's memorandum of law, Exhibit 3, Memorandum from Sergeant Wing Tsang dated September 8, 2008, NYPD Bronx Property Clerk Facility Supervisor.

Footnote 20: See the District Attorney's letter dated October 6, 2010, to Ruby Marin-Jordan, Esq., Sepcial Counsel to the NYPD Deputy Commissioner for Legal Matters, submitted to this court along with the People's letter dated November 5, 2010, in response to counsel's letter to this court dated October 27, 2010.

Footnote 21: See defendant's memorandum of law, page 39, submitted in support of motion to dismiss indictment.