People v McKenzie

[*1] People v McKenzie 2014 NY Slip Op 50140(U) Decided on January 23, 2014 Supreme Court, Bronx County Best, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2014
Supreme Court, Bronx County

People of the State of New York,

against

Latif McKenzie, Defendant.



6482-99



Latif McKenzie

Pro Se Defendant

Daniel P. Johnson, Esq.

Assistant District Attorney, Bronx County

Miriam R. Best, J.

Defendant moves to vacate the judgment of conviction and dismiss the indictment with prejudice, under CPL §§ 440.10(1)(f) and (1)(h), on the grounds of prosecutorial misconduct and ineffective assistance of counsel. Defendant also asserts that he is innocent. For the reasons that follow, no hearing is necessary and the motion is denied.

Procedural History [FN1][*2]

On February 1, 1999, defendant and two accomplices [FN2] pushed their way into a Bronx apartment where Donald Johnson, Wendell McKenzie, Benita Green and Green's daughter, among others, were present. "The robbers wore hoods that obscured their faces" and they were all wielding knives. McKenzie v Greene, 2008 WL 1944032, *3 (SDNY 2008). The robbers subdued and bound W. McKenzie and Green with duct tape. Johnson, who had been in another room, left that room, armed with a pipe, and then "engaged in a violent struggle with two of the robbers;" he was stabbed multiple times and hit with a crutch that was in the apartment. Id. The robbers stole money and jewelry before leaving the apartment. Id.

Wendell McKenzie identified defendant from photographs the same night as the crime (Hearing Mins of October 16, 2000, pp 6, 7, 11). "Two days after the robbery, Johnson saw a person on the street whom he believed to be one of the robbers" and notified the detectives investigating the robbery. 2008 WL 1944032 at * 4. Detective Ramirez arrested defendant. Both Johnson and McKenzie independently identified defendant at a lineup that same day. Id. Defendant was charged with Robbery in the First Degree and other related charges. The next day, however, February 4, 2009, the Bronx County District Attorney's Office declined to prosecute the arrest. In an affidavit in support of declining/deferring prosecution, ADA Sara Jacobson stated that both McKenzie and Johnson told Detective Rios that

they saw a guy on Jackson Avenue who looks more like the guy who robbed them then [sic] the guy they picked out of the lineup last night. Both Donald Johnson and Wendell McKenzie had a conversation with ADA Sara Jacobson at approximately 6:30 p.m., on 2/4/99, and ADA Jacobson explained to them that if they are not sure the defendant is the guy he would be released . . . . ADA inquired if the guy on the street looked more like the guy who robbed them then [sic] the guy identified through PINs computer and lineup. Both Wendell McKenze [sic] and Donald Johnson, understood the implications but said guy on the street looked more like the guy who robbed them than defendant.

Def Exh A; 2008 WL 1944032 at * 4.[FN3] As a result, the case was not processed and defendant was released. [*3]

"On February 9, 1999, the detectives investigating the robbery learned that a fingerprint found on one of the crutches with which Johnson was beaten, matched one of [defendant's] fingerprints." 2008 WL 1944032 at * 4. On March 23, 1999, defendant was again arrested for Robbery in the First Degree and other related charges. The charges were dropped again, however, when Detective Greany made numerous unsuccessful attempts to contact Johnson and Johnson failed to keep an appointment with Greany at the 40 Precinct. The People prepared another affidavit in support of declining/deferring prosecution, stating that "[d]ue to a lack of cooperation from the complainant, the People will not be able to meet their burden at trial, therefore we are declining to prosecute this matter" (Def Exh A). Defendant asserts that the charges were dropped at that time "because the lone fingerprint was insufficient to hold me in custody since it could not be determined when that fingerprint was put on that crutch" (Def Aff ¶ 20).

The Grand Jury Presentation and the Trial

The People ultimately presented the case to the grand jury in November 1999. On November 22, both W. McKenzie and Johnson testified to having identified defendant in a lineup on February 3, 1999 (Def Exh B [EA 10-11, 18-19]).[FN4] The People, however, did not elicit any testimony in the grand jury regarding the fact that both witnesses had subsequently expressed "uncertainty" (2008 WL 1944032 at * 4) about their lineup identifications. On November 29, 1999, the grand jury of Bronx County returned a true bill against defendant and Terrence Stretching for Robbery in the First and Second Degrees, Burglary in the First Degree, and Assault in the Second Degree.[FN5]

Defendant was arrested on December 7, 1999, and was tried by a jury before the Honorable [*4]Robert H. Straus.[FN6] At the trial,

the prosecution introduced evidence, without objection, of the lineup identifications Johnson and W. McKenzie made of [defendant]. The jury [also] learned that the two men had disavowed the identifications and also that Johnson and W. McKenzie were unable to identify [defendant] as a perpetrator of the charged crimes at the time the trial was held.

2008 WL 1944032 at *4. The jury heard evidence that defendant's fingerprint was found on a crutch that had been used to beat one of the victims. People v. McKenzie, 2 AD3d 348, 348 (1st Dept 2003). There was also a defense case: defendant's brother, Khalid McKenzie, testified "that the defendant had previously accompanied him to a card game at the place of occurrence" (Decision of Straus, J., dated January 8, 2001, p 2, attached to this Decision and Order as Exhibit 1), in support of a defense theory that defendant might have left his fingerprint there on some other occasion, 2 AD3d at 348.[FN7] During their deliberations, the jury asked to re-hear the testimony of Wendell McKenzie and Donald Johnson (Jury Note Number 1, attached to this Decision and Order as Exhibit 2). Defendant was convicted on November 8, 2000, of Robbery in the First Degree, two counts of Robbery in the Second Degree and two counts of Burglary in the First Degree.

Post-Trial Proceedings

A.The Motion to Set Aside the Verdict

On December 9, 2000, defendant filed a pro se motion to set aside the verdict and grant a new trial because of newly discovered evidence. Defendant affirmed that "since defendant's trial, the complaining witness, DONALD JOHNSON, spoke with the defendant's family and informed them that the defendant, LATIF McKENZIE, is not the person who had robbed him" (CPL § 330.30 motion ¶ 4). Defendant claimed that Johnson had informed both the police and the District Attorney that, after he had identified defendant in a lineup, Johnson saw someone on the street who looked more like the robber than defendant. Defendant also claimed that Johnson "testified at defendant's trial that defendant is not the person who robbed him." Id. Defendant submitted a sworn statement from Johnson, who stated that he had testified at the trial that he was no longer sure that defendant was involved in the robbery, because after identifying defendant in the lineup Johnson saw someone else "who looked more like the robber than the defendant." Johnson also now recalled having seen [*5]defendant with his brother, Khalid, at the apartment on another occasion. Johnson swore that he had again seen "the person who looked more like the robber" since the conclusion of the trial and he was "[n]ow more than ever . . . sure that the defendant did not commit this crime" (CPL § 330.30 Motion Exh A [Johnson Aff]). Defendant included ADA Jacobson's affidavit in support of declining/deferring prosecution as one of the exhibits to the CPL § 330.30 motion.

The People opposed the motion, arguing that Johnson never identified defendant at trial "and told the jury about his own self doubts as to the identification that he did make at the line-up" (Aponte Answering Aff p 3). The People maintained that, had they put on a rebuttal case at trial, Johnson had been "ready and willing" to testify that he had never seen defendant at any of the card games played in the apartment where these crimes occurred. Moreover, ADA Aponte stated that on December 4, 2000, he had personally observed Johnson in the courthouse accompanied by defendant's brother, Khalid McKenzie. Outside K. McKenzie's presence, Johnson informed Aponte that, with respect to the affidavit attached to defendant's CPL § 330.30 motion,

[Johnson] was approached by the defendant's lawyer and responded yes' to all of the lawyer's questions so that he could be left alone. Mr. Johnson also stated that he had to look out for himself', indicating a concern for his own safety.

Id. p 5. The People categorized Johnson's belief that defendant did not commit the robbery as "utterly unreliable, incredible, and ultimately, irrelevant" (id. at 4).

Justice Straus denied defendant's motion in a decision dated January 8, 2001. The Court noted that Johnson did not identify defendant at trial as the robber and did not affirmatively testify that defendant was not the person whom Khalid McKenzie brought to the apartment on a prior occasion (Exh 1 p 3). The Court also noted that,

after making [the] identification [of defendant at the lineup, Johnson] saw another individual on the street who looked more like the perpetrator and provided the police with this information. The defendant was then released and rearrested only after his fingerprint was recovered from a metal crutch used during the robbery.

Id. p 2. The court found Johnson's partial recantation to be "inherently unreliable" and concluded that even if a new trial were ordered it would not change the result (id.).

Defendant was sentenced on January 8, 2001, as a second violent felony offender, to concurrent, determinate prison terms of 18 years for the crimes of Burglary in the First Degree and Robbery in the First Degree and ten years for the crimes of Robbery in the Second Degree, followed by five years' post release supervision.

B.The Direct Appeal of the Conviction

On June 26, 2003, defendant, represented by the Legal Aid Society, filed an appeal, claiming that the evidence at trial was insufficient to establish his guilt because the complainants had a limited opportunity to view the perpetrators and had disavowed their identifications within 24 hours of making them. Defendant also claimed that there was an opportunity for him to have left his fingerprint in the apartment at some time other than the date of this crime. Finally, defendant argued that the trial court erred in admitting the prior out-of-court identifications, because, since neither Johnson nor McKenzie was able to identify defendant at trial, their out-of-court identifications were not admissible pursuant to CPL § 60.30. Alternatively, defendant argued that because neither [*6]Johnson nor McKenzie was currently certain about his prior out-of-court identification, those identifications were also inadmissible pursuant to CPL § 60.25. Conceding that these last two claims were unpreserved, defendant urged the Appellate Division to reach them either in the interests of justice, or because counsel's failure to make these objections at trial deprived defendant of effective assistance of counsel under both state and federal constitutional standards.

The Appellate Division, First Department, rejected defendant's claims, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning identification and credibility, including its evaluation of the witnesses' inability to make in-court identifications (citations omitted). Moreover, the fingerprint evidence, standing alone, established defendant's guilt beyond a reasonable doubt, notwithstanding his far-fetched theory as to how he may have innocently left his fingerprint on a crutch that was used to beat one of the victims (citations omitted).

People v. McKenzie, 2 AD3d 348, 348 (1st Dept 2003). The Court also rejected defendant's ineffective assistance of counsel claim, holding:

Since counsel made affirmative use of the lineup identifications, coupled with the witnesses' purported disavowals thereof, defendant has not shown "the absence of strategic or other legitimate explanations" for counsel's conduct (citation omitted). In any event, were we to find that counsel's failure was not strategic, we would find that the error did not deprive defendant of a fair trial (citation omitted).

Id. Leave to appeal to the Court of Appeals was denied, 2 NY3d 764 (2004).

C.The First Motion to Set Aside the Judgment of Conviction

On November 23, 2004, defendant, represented by the same attorney who represented him in the Appellate Division, filed a motion to vacate the judgment pursuant to CPL § 440.10(1)(h) on the grounds of ineffective assistance of counsel.[FN8] Defendant argued that counsel was unaware that the out-of-court identifications by W. McKenzie and Johnson were inadmissible at trial, that counsel's failure to object to their admission lacked any strategic reason, and that defendant was therefore deprived of the effective assistance of counsel. The motion was denied by the Honorable Phyllis Skloot Bamberger on April 28, 2005, because defendant's claims were previously determined on the merits by the Appellate Division and there had been no retroactive change in the law relevant to the issue (Decision of Bamberger, J., attached to the People's response to the instant motion as Exhibit 5, p 3).

D.The Federal Habeas Proceeding [*7]

Defendant thereafter brought a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. He again argued that counsel was ineffective for failing to object to the introduction of the witnesses' lineup identifications. The writ was denied. McKenzie v Greene, 2008 WL 1944032 (SDNY 2008). The District Court declined to issue a certificate of appealability. Id. at * 3.

The Present Motion

Defendant now moves, pro se, to vacate the judgment pursuant to CPL §§ 440.10(1)(f) and (1)(h), arguing first that "prosecutorial misconduct occurred during the grand jury proceedings inasmuch as the prosecutor did not inform the grand jurors that the complainants contacted the police and recanted their identifications of defendant" (Def Notice of Motion p 1). In support of this branch of the motion, defendant attached a copy of the affidavit in support of declining/deferring prosecution dated February 3, 1999, as well as the transcript of W. McKenzie's and Donald Johnson's grand jury testimony. Defendant argues further that trial counsel's failure to seek dismissal of the indictment on the grounds of prosecutorial misconduct constituted ineffective assistance of counsel. Defendant claims that, defense counsel apparently failed to examine the grand jury minutes and pretrial documents. If a competent attorney had done so, he would have sought dismissal of the indictment pursuant to CPL 210.35(5) on a clear-cut issue, i.e., prosecutorial misconduct occurred during the grand jury presentment by the prosecutor's failure to disclose evidence to the grand jury that negated defendant's guilt.

Def Mot p 7. Defendant also claims that he is innocent (Def Aff ¶ 2, Def Mem p 3; see also id. p 6).

The People oppose defendant's motion, arguing that it is procedurally barred under CPL §§ 440.10(2)(c) and (3)(c). They also oppose the motion on the merits, arguing that they were not required to "disclose to the grand jury that witnesses, subsequent to their identification of defendant, expressed doubt as to that identification" (Johnson Mem p 3). They claim further that defendant was not prosecuted on the basis of the lineup identifications alone, because the "prosecution was also aware that fingerprint analysis revealed that a latent print recovered from the bottom of the crutch used to beat [the victim] was left by defendant's right little finger (citation omitted)" (Johnson Mem p 4). Finally, the People argue that defense counsel's failure to challenge the indictment where the "prosecutor simply chose to not elicit testimony that went to the credibility of the witnesses, and also was aware of fingerprint evidence linking defendant to the crime" was not ineffective assistance, because any such motion would have been "futile" (id. p 6).

Analysis

Defendant's Claims of Ineffective Assistance and Prosecutorial Misconduct Are Procedurally Barred

CPL § 440.10 contains both mandatory and discretionary procedural bars. CPL § 440.10(2)(c) provides that,

the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment, to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or [*8]issue upon an appeal actually perfected by him.

CPL § 440.10(3)(c) provides that,

the court may deny a motion to vacate the judgment when . . . [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so. Although the court may deny the motion under any of the circumstances specified in this subdivision, in the interest of justice and for good cause shown it may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment.

Defendant concedes that his appellate attorney possessed "the grand jury transcripts containing the complainants' testimonies" (Def Aff p 3), which were also provided to defense counsel prior to trial (id. p 9). He was thus plainly in a position to raise his prosecutorial misconduct claim on direct appeal. People v Maldonado, 34 AD3d 497 (2d Dept 2006) (because defendant could have raised claim of prosecutorial misconduct before the grand jury on direct appeal, he could not raise it on CPL § 440 motion), lv den, 8 NY3d 847 (2007). He did not do so, perhaps because appellate counsel concluded that any such claim would have been futile (see infra, pp 14-16). In any event, defendant offers no explanation for his failure to have raised this claim on appeal. Defendant actually raised a claim of ineffective assistance of trial counsel in the Appellate Division, albeit for other alleged deficiencies (Deft's Appellate Division Brief at pp 38-40), and the Appellate Division rejected the claim. He is silent as to why he did not include his present claim of ineffective assistance at that time. Because defendant could have raised these claims on direct appeal, but unjustifiably failed to do so, they are procedurally barred under CPL § 440.10(2)(c).

Defendant was certainly in a position to raise these claims on his first CPL § 440 motion, but he did not, and he has not shown good cause for his failure to do so. Moreover, for the reasons set forth more fully below, this Court finds that the present motion is not otherwise meritorious. Accordingly, defendant's present claims of prosecutorial misconduct and ineffective assistance of counsel are also procedurally barred under CPL § 440.10(3)(c).

In Any Event, These Two Claims Are Meritless

Even if this Court were to reach defendant's first two claims despite the procedural bars, the Court would deny them.

First, as to the claim of prosecutorial misconduct, defendant relies on heavily on People v. Pelchat, 62 NY2d 97 107 (1984).

It is familiar doctrine that a prosecutor serves a dual role as advocate and public officer. He is charged with the duty not only to seek convictions but also to see that justice is done. In his position as a public officer he owes a duty of fair dealing to the accused and candor to the courts, a duty which he violates when he obtains a conviction based upon evidence he knows to be false. Such misconduct may impair a defendant's due process rights and require a reversal of the conviction (citations omitted). It goes without saying that this duty rests upon the prosecutor during pretrial proceedings (citations omitted) and the proceedings related to indictment both at presentment and afterwards.

People v. Pelchat, 62 NY2d at 107 (reversing conviction and dismissing indictment, where prosecutor permitted defendant to plead guilty without disclosing that grand jury witness had [*9]informed prosecutor that he had not observed defendant engage in criminal conduct and had not intended to testify that he had). The Court explained that, "[j]ust as [the prosecutor] could not sit by and permit a trial jury to decide a criminal action on evidence known to be false, he could not permit a proceeding to continue on an indictment which he knew rested solely upon false evidence (citations omitted)." Id. Similarly, in People v. Alexander, 136 AD2d 332, 336 (1st Dept 1988), the Appellate Division, First Department, reversed the conviction after trial and dismissed the indictment, holding that where the officer's grand jury testimony was at a minimum "misleading and inaccurate," the prosecutor had an obligation either to obtain a superseding indictment or disclose the facts and request permission to resubmit the case. " The integrity of the criminal justice system [is] impaired if a prosecution may proceed even after the District Attorney learns that jurisdiction is based upon an empty indictment.'" Id. at 337, quoting Pelchat. But "[d]ismissal of an indictment because its integrity has been impaired within the meaning of CPL § 210.35(5) is an extreme remedy and requires that the proceedings were impaired to such a degree that the defendant may be prejudiced (citations omitted)." People v. David, 22 Misc 3d 1129(A), * 4 (Sup Ct, Kings County 2008) (Parker, J.).

Defendant speculates that "[i]t is possible that the prosecutor intentionally withheld the complainants' recantations from the grand jurors, else there may have been insufficient evidence to indict" (Def Mem p 9), but he does not claim that the prosecutor knowingly presented false evidence to the grand jury or that Johnson and W. McKenzie perjured themselves about previously identifying him as one of the robbers. Defendant claims only that the People failed to "disclose to the grand jurors evidence that negated [his] guilt" (Def Aff p 2). It is well established, however, that " the People maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused' (citations omitted)." People v. Scruggs, 201 AD2d 514, 515 (2d Dept 1994) (rejecting defendant's claim that the People's failure to present exculpatory evidence to the grand jury mandated vacatur of conviction after trial and dismissal of indictment, where evidence in question went mainly to complainant's credibility), lv denied, 83 NY2d 1007 (1994). Indeed,

[t]he People do not have the obligation to present to the Grand Jury every piece of evidence which they possess against a suspect, nor must every matter which may have a tendency to reflect upon the credibility of a witness be revealed. The Grand Jury proceeding is not intended to be adversarial in nature or a minitrial of the individual suspected of committing a crime. An indictment will not be dismissed provided the prosecutor did not withhold any information from the Grand Jury which would have materially influenced its investigation (citation omitted).

People v. Suarez, 122 AD2d 861, 862 (2d Dept) (reversing motion court's order dismissing indictment based on People's failure to disclose to the grand jury witness's inconsistent statements, because inconsistencies would not have had a material influence upon the grand jury and, "as credibility factors, should more appropriately be reserved for presentation to the petit jury"), lv denied, 68 NY2d 817 (1986).

Evidence that a grand jury witness recanted an earlier identification of a defendant as the perpetrator or failed to identify a defendant during an identification procedure bears only on the credibility of the witness. As such, it will not be held to materially influence the grand jury's investigation and the failure to present such evidence to the grand jury does not render the grand jury [*10]proceeding defective. People v. Dillard, 214 AD2d 1028 (4th Dept 1995) (prosecutor's failure to present exculpatory evidence that surviving victim had not identified defendant from photo array and eyewitness recanted his earlier statement that defendant was perpetrator did not render grand jury proceeding defective; such evidence merely related to credibility, a collateral issue that generally does not materially influence grand jury investigation). See also People v Martin, 195 AD2d 293, 294 (1st Dept 1993) (rejecting defendant's claim that recantations of witnesses' grand jury identifications of defendant rendered original grand jury testimony perjurious and impaired proceedings); People v David, supra, 22 Misc 3d 1129(A), *4 (rejecting claim of prosecutorial misconduct in grand jury, where People allowed witness to testify that defendant cut him with box cutter even though witness had identified someone else from lineup, because "[t]hat evidence would not have eliminated a needless or unfounded prosecution' [citation omitted]," and also rejecting as procedurally barred claim that counsel was ineffective for not raising prosecutorial misconduct claim before trial court); People v. Kelly, 2003 WL 21295298, *4 (Sup Ct, Bronx County 2003) (Webber, J.) (denying defendant's motion to dismiss indictment where defendant alleged that, after witness's initial interview but prior to testimony in the grand jury, witness recanted parts of his statement; People were under no obligation to present the conflicting testimony or to inform the Grand Jury of the conflict; recantation went to credibility of complaining witness and would not have materially influenced the grand jury's investigation); cf. People v. Kaba, 177 AD2d 506, 507 (2nd Dept1991) (reversing lower court's order dismissing indictment; "[t]he fact that the confidential informant may have been intoxicated or that he had a motive to lie are issues that merely address the witness's credibility and are collateral to the basic issue the Grand Jury must decide . . . . Evidence of these collateral issues is not of the type that materially influences a Grand Jury investigation [citation omitted]"); People v. Bartolomeo, 126 AD2d 375, 396 (2d Dept) (fact that prosecutor did not inform grand jury that promises of immunity had been made to witnesses did not affect validity of grand jury proceedings, noting that this evidence was brought before petit jury at trial), lv denied, 70 NY2d 702 (1987); People v. Holmes, 118 AD2d 869 (2d Dept 1986) (improper to dismiss indictment for People's failure to elicit witness's prior inconsistent statement before grand jury). Accordingly, the People here had no obligation to present testimony of the witnesses's "purported disavowals" (People v. McKenzie, 2 AD3d at 348) of their line-up identifications to the grand jury. Defendant's claim of prosecutorial misconduct fails.

So too does his claim of ineffective assistance of counsel. "It is well settled that [t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's failure . . . . Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment' [citation omitted]." People v Barboni, 21 NY3d 393, 405-06 (2013). Because the People had no obligation to present the witnesses' disavowals of their identifications before the grand jury, counsel cannot have been ineffective for failing to move to dismiss on this ground, particularly where prior defense counsel had already made an unsuccessful motion to dismiss the indictment if exculpatory evidence was not presented to the grand jury (see supra, fn 6). Moreover, counsel made strategic use at trial of the witnesses' disavowals. Therefore, this branch of defendant's motion to vacate the conviction is meritless.

Finally, Defendant's Claim of "Actual Innocence" is Summarily Denied

In a case of first impression, the Appellate Division, Second Department recently held that [*11]"a freestanding' claim of actual innocence is cognizable in New York, and that a defendant who establishes his or her actual innocence by clear and convincing evidence is entitled to relief under" CLPL § 440.10(1)(h). People v Hamilton, __ AD3d __, 2014 WL 128496, * 1 (2d Dept 2014). The Court explained that,

The constitutional violation on a claim of actual innocence is that the defendant is subject to a criminal conviction while he or she is in fact innocent. Mere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty (citations omitted).

A prima facie showing of actual innocence is made out when there is " a sufficient showing of possible merit to warrant a fuller exploration'" by the court (citation omitted).

Hamilton, 2014 WL 128496 at *9, (emphasis supplied). In Hamilton, the defendant made a prima facie showing of actual innocence "based upon evidence of a credible alibi and manipulation of the witnesses, and the fact that the witness against him has recanted (citation omitted)." Id. Accordingly, the Appellate Division held that there should be a hearing on his claim of actual innocence.

Defendant here asserts that he is innocent (Def Aff p 1), that "[a]n innocent man is incarcerated for a crime he did not commit" (Def Mem p 3), and that "an innocent man is incarcerated due to prosecutorial misconduct, and a defense attorney's failure to seek dismissal of the indictment" (id p 6). This claim rests on Johnson's and W. McKenzie's disavowals of their lineup identifications, defendant's claim that the fingerprint evidence "was not the coup de grce" (Def Mem p 3), and Khalid McKenzie's testimony that, according to defendant,

would certainly explain how defendant's fingerprint was put on the metal crutch in the apartment, and may explain why Johnson and Wendell McKenzie mistakenly identified defendant at the lineup, i.e., they recognized defendant from a prior occasion (the card game) and assumed that scanty recognition was from the home invasion.

Def Mem p 4. But crucially, the jury heard it all and rejected it. In sharp contrast, the defendant in Hamilton had "evidence of a credible alibi" that he was in Connecticut, 2014 WL 128496 at *9, but neither of his two noticed alibi witnesses testified at trial. Moreover, after the trial both the prosecution's main witness and a potential alibi witness claimed to have been threatened by police officers, either to testify falsely at trial or not to testify at all, id. at** 1, 2. Defendant does not make any similar claims here. Moreover, the fact that he now swears, "I was there [at the apartment] with Khalid and his girlfriend [on some other occasion] (Def Aff ¶ 25)," does not add anything, because he does not state that he ever handled the crutch or provide any theory as to how his fingerprint was found on it. All that remains is a "far fetched" explanation already rejected by the jury and the Appellate Division.

In sum, defendant has not presented a claim of actual innocence that warrants a fuller exploration by the Court. Instead, he raises only "[m]ere doubt as to [his] guilt," 2014 WL 128496 at * 9. Accordingly, no hearing is required, and this branch of the motion is also denied.

Conclusion

For all of the foregoing reasons, the motion to vacate the judgment is denied in all respects.

Dated:Bronx, New York

January 23, 2014

__________________________________

Miriam R. Best

Acting Supreme Court Justice Footnotes

Footnote 1:This Court has reviewed: defendant's present motion and attached exhibits; the People's response and attached exhibits; the Court file, including defendant's pro se motion to set aside the verdict pursuant to CPL § 330.30, the People's response and the decision of Justice Straus denying the motion; defendant's 2004 motion to vacate the judgment of conviction pursuant to CPL § 440.10, the People's response and the decision of Justice Bamberger denying the motion; a complete copy of the stenographic minutes of the grand jury presentation, which the Court requested from the People; and the published decisions of the Appellate Division, First Department and the U.S. District Court for the Southern District of New York on defendant's appeal and petition for a writ of habeas corpus. This Court's recitation of the facts of the crime and the trial proceedings comes largely from the one set forth by the U.S. District Court in McKenzie v Greene, 2008 WL 1944032 (SDNY 2008).

Footnote 2: Terrence Stretching was indicted together with defendant under Indictment Number 6482-1999. From the materials the Court has reviewed, it does not appear that a third perpetrator was arrested.

Footnote 3:According to the People, "McKenzie maintained that he did not see the man on the street, but he nonetheless expressed doubt about his prior identification because Johnson should know' because, unlike McKenzie, he did not have duct tape on his eyes at the time of the robbery (WM: 136, 152, 153-154). McKenzie was also uncertain of his prior identification because the robbers' faces were largely covered (WM: 154)" (People's Exh 1 pp 19-20; see also Def Aff ¶ 17). As detailed by the U.S. District Court, "The next day, Johnson and McKenzie went back to the police precinct to express uncertainty to a detective about the respective lineup identifications they had made because, while walking in Bronx County, Johnson noticed a man who looked more like the robber than the person whom he had identified when viewing the lineup." 2008 WL 1944032 at * 4.

Footnote 4: W. McKenzie testified that on the evening of February 1, 1999, at approximately 8:00 PM he identified both defendant and Terrence Stretching during an identification procedure (Def Exh B [EA 9-10]). He also testified that on February 3, 1999, he participated in an identification procedure and identified the person seated in seat number one (id. [EA 10-11]). Johnson testified that he also participated in an identification procedure on February 3, 1999, and identified the person seated in seat number one (id. [EA 18-19]). Latif McKenzie was the person seated in seat number one (Deft's Appellate Division Brief, attached to the People's response to the instant motion as Exhibit 1, p 18). Notably, Johnson told the grand jury that he recognized defendant at the check cashing store prior to the robbery, that approximately two to three months prior to the robbery defendant had asked Johnson if he was straight, and that thereafter Johnson saw defendant every other day when he would go through the block (Cypress Avenue and 141st Street) (Def Exh B [EA 20-22]). Johnson testified that, "I mean that's why it wasn't too hard for me to point him out, you know, because of the statement he brought our attention, you brought us together. I'm going to recognize you, you're going to recognize me" (id. [EA 22]). Johnson also testified that on either February 2 or February 3, 1999, he saw defendant and called the police (id).

Footnote 5:On September 11, 2000, Stretching pled guilty to Attempted Robbery in the Second Degree and received a sentence of two years' imprisonment followed by two years' post release supervision.

Footnote 6:Defendant was initially represented by the Legal Aid Society, which moved, inter alia, to have the court inspect the indictment and dismiss it "if exculpatory evidence was not presented to the Grand Jury." Before the pre-trial hearings, defendant retained private counsel, James Koenig, Esq., who represented him at the hearings and trial.

Footnote 7:The jury learned that Khalid McKenzie had been convicted for selling 1,500 vials of crack cocaine on elementary school grounds; when he was arrested at his home, police found an additional 510 vials of crack, a 12-gauge sawed-off shotgun and a .24 caliber pistol with ammunition. K. McKenzie testified that he hoped his testimony would help his brother. With respect to the time when K. McKenzie testified that defendant had been with him at a card game in the apartment, K. McKenzie also testified that he did not remember seeing any crutches in the apartment (Deft's Appellate Division Brief, pp 21-22; Peo's Appellate Division Brief, attached to the People's response to the instant motion as Exhibit 2, pp10-11).

Footnote 8:The People state that defendant was represented by "new counsel" on the CPL § 440 motion (Johnson Aff ¶ 7). A review of the defense briefs filed in the Appellate Division and the Supreme Court, however, shows that Bonnie C. Brennan, Esq., of the Legal Aid Criminal Appeals Bureau represented defendant both on the direct appeal and on the § 440 motion (see Exh 1 and Exh 3 of the People's response to the instant motion). Indeed, according to the public Attorney Registration page of the website of the New York State Unified Court System, Ms. Brennan is still an attorney in the Legal Aid Criminal Appeals Bureau (see Exhibit 3 of this Decision and Order).