People v Moses

[*1] People v Moses 2018 NY Slip Op 50282(U) Decided on January 11, 2018 Supreme Court, Kings County Riviezzo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2018
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Sundhe Moses, Defendant.



13565/1995
Dineen A. Riviezzo, J.

Defendant moves to vacate his judgment of conviction pursuant to Criminal Procedure Law ("CPL") §440.10(1)(g) based on new evidence that he has discovered since his conviction. The new evidence consists of: (1) the testimony of Sharron Ivory ("Ivory"), who recanted his trial testimony regarding his identification of the defendant; (2) the testimony of Terrence Morgan ("Morgan"), a separately tried co-defendant acquitted of the murder who now asserts that defendant was not involved in the murder; (3) the affidavit of Octavia Moore ("Moore"), who recanted her trial testimony regarding her identification of the defendant; and (4) impeachment material concerning former Detective Louis Scarcella ("Detective Scarcella"). Defendant asserts that the new evidence undermines the evidence presented at trial and is sufficient for this Court to conclude that, had the jury known of the evidence, there was more than a reasonable likelihood that the verdict would have been different.

The People oppose the motion in its entirety. Specifically, the People assert that the Court should not credit as reliable the recantations of Ivory and Moore and should not credit the entirety of Morgan's hearing testimony. The People further argue that the impeachment material concerning Detective Scarcella, under the facts of this case, is insignificant in light of defendant's own more recent version of events.

This Court conducted a hearing on defendant's motion on February 3, February 6, February 8, February 21, May 8, May 26 and June 26, 2017. For the reasons set forth below, the Court grants defendant's motion vacating his judgment of conviction entered on April 14, 1997.

Background and Procedural History

In 1995, when defendant Sundhe Moses was nineteen-years-old, he was charged by Kings County Indictment No. 13565/1995 with three counts of murder in the second degree, one count of reckless endangerment in the first degree, and multiple counts of assault and weapon possession. These charges stemmed from a shooting on August 27, 1995 at 1750 Prospect Place in Kings County wherein two males exited a vehicle and shot into a crowd of people. Four-year-old Shamone Johnson was struck by two bullets and died. Alfonso Harris, Charee Mitchell, Lamont Moore and Alex Moore were wounded.

On August 30, 1995, defendant was identified in a photo array by two eyewitness, Sharron Ivory and Octavia Moore. On September 1, 1995, at approximately 9:00 a.m., Detective [*2]Louis Scarcella and another officer picked defendant up at his home, and, according to the prosecution, brought him voluntarily to the Homicide North Detective Squad. Thereafter, defendant was interviewed at the precinct by several teams of detectives without being read his Miranda warnings. He initially denied participating in the homicide and offered the alibi that he would later offer at trial. During this time, he was the subject of a lineup. Moore identified defendant in the lineup, but was unable to identify him at trial. In a later lineup, Ivory (who wore a paper bag over his head during the procedure) also identified defendant in the lineup, but was unable to identify the defendant at trial.

Besides the pre-trial identifications by Moore and Ivory, the only other evidence pointing to the defendant as one of the shooters was an inculpatory statement that he eventually made to Detective Joseph Falcone after being read Miranda warnings at almost 4:00 p.m. on the afternoon he was brought to the precinct. The statement by defendant, which was handwritten by Detective Falcone, was relatively brief and stated as follows:

We pulled up in a burgundy car. I was with Travis and another guy, who I didn't know. We came from Ft. Greene. When we got there, me and Travis got out of the car. I checked the area and told Travis everything was cool. Then Travis pulled out a .38 and shot himself as he pulled it. Travis ran, Travis ran to the car and I had a Smith & Wesson, which I fired one time in to the crowd. The other guy got out of the car and fired four or five times into the crowd.We then got in the car and went back to the fort. I was in the back seat, Travis in the front and the other guy drove. I didn't know the driver before we went to Brownsville to do this.

Defendant, however, testified on his own behalf at trial and stated that his statement was coerced. Specifically, defendant stated that Detective Scarcella and other detectives threatened him but only Detective Scarcella struck him in the face, choked him while pressing his head against a wall and blew cigar smoke in his face. Defendant testified that other detectives held him down. Defendant testified that he was frightened and that he made the statement because of Detective Scarcella's actions. Detective Scarcella testified at the trial that his involvement in the case was limited to picking defendant up at home and transporting him to the detective squad after which he left the precinct. Defendant also offered an alibi witness, the mother of a friend, who testified that defendant was in her apartment at the time of the homicide. Shooting victim, Alex Moore, the brother of Octavia Moore, testified that he selected a filler during one of defendant's lineups. Lastly, defendant's sister offered a version of events surrounding defendant's apprehension in their apartment which contradicted Detective Scarcella's assertion that defendant voluntarily agreed to come to the precinct.

After a jury trial in March of 1997, defendant was convicted of depraved indifference murder in the second degree, four counts of assault in the second degree, and two counts of criminal possession of a weapon in the second degree. He was sentenced to fifteen years to life for the murder conviction, consecutive sentences of two and one-third to seven years for each of the assaults and five to fifteen years for each of the weapon possession counts.

Defendant's conviction was reviewed on appeal by the Appellate Division, Second Department. The Court held that defendant's contention that the evidence was legally insufficient to establish his identity as the perpetrator of the crimes was unpreserved for appellate [*3]review. Further, the Court held that "viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt" and "the verdict of guilt was not against the weight of the evidence" (People v Moses, 262 AD2d 334 [2d Dept 1999]).

Defendant remained incarcerated until December 2, 2013, when he was released from prison by the New York State Parole Board. In May of 2013, the Conviction Review Unit of the Kings County District Attorney's Office ("KCDA") advised defendant that his case was under review and ultimately determined that defendant's conviction should remain undisturbed.

Defendant maintains that his trial testimony, made back in 1997 when he was twenty-one years old, was the harbinger of allegations that were yet to surface about the conduct and tactics of Detective Scarcella. Since 2013, the Kings County Supreme Court has vacated more than ten convictions, some with the consent of the KCDA, that either directly or indirectly involved Detective Scarcella. Many of the transcripts related to those proceeding were received into evidence during this Court's hearing.

Summary of Hearing Testimony

I. Recantation of Identification Witnesses

In support of his motion, defendant offered the testimony of the only two original identification witnesses, Sharron Ivory and Octavia Moore. Since the trial, both witnesses have recanted, in whole or in part, their identification of defendant that was made prior to trial. Neither eyewitness identified the defendant at trial.

Sharron Ivory

Sharron Ivory was nineteen-years-old at the time his cousin, Shamone Johnson, was shot and killed. At trial, with regard to the photo array, Ivory testified that on a scale of 1 to10 he was only a 7 or 8 in his confidence that defendant was the shooter. Ivory did identify the defendant in the lineup, but testified at trial that he recognized him only from the photo array and, in fact, thought that he was supposed to point out the same person that he saw in the array. Ivory agreed to participate in the lineup procedure only after placing a paper bag on his head to hide his identity. There was further testimony at the trial indicating that Ivory was unsure in both the Grand Jury and at trial which of the two shooters he was actually identifying.

At the hearing, Ivory testified that he has been convicted of murdering his ex-girlfriend's friend and of injuring his ex-girlfriend and their one-year-old child. He has been incarcerated since 2001 and is serving a sentence of twenty-five years to life. Ivory denied having any expectation of assistance from defendant's attorneys on his own case.

Ivory testified that he viewed six photos shortly after the shooting at the precinct. He stated that he did not recognize anyone. The officers then asked him to look at a specific photograph. Ivory did not recognize the person in that photograph. Ivory suggested to the police that he might be able to recognize the shooter if he could see that person face-to-face. Ivory testified that he believed the officers were encouraging him to select a certain photo because they already knew the identity of the shooter. Of the photo pointed out to him by the police, he acknowledged that on a scale of 1 to 10 his confidence level was 7 or 8.

When Ivory viewed the lineup, he was very nervous and told the officers he did not want to participate. He was worried about his own safety, but also felt that he was being pressured by his family to make an identification. An officer suggested that he wear a brown paper bag over [*4]his head while viewing the lineup and Ivory agreed. Ivory testified that when he viewed the lineup the only person he recognized was the person he had previously selected from the photo array. Ivory testified that he selected that person from the lineup because he wanted it all to be over and that he believed that the officers were signaling to him which person was the shooter. He stated that the person he selected in the lineup did not look similar to the shooter that he was able to see at the time of the crime. The shooter was light in skin-tone and taller than the person he selected at the lineup.

Ivory claimed that prior to testifying at trial he tried to tell the prosecutor that he did not want to testify, although he never told the prosecutor that the reason for his reluctance was that he knew the defendant wasn't the shooter. He claims that he told his mother who told him to do the right thing, but never told anyone else until defendant's lawyers contacted him. When he testified at the trial, Ivory stated he did not identify defendant because he wasn't the shooter. In all of his dealings with the prosecution, throughout both defendant's trial and the trial of Terrence Morgan, he never told them that defendant was not the shooter.

Ivory explained at the hearing that he was very reluctant to participate with the prosecution and even agreed to be handcuffed and placed in a police car when being transported to the precinct from his home. When asked to explain his concerns, he stated: "Because the whole thing goes back to why we rushed this through. My aunt, everybody wanted me to pick somebody. They want somebody to pay for this. But the streets say, like, yo, don't say nothing, keep your mouth shut, so I'm caught in the middle of that." He further explained that his family wanted someone to pay and believed that if the police had a suspect that "there is a hundred percent chance" that the police had the person responsible for the shooting.

Octavia Moore

Octavia Moore was unable to identify defendant at trial. However, she did identify him in both the photo array and the lineup. As with Ivory, there was evidence at the trial that Moore was unsure of which shooter she was actually identifying during the numerous times she testified in the Grand Jury and at the trials.

On August 9, 2013, Moore submitted an affidavit in support of defendant's motion to vacate his conviction. Specifically, she stated that she was "shown a book of photos, not a photo array" and she told detectives that she did not recognize anyone in the photos from the shooting. Her affidavit further states that "I remember also doing a lineup. I know I didn't say I knew that any of the people in the lineup for sure was the shooter . . . I remember saying just that he looked familiar. He was a tall guy with an afro." Finally, she stated that "when I had to testify at trial, I didn't recognize the guy sitting there. It was not the same guy that I said looked familiar in the lineup. I thought I had picked out the other shooter."

On August 29, 2013, Moore recanted her recantation during a taped interview with the CRU. Moore remembered identifying the defendant in the photo array and lineup and agreed to stand by her trial testimony. She explained that she completed the August 9th affidavit for the defendant because her children were afraid when defense counsel came to her apartment. Nevertheless, Moore maintained that she did not identify anyone at trial because "the guy in the courtroom looked different" than the person she identified in the lineup.

On February 21, 2017, at the hearing in the instant matter, Moore came to Court pursuant to a material witness order. She was provided with an attorney and initially agreed to testify, but [*5]before coming into the courtroom she changed her mind. Defense counsel chose not to request that the Court compel her to testify after meeting with her and her counsel and observing her mental state. Shortly thereafter, but before she was released by the Court, Moore threw a cell phone at a news photographer, physically attacked him and was arrested.

II. Testimony of Separately Tried Co-Defendant

Defendant offered the testimony of Terrence Morgan who was acquitted of the murder in a separate trial, but convicted of criminal possession of a weapon.

Terrence Morgan

At the time of the instant hearing, Terrence Morgan was employed at a sheet metal company and resided with his wife in Queens. Morgan has two prior convictions. Morgan was tried separately from the defendant and was acquitted of the murder charges stemming from the shooting at 1750 Prospect Place. He was, however, convicted of criminal possession of a weapon and was sentenced to five to fifteen years in prison. He was released in 2000. In 2002, Morgan pleaded guilty to criminal possession of a weapon and served time in a federal penitentiary.

Morgan testified that in August 1995 he was nineteen-years-old. He lived around the corner from defendant. They went to high school together, saw each other every day and were best friends. Morgan testified that during the summer of 1995, after Ben O'Garra was murdered, a dispute began between his neighborhood and another rival Brooklyn neighborhood. The dispute resulted in numerous shootings between Morgan's housing project and the project where the person who was believed to have killed Ben lived.

At some point, Morgan was asked to participate in a shooting in revenge for the death of Ben O'Garra. He testified that on August 27, 1995, he was picked up by a car and driven to Brownsville with an unknown "younger dude"and Juju, a drug dealer he knew from the neighborhood. He stated that defendant Moses was not with him in the car. According to Morgan, Juju was murdered after the shooting.

Morgan understood at the time that they were going to Brownsville to revenge Ben O'Garra's death. Morgan stated that Juju gave him a .38 caliber handgun. Both he and Juju got out of the car and shot at the crowd of people. Morgan admitted that as he was pulling the gun out he shot himself in the right thigh. He did not remember how many times he fired his gun and he did not know whether he hit anyone. After the shooting, he ran back toward the car and they drove off. Morgan testified that he gave the gun to the other person in the car and then got a cab to Beth Israel Hospital in Manhattan where he was treated for a gunshot wound. He was arrested and taken to the precinct upon his release from the hospital.

According to exhibits in evidence at the hearing, Morgan gave a far more detailed confession to the police than the statement that defendant was alleged to have given. The confession was consistent with his hearing testimony, although at the time of his confession he claimed that he did not know the individuals who committed the crime with him. He later provided a sworn affidavit to the defense as part of defendant's CPL §440 application that was also fairly consistent with what he told the police. Only later, when he spoke to CRU, did Morgan identify one of the shooters as Juju. However, he has never stated that defendant participated in the crime with him.

Morgan remained unequivocal in his statement that defendant was not involved in the [*6]shooting. Morgan's testimony at the hearing was inconsistent, in some respects, with his statement to the CRU, such as whether or not he told his trial attorney about Moses' innocence and whether Juju was the driver or the passenger. His motivation for coming forward now is to "tell the truth so he (Moses) can be free from all this."

III. Impeachment Evidence of Detective Louis Scarcella

Defendant offered two witnesses and hundreds of pages of exhibits pertaining to possible impeachment evidence of Detective Scarcella.

Detective Joseph Falcone

At defendant's trial, Detective Joseph Falcone testified that only he and his partner, Detective DeRita, were present during the interrogation of the defendant which occurred at approximately 3:45 p.m. He knew that other detectives had spoken to the defendant previously and that no one had read Miranda warnings to the defendant. Detective Falcone read defendant his Miranda warnings and asked defendant to sign the Miranda form. Defendant repeatedly denied knowledge of the shooting. Detective Falcone told defendant that he had been selected from a photo array by two people and that Terrence Morgan had also been arrested. Defendant continued to deny involvement in the shooting.

Detective Falcone testified that thirty to forty minutes into the interrogation defendant told Falcone that he would tell him what happened. According to Detective Falcone, defendant told him that defendant, Terrence Morgan and a third person he did not know pulled up in a burgundy car from Ft. Greene, that he and Morgan got out of the car and checked the area. Morgan then shot himself and ran back to the car. Defendant fired into the crowd. The third person got out and fired three or four times. All three returned to Ft. Greene in the car. Detective Falcone took notes and the detectives and defendant signed the notes. Detective Falcone also transcribed the notes into a DD5 which defendant also signed.

At the hearing, Detective Falcone testified consistently with his trial testimony. However, he further stated that he saw Detective Scarcella with defendant at the precinct between 8:00 and 9:00 a.m. on the morning of September 1, 1995 and that he left shortly thereafter to go to court or to the KCDA. When he returned to the squad at approximately 3:00 p.m. that day, Detective Falcone specifically recalled seeing Detective Scarcella there.

Detective Louis Scarcella

At defendant's trial, Detective Scarcella testified that he and Sergeant Donald Reilly went to defendant's home on September 1, 1995, to pick him up for questioning. He testified that he was granted permission to enter by defendant's sister and was escorted to defendant's room where he found him asleep. He briefly patted defendant down over the blankets to check for weapons. After allowing defendant to use the bathroom and brush his teeth, defendant voluntarily agreed to go to the precinct for questioning. After transporting defendant to the 90th Precinct, Detective Scarcella testified that he had no further involvement in the case.

At the hearing, Detective Scarcella's testimony about his involvement in the case was consistent with his trial testimony. He further testified that when he arrived at the precinct with the defendant, Detective Louis Martinez took over and that he left the precinct to go to the KCDA for trial preparation. Contrary to Detective Falcone's testimony, Detective Scarcella claimed that he never returned to the precinct.

At the hearing, Detective Scarcella was confronted with his involvement in numerous [*7]convictions that the Kings County Supreme Court has vacated such as Jabbar Washington; Vanessa Gathers; John Bunn; Shabaka Shakur; Rosean Hargrove; Roger Logan; David Ranta; Derrick Hamilton; Robert Hill; Alvena Jennette; and Darryl Austin. The Court need not summarize the entirety of that testimony here. Rather, the purpose of the testimony was to demonstrate that defendant now has a good faith basis, that did not exist in 1997, to impeach Detective Scarcella. That impeachment testimony consists of factual findings in the judicial opinions in the cases cited above, as well as public statements issued by the KCDA in support of motions to vacate some of these convictions. The nature of this impeachment testimony is well documented and consists of, for example, a determination by Hon. Desmond Green in the case of People v. Lewis Holmes a.k.a. Shabaka Shakur, dated May 29, 2015, that Detective Scarcella has a "propensity to embellish or fabricate statements." Judge Green further concluded that there was a "reasonable probability that the alleged confession of defendant was indeed fabricated" by Detective Scarcella. Another example is statements made by the KCDA on July 12, 2017, in support of the motion to vacate the conviction of Jabbar Washington in which the KCDA asserted that Detective Scarcella "intentionally and improperly" testified to a non-responsive statement to make it falsely appear as if a witness had identified Washington as the perpetrator in the lineup rather than as someone she knew from the neighborhood. Yet, a third example, is Detective Scarcella's procurement of the informant, Teresa Gomez, who the KCDA called as an eyewitness in at least three homicide cases that have now been overturned while she claimed to have been an eyewitness to no less than six homicide cases. As the KCDA now acknowledged in the vacatur proceedings of People v Robert Hill, (Sup. Ct Kings Co. Ind. No. 2304/1987), Gomez "was certainly a troubled young person, hopelessly addicted to drugs, criminal in her conduct, for the most part increasingly erratic, in terms of her accounts." The KCDA concluded that "the use of her as a witness . . .was probably improvident, and certainly impair[ed] the integrity of the jury fact finding process."

During the hearing, Detective Scarcella denied most of the conduct he has been accused of either directly or indirectly by other judges and the KCDA. However, he did admit to abusing judicial take-out orders by bringing incarcerated cooperating witnesses out into the community for meals and familial and conjugal visits.

Discussion

Pursuant to CPL §440.10(1)(g), the court may vacate a judgment when

new evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, 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; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence

(CPL §440.10(1)(g)). Newly discovered evidence must meet the following requirements: 1. It must be such as will probably change the result if a new trial is granted;2. It must have been discovered since the trial;3. It must be such as could have not been discovered before the trial by the exercise of due diligence;4. It must be material to the issue;5. It must not be cumulative to the former issue; and,6. It must not be merely impeaching or contradicting the former evidence.

(People v Deacon, 96 AD3d 965, 967 [2d Dept 2012], quoting People v Salemi, 309 NY 208, 216, 128 N.E.2d 377 [1955] [internal quotation marks omitted]; see People v Malik, 81 AD3d 981, 981-982, 917 N.Y.S.2d 648 [2d Dept 2011]; People v Tankleff, 49 AD3d 160, 179, 848 N.Y.S.2d 286 [2d Dept 2007]).

Defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL §440.30[6]). "Implicit in th[e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible" (People v Tankleff, 49 AD3d at 182 [internal quotation marks omitted]; see 34B NY Jur 2d, Criminal Law: Procedure § 3476 at 42; People v Mazyck, 118 AD3d at 730).

At the outset, no one piece of evidence at this hearing, standing alone, would have been sufficient for this Court to grant this CPL §440 motion. Rather, it is the cumulative effect of all of the new evidence which convinces this Court that there is a reasonable probability that had the evidence been known to the jury the result would have been more favorable to the defendant (CPL §440.10(1)(g)).

Initially, the Court recognizes that recantation evidence is considered unreliable (People v Jenkins, 84 AD3d 1403 [2d Dept 2011]). When considering recantation evidence the Court must consider the following factors: (1) the inherent believability of the substance of the testimony; (2) the witness's demeanor; (3) the existence of any evidence corroborating testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie (Id.; People v Wong, 11 AD3d 724, 725-726, 784 NYS2d 158 [3d Dept 2004]).

The Court notes, first, that the eyewitness identification testimony at trial was problematic. Neither witness could identify the defendant at trial and the reasons offered for the failed identification varied greatly; from not remembering, because of the year and a half that elapsed between the crime and the trial, to a purported change in defendant's appearance. Both eyewitnesses expressed confusion as to which of the two shooters they were, in fact, identifying. Ivory wore a paper bag over his head at the lineup and agreed to be transported in handcuffs to the precinct because he was worried about his own safety. He testified from the very beginning, back in 1997 and well before his recent recantation, that he only picked defendant from the lineup because he was the person familiar to him in the photo array, a phenomenon now generally accepted as a primary cause for misidentification. (See People v. LeGrand, 8 NY3d 449 [2007]). Even more telling, Ivory was not 100% confident in his identification of defendant in the photo array from the very start.

While the Court recognizes that Ivory is a convicted murderer who might very well have expectations for his own case, the Court does credit Ivory's expression of conflict — the fear of being a snitch and the familial pressure (as a teenager) to avenge his cousin's death. This Court cannot underestimate this motivation as corroborative evidence of both Ivory's less-than-certain identification then and his subsequent recantation now.

Next, the circumstances surrounding Moore's recantation, her recantation of her [*8]recantation, and her troubling conduct in the courthouse cause this Court to have no faith in her credibility and, therefore, to completely disregard her testimony and her sworn statements.

Given the weaknesses of the identification testimony, the defendant's confession weighs heavily in the determination of defendant's guilt. The prosecution is correct that some of defendant's more recent claims concerning what Detective Scarcella and the other detectives did to him seem far-fetched. However, this argument misses the main point. This Court is struck by the fact that back in 1997 defendant at twenty-one years of age identified Detective Scarcella as the main detective who coerced his confession despite the fact that Detective Scarcella's role was allegedly minimal, that he claimed not to have been present at the precinct, and that he was not among the many detectives who testified to having spoken to the defendant. This allegation of coercion occurred over fifteen years before the recent dismissal of numerous convictions for which Detective Scarcella has been found by the courts and the KCDA to have engaged in improper tactics.

The new evidence concerning Detective Scarcella is more than just collateral impeachment testimony as the prosecution claims. Rather, it provides the jury with a different context in which to evaluate defendant's testimony about Detective Scarcella, especially in light of Detective Falcone's testimony that places Detective Scarcella at the precinct.

Perhaps the most convincing argument for the importance of this impeachment testimony was best illustrated by the KCDA in the exoneration proceedings of the People v Jabbar Washington (Sup Ct Kings County, Indictment No. 2585/1996). In that case, Detective Scarcella and his partner were responsible for conducting a lineup with the eyewitness and taking a statement from Washington. Washington asserted at trial that Detective Scarcella fed him the information and coerced him to make the statement. The KCDA joined in Washington's motion to vacate his conviction, in the first instance, due to the People's non-disclosure of Brady material which involved the positive lineup that the eyewitness later disputed. The eyewitness stated that she had identified Washington to Detective Scarcella, not as the perpetrator, but rather as someone she recognized from the neighborhood. The Grand Jury assistant noted that the eyewitness disputed the account of the lineup described by Detective Scarcella and his partner, but that information was not provided to the defense. The KCDA noted that this error was compounded, in part, by 1) the eyewitness's direct examination at trial which left the jury with the impression that she positively identified Washington as the perpetrator; and 2) Detective Scarcella's intentional insinuation, in a non-responsive answer on cross-examination, that the eyewitness had identified Washington as the perpetrator.

The KCDA believed that the Brady violation deprived the defendant of an argument at trial that "dovetailed with the defense," namely that Detective Scarcella had fabricated the defendant's statement in the same way he fabricated the eyewitness identification of Washington as the perpetrator in the lineup. The KCDA concluded this even though the eyewitness admitted on cross-examination that the person she identified in the lineup was not the perpetrator. In essence, the Brady violation deprived the defense of potential impeachment material for Detective Scarcella

Similar to Washington, here, the weakness of the identification testimony places a greater emphasis on defendant's purported confession. While there is no Brady violation in this case, the nature of the recent impeachment testimony "dovetails" with defendant's defense, mounted back [*9]in 1997 and reiterated again now, that Detective Scarcella coerced his confession. Further, this impeachment testimony concerning Detective Scarcella would undoubtedly provide the jury with a different lens through which to view both defendant's testimony and Detective Scarcella's testimony about how his confession was obtained.

With regard to Terrence Morgan's testimony, the Court recognizes that while he may have had nothing to lose by coming forward, he also had nothing to gain. In the context of this CPL §440 motion, where all of the trial evidence has now been undermined, Terrence Morgan's testimony is just another factor that weighs toward vacatur, especially in light of the fact that he has never once stated that defendant was with him during the shooting.

In consideration of all of the testimony taken together, defendant's motion to vacate his conviction is granted and a new trial is ordered.

This constitutes the Decision and Order of the Court.

SO ORDERED:

January 11, 2018

HON. DINEEN ANN RIVIEZZO, J.S.C.