People v Johnson
Annotate this CaseDecided on September 14, 2023
Supreme Court, New York County
The People of the State of New York
against
Kiheam Johnson, Defendant.
Ind. No. 2743/2015
New York County District Attorney Alvin L. Bragg, Jr. (Christopher Foster and Megan Hast, of counsel) for the People.
Center for Appellate Litigation (Allison Haupt and V. Marika Meis, of counsel) for the Defendant. Daniel Conviser, J.
The Defendant moves pursuant to CPL 440.10 (1) (h) to vacate his convictions for one count of Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree based on the alleged ineffectiveness of his counsel, Daniel W. Scott. That motion is opposed by the People. For the reasons outlined here the motion is granted and the Defendant's convictions are vacated. This Decision and Order shall be stayed for 30 days to allow the People to move for a stay pending appeal from the Appellate Division if they choose to do so.
The Defendant was convicted in a jury trial of murdering Deiondre Viera, a 17-year old known as "Gutta", who worked for a local group of drug dealers in a shooting at 2:23 a.m. on May 8, 2015 in Harlem. He was sentenced to an aggregate term of 40 years to life imprisonment on April 6, 2017. The prosecution argued that Mr. Viera owed money to Shawn Young, also known as "S-Dot", who was the boss of the drug crew he worked for and that Mr. Johnson shot Mr. Viera on behalf of S-Dot.
The Defendant argues that Mr. Scott, without justification, failed to present significant evidence that another person, Aziz Muhammad, also known as "Z-Money" committed the murder.[FN1] Instead he argued that S-Dot and a man named Jamal Smith committed the murder even though no evidence supported that and significant trial evidence contradicted that claim. The Defendant also claims Mr. Scott was ineffective for failing to move to controvert a search warrant for Mr. Johnson's cell phone. The Court agrees with these contentions. The Court finds that these errors together with a number of related errors outlined here fell below an objective [*2]standard of reasonableness, were prejudicial and constituted the ineffective assistance of counsel under both the State and United States Constitutions.
The Defendant also argues that Mr. Scott erred in failing to object to the People's insertion of color-coded arrows on surveillance videos identifying Mr. Johnson and others and that the convictions were invalid because the prosecution introduced 3 days of cell site location information which was obtained without a warrant. The Court partially agrees with the first contention but believes that error did not cause prejudice or result in ineffective representation. The Court does not agree with the Defendant's cell site evidence claim.
Summary of Holdings, Annotations and the Question of Admissible Evidence
Defense counsel's ineffectiveness arose, in the Court's view, from: (i) the failure to present significant available third-party culpability evidence which may have exonerated Mr. Johnson; (ii) the choice to present a third-party culpability defense which was clearly contradicted by the record; (iii) the failure to present phone records which would have refuted the prosecution argument that the only relevant person who contacted Jamal Smith at the time of the murder, who received the murder weapon from the shooter, was the Defendant; (iv) the failure to pursue obvious lines of investigation which could have produced additional exculpatory evidence; (v) the failure to impeach the only eyewitness who identified Mr. Johnson with respect to that witness's bias in favor of Z-Money; (vi) the failure to argue in summation that contradictions between Mr. Johnson's confession and the trial evidence meant his confession was false, and (vii) the failure to move to controvert a clearly invalid search warrant.
The Court here has not annotated facts from the trial record which it understands are not contested, unless a particular citation appears useful or the record is quoted. It has annotated to information from "DD5" police reports, witness statements and grand jury testimony which were not presented at trial. This then raises the question of whether, had such information been sought to be introduced, it would have been admissible. The Court believes that much of this information would have been clearly admissible through the questioning of witnesses or the introduction of exhibits. The Court also notes information in DD5's or other sources which would have provided avenues for further defense investigation. Where a further investigation was warranted but not conducted, this then also raises the question of whether, had the neglected investigation been pursued, it would have resulted in admissible exculpatory evidence. The Court believes the failures here were of a sufficient magnitude that even if some of the significant cited evidence could not be admitted, and even if some of the significant investigative leads bore no fruit, the Defendant was still deprived of the effective assistance of counsel.[FN2]
Summary of Evidence
On the evening before the murder, a man named Albert Thompson drove to Harlem from his home in Connecticut to meet Z-Money. Thompson and Z-Money were acquainted because Thompson sometimes functioned as a driver for Z-Money and Z-Money in return was a "guide" to New York City for Thompson and found girls for him. At the time of the trial Thompson was 59 years old and Z-Money was 23. Thompson picked up Z-Money and then drove to see Z-Money's cousin Mr. Viera, the victim, at Z-Money's request. Mr. Viera entered the car with two friends, Tyrone Alston and Stephon Farmer. The group then drove to a deli and Thompson [*3]remained in the car.
Mr. Viera, Z-Money, S-Dot and others interacted in the deli on 112th streets and Lenox Avenue in Harlem 45 minutes before Mr. Viera's murder. The interaction was captured in clear video without sound introduced in evidence. A dispute ensued between S-Dot and Mr. Viera over money S-Dot believed Mr. Viera owned him. S-Dot threw punches at Mr. Viera. Z-Money intervened to protect Mr. Viera, and S-Dot then threw punches at Z-Money. Others then got Mr. Viera and Z-Money out of the store. S-Dot expressed anger at Z-Money for protecting Mr. Viera. After the fight, S-Dot was reported to have said: "we are going to take care of this somewhere else, we know where you are going to be later". DD5 No. 36. Alston reported to the police that he and Farmer (waiting in the car) wanted to go home but that Z-Money insisted on staying out. DD5 # 69.
The car then parked on 111th street between 5th and Lenox avenues around 1:55 a.m. Z-Money got out and met with Mr. Johnson. The car then went back to the bodega where Z-Money got out and then returned. The car then went back to 111th street where Z-Money got out for a third time and went out of sight. As the car sat double-parked someone approached it and shook hands with and briefly spoke to Mr. Viera
Mr. Viera was then shot and the car drove to the hospital where he was taken out dead. In his written statement to the police, Thompson said: "They were talking [Mr. Viera and the shooter] about 30 seconds (handshake & cordial speak). Then I heard pop, pop, pop at least 4 or more." In his grand jury testimony, Thompson described the shots as "pow, pow, pow, pow, pow, pow". Grand Jury testimony, p. 22. Tyrone Alston, sitting in the back seat with Mr. Viera at the time of the shooting, testified at the trial and repeatedly said the shooter had "run up" or "ran up" to the car and fired. When asked if he meant the shooter had literally run to the car, Mr. Alston said the shooter "came up" and fired. February 21 trial transcript, p. 155. Immediately before the shooting, Thompson said that Mr. Viera verbalized his displeasure with the delay they were facing in going home because of Z-Money. See Thompson grand jury testimony, p. 21 ("the young man's [Mr. Viera's] looking out the window saying come on man, Z-Money, we got to get home or just something to the fact, stupid what he was doing and some kind of way they were talking").
At the trial, Thompson testified that Alston and Farmer left the car before it arrived at the hospital and that the shooter came from the front of the car. Detective Rivera, the lead detective in the case, however, testified that initial witness evidence indicated the shooter came from the rear but that the police later concluded the shooter came from the front. Id., p. 257. At the trial, the evidence indicated that Mr. Viera had been shot 3 times and that 5 shell casings were recovered at the scene. A ballistics expert, Captain Denis J. Burke, testified that all of the ballistic evidence at the scene came from one 9 millimeter semi-automatic pistol.
Thompson initially told the police that only he and Mr. Viera were in the car and then later said two other occupants had left before the car arrived at the hospital. Id., pp. 103-104. He admitted during his trial testimony that when he first spoke to the police he lied to them about Z-Money's identity agreeing that: "the name you gave to the police [for Z-Money, "Fred" (a name Thompson used for Z-Money) was provided] to divert attention from the name you really knew him by". Id., p. 101. He said he could not identify Mr. Viera's killer. About 6 weeks after the shooting on June 23, however, in an interview with Detective Worthington, Johnson identified a photograph of Z-Money as the person he called Fred and identified Mr. Johnson as the shooter. Jamal Smith was also arrested because he was identified as the person the shooter gave the [*4]murder weapon to. Thompson later identified the Defendant as the shooter in a lineup and during the trial. In his written statement to the police, Thompson said the shooter was younger than Thompson and "Fred" (Z-Money). Z-Money at the time was 23. DD5 # 52. Johnson was about to turn 33, about 10 years older than Z-Money.
A witness whose name was redacted said that Johnson and Smith hung out together and that the person who shot Mr. Viera wore a Muslim "cuffi" on his head. In the video evidence presented by the People, the person identified as Mr. Johnson was seen wearing a head covering. While the unidentified witness said Smith received the murder weapon from the shooter, however, he could not identify who the shooter was. DD5 # 88. When interviewed, Z-Money reported that he left the car immediately prior to the shooting but provided three inconsistent statements about exactly where he went. According to DD5 # 18: "Mr. Muhammed [Z-Money] first states that he wa ked [SIC] about halfway up St. Nicholas Avenue toward 112 street, later states that he only went a few feet off the corner and then later stated that he was almost around the corner of 112 street when the shooting happened."
Mr. Johnson confessed to the murder in two videotaped interviews on July 21, 2015 which were received in evidence with redactions. In the initial interview with Detectives Rivera and Ranaghan lasting for an hour Mr. Johnson was read Miranda warnings and agreed to answer questions. The police made no threats or promises. Mr. Johnson initially denied involvement in the murder, saying he was home that night. He said that S-Dot and Mr. Viera had an ongoing dispute over $900 Mr. Viera owed S-Dot. Johnson said his sister told him: "Z set him [Mr. Viera] up" [for the murder] by bringing Mr. Viera to the deli where the fight occurred. The police discussed Mr. Johnson's Muslim faith with him.
They repeatedly implored Mr. Johnson to confess to the murder. They told him that admitting it would be "a chance to help yourself" and that since the police already knew what happened his denial was "not going to fly". There "must be a reason" for the murder, they urged, and if that was understood it would negate the view that "we got to take this guy off the street forever". The police said: "we're not looking to throw the key away" and that Mr. Johnson should "get it behind you". When Mr. Johnson said admitting the murder would mean going to jail, the police responded: "you could go to jail for a week or you could go to jail to never get out" adding that this was an "example" and "not a truthful thing". They urged Mr. Johnson to "repent", saying: "you had to do what you had to do".
Mr. Johnson then admitted to the murder. He said he killed Mr. Viera on behalf of S-Dot and that S-Dot gave him the gun. He said he had learned that Mr. Viera was going to kill S-Dot and so killed Mr. Viera first. He recounted facts about the murder which were consistent with other evidence. He also recounted facts during both interviews which were strikingly inconsistent with the evidence. For example, he repeatedly said he fired twice, a contention the police during the initial interview briefly quizzed him about 5 more times. After his admissions, the police told Mr. Johnson his story "makes sense". Mr. Johnson then wrote a short statement.
This was followed by a second videotaped interview with ADA Foster and Detective Rivera lasting 50 minutes in which Mr. Johnson was again Mirandized and agreed to answer questions. Again, no threats or promises were made. Mr. Johnson again admitted to the murder and was taken through the details of what occurred. He recounted being contacted by phone by S-Dot, asked to come to Harlem from the Bronx, meeting with S-Dot in the back of a car and given a gun by S-Dot. He described contacting Z-Money who he met briefly before the shooting. Z-Money recounted the deli fight to Mr. Johnson. Johnson said he contacted Z-[*5]Money by phone once that night but the police said records showed the two were in "constant communication". Johnson said he initially saw 4 people in the car where Mr. Viera was killed but that at the time of the murder only two were there. [The evidence indicated there were 4 people in the car at that time].
Johnson insisted he walked to Lenox Avenue after the shooting but the police said they knew he walked to 7th avenue. During the police interview, Mr. Johnson said he was in the "area" of the shooting for 5 minutes. During the second interview he said he was at the car talking to Mr. Viera for no more than 5 minutes or 5 minutes "more or less". ADA Foster then noted: "5 minutes is a long time". Johnson then said he talked to Mr. Viera for 2-3 minutes before shooting him. Johnson said that he believed Z-Money left the car just prior to the shooting as part of an effort by Z-Money and Mr. Viera to kill S-Dot. Johnson insisted he calmly walked away from the shooting, rather than ran. He said S-Dot gave him 60 grams of crack cocaine after the murder worth about $30,00 and thanked him. He said that S-Dot later "sucker punched" him, apparently weeks later, and had been talking in the neighborhood claiming credit for the murder. In the Court's view, in the two interviews, Mr. Johnson appeared rational, responded appropriately to questions and did not appear to be coerced.
Johnson had a history of drug use, had dropped out of high school and had bipolar disorder. The police spoke to Z-Money on May 26, 2015, but Z-Money was subsequently murdered. The two other passengers in the car at the time of the murder, Mr. Alston and Mr. Farmer, said they could not identify the shooter. Mr. Farmer appeared at the trial, repeatedly refused to answer questions and was then held in summary contempt. Mr. Alston testified.
Phone records from the Defendant's phone showed him contacting S-Dot, Z-Money and Smith after the deli incident and through the time of the shooting. Cell-site location information ("CSLI") showed Johnson in the vicinity of the shooting. The People presented a compilation of surveillance video at the murder location with color coded arrows showing the location of different subjects. The People argued that the video supported the inference that the shooter was Mr. Johnson because of where he was immediately before and after the murder.
Mr. Johnson testified at trial and said he and S-Dot were cousins who knew each other and that he also knew Jamal Smith. He testified that he had been previously convicted of a felony assault and felony narcotics crime. Mr. Johnson and S-Dot sometimes sold drugs together but not at the time of the shooting. Z-Money was a worker who sold drugs for both S-Dot and Johnson. Johnson, who was married and had children, was also in a relationship with Vanessa Howell, who was S-Dot's girlfriend. Mr. Johnson testified during the trial that S-Dot did not know at the time of the murder that Mr. Johnson was involved with Ms. Howell. February 21 trial transcript, p. 447.
Mr. Johnson testified that he was selling drugs on May 7, 2015, as he normally did. He claimed that he, S-Dot and Howell went to the Bronx prior to the murder. The following day, Johnson reported, "word on the street" was that S-Dot was responsible for the murder. Mr. Johnson testified that he falsely confessed to the shooting. He testified at the trial that, prior to the recorded interview, the police had told him: "if you don't confess to this, we're going to take your child and lock your wife up". Id., p. 459. Detective Rivera in his trial testimony denied that happened. During his testimony Johnson repeatedly referred to himself in the third person, as "Kiheam". He claimed to have asked for a lawyer, a contention the police denied, and said he did not understand the Miranda warnings he received.
In the Court's view, Mr. Johnson's trial testimony was obviously incredible in some [*6]respects. He repeatedly denied making statements to ADA Foster which the videotape of his interrogation indicated he said. The contradiction was so striking that at one point the Court intervened to explain to Mr. Johnson that he was not being asked what happened, but what he had told ADA Foster. It was also obvious that Mr. Johnson did not understand, or claimed to not understand, simple questions asked by the prosecutor at some points. He insisted he was in the Bronx at the time of the murder even after being repeatedly shown evidence that his phone showed him to be near the scene of the murder.
In closing the defense argued that S-Dot and Smith were jointly responsible for the murder but cited no specific evidence to support that. Mr. Scott rather simply said there was a "strong presumption" or a "strong inference" that the murder was committed by S-Dot and Smith. The defense argued that S-Dot had implicated Johnson in the murder because Johnson was in a relationship with S-Dot's girlfriend. Mr. Scott argued Thompson's identification was unreliable and argued extensively that the confession was coerced.
The People repeatedly argued that the jury could rely on Thompson's identification because Thompson was an "unbiased" impartial witness. They outlined the CSLI showing Johnson near the scene of the murder, argued that surveillance video showed Johnson at the scene and outlined how Johnson had communicated with S-Dot and Smith around the time of the murder. The evidence showed Smith had received the murder weapon. The prosecutor argued that S-Dot could not have been the shooter because he was in a car heading north at the time and that the Defendant's confession was not coerced. "Jamal Smith [who received the murder weapon from the shooter] has no phone communications all night with any of the relevant parties except for the defendant". February 28 trial transcript, p. 523. The jury deliberated for two days and requested numerous exhibits prior to their guilty verdict.
Evidence That Z-Money Was the Shooter
Mr. Scott presented no evidence or argument during the trial that Z-Money was the shooter. The police interviewed a witness who saw two men in hooded sweatshirts approach the car where Mr. Viera was murdered and one of the two fire three shots into the car. The witness followed one of the males, stopped him and asked for a light. The male entered a taxi and the witness then called 911. The 911 call was recorded and available at the trial but was not sought to be introduced. The witness identified the person who got into the cab as the shooter in the 911 call. The witness identified the cab as green with the number B919. DD5 # 4.
The police were able to identify the taxi and where it picked up and dropped off its passenger through GPS information. The taxi driver was interviewed by the police, provided a description of the passenger, said the person "seemed like he was running from something" and told the driver to "go fast". The taxi driver said he was nervous and thought the passenger had a weapon but said he did not see one. DD5 # 18.
When the police interviewed Z-Money, he told them that he was driven by Thompson on the night of the murder. He referred to Thompson as the "old man". Z-Money said he "gets the old man girls in exchange for money". Z-Money said that Mr. Viera owed S-Dot $200. Z-Money had told S-Dot he would pay the debt if Mr. Viera didn't. S-Dot had then called Z-Money so often to collect the debt that Z-Money changed his phone number. Z-Money said he had left the car at the time of the shooting. He initially said he had walked away from the scene. After being further questioned by the police, however, he confirmed that he was the person who was picked up in the green taxi, who the witness said was the shooter. DD5 # 52.
An unidentified witness said he had "heard on the street" that S-Dot was responsible for [*7]the murder and encountered S-Dot, Z-Money and others a couple of days after it. Someone asked S-Dot: "why you do that my G" to which S-Dot replied: "I had to take care of what I had to take care of". DD5 # 63. A different witness saw two men leaving the scene of the murder and one hand the murder weapon to Jamal Smith. The defense asserts that their review of case records indicates that the first time the police became aware of Mr. Johnson was when Z-Money told the police about him. Defendant's original motion, ¶ 59.
Z-Money was murdered in a shooting in Harlem on October 28, 2015 about two blocks from where Mr. Viera was killed. News reports indicated the police were investigating whether this murder was in retaliation for the shooting of a teenager in Harlem which Z-Money witnessed or was involved in. See citations to ¶ 69 of defense original motion.
Testimony of Daniel W. Scott
Daniel Scott was called as a witness by the defense at a hearing on Defendant's motion. He has been a criminal defense attorney with his own practice since 1983 and is on the 18-b and 18-b homicide panels. As of 2017, he had handled about 20 homicide cases. In 2015, he was assigned to represent the Defendant at arraignment. Mr. Scott had a heavy caseload at the time of the Defendant's trial, including 3 murder cases, which took away from the time he was able to spend on this case. He reviewed the Defendant's motion prior to testifying and submitted an affidavit as part of the defense motion.
The defense Mr. Scott proffered at trial was that someone else did the shooting. He reviewed discovery and hired an investigator, Michael Barry. Mr. Scott initially said he didn't remember who his investigator was and recalled it only after looking at paperwork. Mr. Barry performed normal investigative steps including interviewing witnesses. When highlighting information from DD5 reports with markers as was his practice, Mr. Scott did not highlight any DD5's referencing Z-Money. At trial, he argued that S-Dot, along with Jamal Smith were responsible for the murder. Asked why, he said: "It must have seemed the best choice at the time". Id., p. 13.
Detective Worthington testified at trial that Smith had received the murder weapon from the shooter. Mr. Scott was asked how he could have argued that Smith was responsible for the shooting when the evidence indicated he had received the murder weapon from the shooter. Mr. Scott said: "I suppose [that Jamal Smith was] more so as an accomplice given that". Id., p. 16. When asked by the Court whether his defense at trial had been that Jamal Smith was the shooter Mr. Scott said: "I believe so" and "I'm not recalling the specifics of the case, frankly." Id., p. 15. He said he did not recall whether there was evidence at the trial that Smith was the shooter. He said he did not recall whether he presented any evidence at the trial that S-Dot and Smith were jointly responsible for the murder. He then said: "I don't remember, but I do recall you [defense counsel] saying that I did not in your motion". Id., p. 17. Mr. Scott said he went over cross-examination questions with Mr. Johnson before his testimony and knew which questions he would ask. Id., pp. 18-19.
When asked if he pointed to any evidence that Smith was the shooter during the trial, Scott replied: "Apparently not". Id. Mr. Scott argued in summation, however, that S-Dot and Smith were jointly responsible for the murder. When asked if he would have presented evidence of this third-party culpability defense to the jury if he had it Mr. Scott replied: "I would hope so". Id. He said he presented no evidence that S-Dot was the shooter at the trial [although he argued that in his summation] because no such evidence existed.
Mr. Scott discussed his preparation of the Defendant for his testimony. Mr. Scott was [*8]aware that the prosecution had introduced cell site location information to establish that Mr. Johnson was in the vicinity of the shooting. Mr. Johnson testified, however, that he and S-Dot went to the Bronx at the time of the shooting. Mr. Scott said he recalled that only from reading the defense motion. He acknowledged that this testimony created a problem for his third-party culpability argument that S-Dot was the shooter, since the Defendant testified S-Dot was in the Bronx at the time. He said he did not recall whether, following his client's testimony, he considered changing his argument that S-Dot was the shooter. Mr. Scott said he didn't address this contradiction with the jury and acknowledged this was "glaringly inconsistent". Id., p. 21.
When asked whether he realized that his own client's testimony refuted his third-party culpability defense Mr. Scott said: "Well, you know, at this point, I really don't recall. I must not have or I would have not gone forward with that or unless I was completely boxed in, or for one reason or another". Id., p. 22. The People also argued that S-Dot could not have been the shooter because surveillance video showed him staying in a car which continued north at the time of the shooting, but Mr. Scott did not rebut that argument during the trial. When asked whether he had presented evidence which countered the argument that S-Dot could not have been the killer for that reason he replied: "Apparently not". Id. p. 23. DD5 # 18 documented the police investigation of the cab which picked up and dropped off the person the eyewitness identified as the shooter. Mr. Scott said the DD5 had the cab driver's name redacted and that it would have been his practice to seek an unredacted copy but did not recall if he had. He repeatedly testified he did not recall information about this issue.
Mr. Scott testified: "I don't think any follow-up investigation was done on this 911 caller or the cab . . . I would say that was a failure or omission on our part". Id., p. 27. DD5 # 52 described an interview with Z-Money by Detective Worthington and outlined how Z-Money was identified as the person the eyewitness said was the shooter. Mr. Scott said he had missed that and this was a mistake saying: "perhaps I was relying too much on my investigators". Id., p. 29.
There was cell site location information about Z-Money's phone but Mr. Scott did not see if it tracked the route of the cab and also did not track whether Mr. Johnson's phone tracked the taxi's route. Mr. Scott said he could not recall whether the 911 call was introduced by the prosecutor, whether Mr. Scott had realized the significance of the call or whether this evidence had indicated Z-Money was the shooter. Mr. Scott didn't seek to introduce Z-Money's admission that he was in the cab during the trial and said he did not know why. Detective Worthington testified at the trial but Mr. Scott did not question him about Z-Money's statements. Mr. Scott said he did not recall that. He said he had no strategic reason for not presenting evidence that Z-Money had been identified as the shooter. When asked if he would have presented such evidence had he been aware of it Mr. Scott said: "I think so. Yeah". Id., p. 32.
Information that Z-Money was the person the eyewitness identified as the shooter was in the discovery materials he received but Mr. Scott said he missed it. He was aware that Z-Money was murdered prior to the trial. He said he did not recall whether he investigated the issue and did not recall what the prosecutor told him about it. When asked whether he had been aware of news reports that Z-Money had been murdered in possible retaliation for Mr. Viera's murder Mr. Scott replied: "That sounds familiar. Possibly, yes. Unless I'm recalling it from reading your motion". Id. p. 35. Mr. Scott agreed to a stipulation during the trial that Z-Money had abruptly passed away rather than arguing to the Court that the jury learn he was murdered. When asked whether such an argument had occurred to him he said: "Yeah. That sounds familiar too." When asked why he had agreed to the stipulation, Mr. Scott said: "I'm not sure why I agreed to [*9]that. I think it must be more to it, you know, more that's not on the record. But I don't recall what that is so." Id. pp. 36-37. Mr. Scott said that had he realized Z-Money had been identified as the shooter, he would have objected to the stipulation.
Mr. Scott said he received numerous telephone records regarding participants in the case but did not know how to read them. He said he spoke to investigators about them. The records indicated that Mr. Johnson spoke with S-Dot, Z-Money and Jamal Smith on the night of the murder and the prosecution used these calls to connect Mr. Johnson with the deli fight. Mr. Scott said he did not review these records to see who else among these people had called each other.
The People at the trial argued that telephone records around the time of the murder indicated that "Mr. Johnson was the only relevant part [SIC] to Mr. Smith". Id., p. 39. Mr. Scott did not try to determine whether anyone else had made calls to a number Smith had called. Z-Money made calls to one number at 1:42, 1:49 and 2:45 a.m. on the morning of the shooting which occurred at 2:23 a.m. Jamal Smith called the same number at 2:27 a.m., 4 minutes after the shooting. Mr. Scott said he was not aware of this at the time of the trial. He did not try to contact that number. Had Mr. Scott realized this information, he would have investigated who this person was. That information would have refuted the prosecution's argument that the only person connected to Jamal Smith by phone at the time of the murder was Mr. Johnson.
Regarding DD5 # 66, this report indicated that Z-Money made numerous calls to a person who lived in the same building as Jamal Smith before and after the murder. Mr. Scott said he did not know or could not recall information about this. The police tried to find this person by going to the location but were not able to locate him. Mr. Scott did not further investigate this. He explained: "This is the sort of thing that they [his investigators] should do on their own initiative". Id., p. 45. Detective Worthington in this DD5 said that he went to investigate the person Z-Money had called before and after the murder, observed two people come out of apartment 1B, look suspiciously at the police, then go to apartment 2B, which was Jamal Smith's apartment. At trial, Detective Worthington testified that he went to Smith's building to find a possible additional witness and observed Jamal Smith with the person he was trying to reach. Mr. Scott testified that he didn't know if he had realized that the combination of Detective Worthington's DD5 and testimony showed that Jamal Smith was seen with the person Z-Money had called before and after the murder.
In Z-Money's phone records there are 12 calls to and from a person whose number, in Mr. Johnson's phone, was identified as "KZ2". That number was in contact with Jamal Smith on May 7, 2015, one day before the shooting and also on the day of the shooting; 3 times on May 11, once on June 20 and once on June 21. Mr. Scott said he had not been aware before the trial that KZ2 and Jamal Smith had talked to each other. Thus, the phone records showed that the person Z-Money called 12 times before and after the murder also was in contact with Jamal Smith multiple times before and after the murder. Mr. Scott was not aware of this.
Albert Thompson identified Mr. Johnson as the shooter at trial. Thompson's connection to the shooting was through Z-Money but Mr. Scott said he did not recall that. Mr. Scott said he did not consider how a third-party culpability defense alleging Z-Money was the shooter would have allowed him to argue that Thompson identified the Defendant to protect Z-Money. Z-Money was the only person Thompson had a prior acquaintance with among the persons in the car on the morning of the murder. Mr. Scott did not cross-examine Mr. Thompson regarding that issue and did not forgo that cross-examination intentionally. He said he "clearly did not [*10]delve into the phone records as thoroughly as I should have". Id., p. 55.
Mr. Thompson identified the Defendant as the shooter on June 23. Mr. Scott did not consider investigating whether calls between KZ2 and Jamal Smith on June 20 and 21 were connected to Thompson's belated identification. The police had considered whether Z-Money was a suspect but Mr. Scott could not recall whether he knew that during the trial. A page from Detective Worthington's memo book read: "I think it's Azziz Muhammed [Z-Money] . . . Shooter?" Id., p. 56. A DD5 indicated that Mr. Viera owed $200 to S-Dot and that Z-Money had told S-Dot that Mr. Viera would pay S-Dot this money. Mr. Scott said he did not recall whether he believed during the trial that S-Dot held Z-Money responsible for Mr. Viera's debt. Mr. Scott had reviewed the surveillance film from the deli fight. He knew Z-Money was a worker in S-Dot's drug crew. Mr. Scott did not consider arguing that after the deli fight, Z-Money would have to make things right with S-Dot and that killing Mr. Viera would accomplish that. He said he generally left it to his investigators to analyze digital evidence which he described as "raw data" and "sheets of numbers". Id., p. 60.
Prior to the trial, the People provided Mr. Scott with phone record and cell site location data. They met with him to go through some of the digital evidence. Protective orders were in place for some trial witnesses which prohibited the defense from learning some witness names until right before the trial. Mr. Scott was aware there were witnesses prior to the trial who had identified S-Dot as being responsible for the murder. Tyrone Alston was Mr. Viera's uncle. Stephon Farmer was sitting right next to Mr. Viera when he was murdered and was Mr. Viera's good friend. Z-Money was friends with Mr. Viera, Farmer and Alston and had grown up with them. Thompson, Farmer and Alston all saw Mr. Viera shot but none identified Z-Money as the shooter.
Mr. Scott said he had been aware of the police investigation of Z-Money's movements after the murder. On cross-examination he was asked whether he did not argue that Z-Money was the shooter because "he was good friends with the victim and that he had been with the victim the entire night and in fact got in the middle of the fight between the victim and S-Dot?" to which Mr. Scott responded: "Right. I think that's fair to say. Yes". Id., p. 70. The suspects in the murder of Z-Money were S-Dot and a person S-Dot had hired and this was discussed in an off-the-record sidebar with Mr. Scott during the trial. Mr. Scott agreed to not inform the jury that Z-Money had been murdered in order to avoid an inference that a witness to the murder had been killed. Mr. Scott said: "I don't recall the exact specifics, but I do remember this portion and I'm not sure I was happy with the outcome" [of the stipulation he agreed to]. Id., p. 71.
S-Dot got into a car with the Defendant minutes before the Defendant exited the car to approach the car where the murder occurred. The People argued that the person on the video who approached the car Mr. Viera was in was the shooter. This approach was captured on video which showed the person's clothing, gait, height and weight. An inconsistency between Z-Money's appearance and the appearance of the person the People identified as the shooter would be a reason not to argue that Z-Money was the shooter. The Defendant was wearing the same kind of head band as the person identified in the video as the shooter.
During his videotaped confession Mr. Johnson said he had known S-Dot for a long time, that S-Dot was the weaker of the two and that Mr. Johnson acted as S-Dot's muscle. In response to a question from the Court as to who Mr. Scott argued during the trial was the shooter he said: "I don't recall specifically. I may have left it as to - - ". Id., p. 82. He later testified: "I think I suggested specific individuals [who were the shooter]. Id., p. 84. In response to a third question [*11]about whether he had identified anyone as having committed the murder during his summation he said: "I think so". He said he did not recall if he had received evidence S-Dot was the killer.
CONCLUSIONS OF LAWThe right to effective assistance of counsel is guaranteed by the federal and state constitutions. U.S. Const. Amend. VI; NY Const. Art. I, § 6. Under the federal standard, ineffective assistance of counsel requires both that counsel's performance fall below "an objective standard of reasonableness" and also that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different". Strickland v. Washington, 466 US 668, 688, 694 (1984), reh denied 467 US 1267 (1984).
Under the New York Constitution, a defendant must show that he was not afforded "meaningful representation". People v. Baldi, 54 NY2d 137, 147 (1981). The Court of Appeals has held that a defense attorney's performance will not be considered ineffective "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation." Baldi, 54 NY2d at 147. Meaningful representation does not mean perfect representation. People v. Benevento, 91 NY2d 708 (1998). The reviewing court must separate ineffectiveness from "mere losing tactics" and the defendant must "demonstrate the absence of strategic or other legitimate explanations" for counsel's conduct. Baldi, 54 NY2d at 146; People v. Fowler, 145 AD3d 437, 438 (1st Dept 2016), lv denied 29 NY3d 902 (2017). Defense counsel's choice of strategy, even if unsuccessful, does not rise to the level of ineffective assistance as long as it is reasonable under the circumstances. Benevento, 91 NY2d at 713. The defendant must also establish that his right to a fair trial was prejudiced by the unfairness of the proceedings as a whole. People v. Stulz, 2 NY3d 277, 284 (2004). In the Court's view, Mr. Scott's representation in this case was ineffective under both the State and Federal constitutional standards.
Mr. Scott's Testimony
Mr. Scott testified at the hearing that he did not remember basic facts about the trial including who, if anyone, he had identified to the jury as the killer, whether he had presented any evidence on the issue, why he had missed evidence that Z-Money was the killer or why he had not addressed the obvious contradictions between his third-party defense and the trial evidence. At times, he testified in a directly contradictory manner, as when he initially outlined how he had no recollection of whether he had ever considered evidence Z-Money was the shooter and then later, in response to a leading question on cross-examination, agreed he had not made that argument because Z-Money and Mr. Viera were friends and Z-Money had tried to protect Mr. Viera during the deli fight. The trial occurred about 6 years before the hearing. But Mr. Scott testified he had read the defense motion prior to testifying, which laid out the events of the trial in great detail and prepared an affidavit concerning his work. While courteous and responsive during the hearing, moreover, Mr. Scott sometimes seemed strangely disconnected, as if he were an uninformed bystander. His answers reflected an unusual tendency to agree with whatever contentions his questioners posited. This clearly benefitted the defense much more than the prosecution.
Attorneys who testify in hearings where they are alleged to be ineffective may face two contrary incentives. On the one hand, an attorney may attempt to present their work in the best light to avoid damaging their professional reputation. On the other hand, a witness may seek to [*12]support a defense motion alleging ineffectiveness by agreeing they made errors, since a successful motion may result in the vacatur of their former client's conviction. The Court did not believe that Mr. Scott was driven by any agenda or was lying during his testimony. In the Court's view, however, he did not offer any credible evidence which provided a strategic explanation for any of his problematic actions. He also repeatedly acknowledged his own ineffectiveness.
The Obvious Deficiencies In The Third-Party Culpability Defense
Mr. Scott argued that Mr. Viera was killed by S-Dot and Jamal Smith. He did not attempt to specify which of these two actually killed Mr. Viera and admitted during the hearing that evidence at the trial that Mr. Smith received the murder weapon from the shooter meant Smith was more an accomplice than the perpetrator. Thus, Smith could not have been the shooter. S-Dot clearly had a motive to kill Mr. Viera and there was significant information that whoever killed Mr. Viera did so at S-Dot's behest. Indeed, one question which appeared to be left unanswered during the trial was the extent, if any, to which S-Dot was ever held responsible for Mr. Viera's killing. But the trial was not about who directed Mr. Viera's murder. The prosecution alleged Mr. Johnson pulled the trigger. There was no evidence presented during the trial, however that S-Dot was the shooter. Mr. Scott during the hearing admitted, in fact, that the trial evidence indicated that S-Dot could not have committed the murder.
Mr. Johnson testified that he and S-Dot returned to the Bronx before the murder. Mr. Scott during the hearing admitted that he had not addressed the fact that his chosen defense had been refuted by the Defendant himself during his testimony. In fact, Mr. Scott admitted his client's testimony was "glaringly inconsistent" with his defense. See People v. Zaborski, 59 NY2d 863, 865 (1983) (counsel's performance ineffective where he put forward an argument the Defendant directly refuted). A second way in which the argument that S-Dot was the shooter was contradicted by the trial evidence was in surveillance video which showed S-Dot staying in a car and continuing north after the murder. This again was a contradiction which Mr. Scott did not attempt to address at the trial. He knew there were people who had reported to the police that they believed S-Dot was the killer. He did not attempt to further investigate this issue. His strategy was also problematic because it effectively invited the jury to conclude that the Defendant lied when he testified that he and S-Dot went to the Bronx before the shooting. It was essential, however, for the jury to believe Mr. Johnson, since they could only conclude his confession was false if they found his trial testimony credible.
Counsel also argued a related point in summation for which there was little evidence and also appeared to contradict Mr. Johnson's testimony although the jury may have missed it. He argued the jury could infer that the police had identified Johnson as a suspect based information provided by S-Dot and/or his associates. There was almost no evidence to support that. Mr. Scott also provided a reason why S-Dot may have implicated Mr. Johnson: "Shawn Young [S-Dot] knew that Kiheam was messing with his girlfriend. So he had motive to falsely accuse him and at the same time divert attention from his own participation in the crime." February 27 trial transcript, p. 496. Mr. Johnson testified, however, that at least at the time of the murder, S-Dot did not know about Mr. Johnson's relationship with Ms. Howell and thus could not have a motive to implicate him because of it.
The Failure to Argue That Z-Money Was the Shooter
Extensive discovery clearly indicated there was a strong argument that Z-Money was the shooter. A 911 caller reported that a person who was identified as Z-Money had shot the victim [*13]in the face, then gotten into a taxi. DD5's indicated that the 911 call occurred and a recording of the call was available. The police then identified the taxi passenger as being Z-Money. This information was corroborated by Z-Money's phone records. Z-Money had also been in the car with Mr. Viera prior to the shooting. When questioned by the police, Z-Money initially denied he was the taxi's passenger. This may have been admissible as consciousness of guilt. A DD5 indicated that the taxi driver transporting Z-Money said he "seemed like he was running from something" and told the driver to "go fast". The taxi driver believed the passenger may have had a weapon but did not see one.
The eyewitness had no apparent motive to lie. He identified Z-Money as the shooter shortly after the shooting. In his videotaped statement to the police, Mr. Johnson said his sister had told him that Z-Money had set up Mr. Viera to be killed, by bringing him to the deli. During the hearing, Mr. Scott acknowledged that his failure to pursue this evidence was a mistake and that he had no strategic reason for the omission. See People v. Rojas, 213 AD2d 56, 68 (1st Dept 1995) lv denied, 87 NY2d 90 (counsel ineffective, in part, for failing to present testimony of eyewitness to shooting which may have exonerated the Defendant).
Counsel could have argued that the three inconsistent accounts Z-Money gave to the police about his precise location at the time of the shooting evidenced a consciousness of guilt. See DD5 # 52. He could have argued that Z-Money's close proximity to the scene was evidence he was the killer. He could have questioned Detective Worthington about the entry in his memo book: "I think it's Azziz Muhammed [Z-Money] . . . Shooter?". Hearing transcript, p. 56. Not arguing that Z-Money was the shooter also eliminated the argument that Mr. Viera was in the locations where he was present on the morning of the murder because of Z-Money. Thompson and Z-Money picked up Mr. Viera at Mr. Viera's home because Z-Money suggested that. Passengers in the car where Mr. Viera was murdered wanted to go home, but Z-Money insisted on staying out. Z-Money directed the car to stop at multiple locations in the area where S-Dot's crew worked. During his videotaped interview with ADA Foster and Detective Rivera, Mr. Johnson wondered why Z-Money brought Mr. Viera to S-Dot, since Z-Money knew that S-Dot and Mr. Viera had a conflict.
According to Thompson's grand jury testimony, Mr. Viera verbalized his displeasure with being delayed by Z-Money immediately before the murder. This testimony potentially allowed the argument that Mr. Viera was talking to his killer, Z-Money, immediately before the shots were fired. According to Thompson, immediately before the shooting Mr. Viera said: "come on man, Z-Money, we got to get home". Mr. Scott did not touch on any of these issues during the trial.
Z-Money was murdered prior to the trial and Mr. Scott agreed to a stipulation that Z-Money had passed away rather than been murdered. Mr. Scott said he believed he did this because he did not want the jury to learn a witness had been killed. Transcript, p. 71. The concern apparently was that the jury might have surmised that Z-Money may have been murdered by someone connected to Mr. Johnson. Even without arguing that Z-Money was the shooter, however, Mr. Scott testified at the hearing that he was "not sure I was happy with the outcome" of the stipulation he agreed to. Had Mr. Scott argued that Z-Money was the shooter, he might then have been able conduct a further investigation to determine if Z-Money was killed in retaliation for his own murder of Mr. Viera, as news reports suggested was possible.
The Failure to Investigate and Use Phone Records
During the trial, the People argued that the only person who was connected to Jamal [*14]Smith, who received the murder weapon from the shooter, was the Defendant. Mr. Scott was not aware during the trial, however, that the discovery he received indicated that both Z-Money and Smith called the same person shortly before and after the murder. Z-Money was in contact with this number at 1:42, 1:49 and 2:45 a.m., both before and after the shooting at 2:23 a.m.. Mr. Smith was in contact with this number at 2:27 a.m. four minutes after the shooting. Mr. Scott admitted that had he been aware of this issue, he would have investigated it further and tried to determine who this person was. Counsel could have used this evidence to refute the argument that the Defendant was the only person who phone records connected to the Jamal Smith. Rather, Jamal Smith and Z-Money may have been connected since they both communicated with the same person immediately before and after the shooting.
Z-Money also made numerous calls before and after the shooting to a person who lived in Smith's building. The police went to Smith's building to look for that person. A DD5 indicated that the police observed two individuals come out of one apartment, look suspiciously at the police and then go into Smith's apartment. Mr. Scott never further investigated or questioned the police witnesses about that.
The phone records also revealed that Z-Money made 12 calls before and after the murder to a contact identified on Mr. Johnson's phone as "KZ2". Text messages between Z-Money and KZ2 introduced at trial apparently indicated that Z-Money sold drugs for KZ2. KZ2 and Smith also contacted each other the day before, day of and three days after the shooting and then again on June 20 and 21. Defense counsel asserts that her analysis of the CSLI indicates KZ2 was in the vicinity of the murder. Defendant's original motion, Argument, p. 9. Mr. Scott did not further investigate these contacts or seek to use them to refute the argument that the only person Smith had contact with relevant to the case was the Defendant.
The contrast between the prosecution and defense analysis of the digital evidence was extraordinary. Although the Manhattan District Attorney's office has staff skilled in analyzing digital evidence, they hired an independent consultant, Dean Delitta, who spent 28 hours billed at $100 per hour to prepare an expertly produced multi-media Power Point. The presentation featured a running time clock precisely correlated with moving color-coded phone icons linked to participant names traveling across large maps which were then correlated with photographs and videos. The defense apparently did not even look at the digital evidence in any detail.
The Failure to Adequately Impeach the Sole Witness Who Identified the Defendant
The only witness to identify the Defendant as the shooter, Albert Thompson, did so on June 23, 1 ½ months after the shooting after having previously said he could not identify anyone. Z-Money talked to KZ2 on June 20 and 21, days before Mr. Thompson's belated identification. Mr. Scott could have further investigated this issue to see if these communications had any impact on Thompson's identification. He could have argued that Thompson identified the Defendant as the shooter to protect Z-Money.
Mr. Thompson had significant credibility problems and Mr. Scott questioned him about a number of them. He had spent 9 years in prison and been convicted of both narcotics crimes and a burglary. He had violated his parole and failed to appear in court on an occasion. He had a history of narcotics use and acknowledged during his trial testimony that he had used cocaine and heroin 5-7 months earlier. February 21 trial transcript, p. 70. He testified he had "dipped and dabbled" in drugs, apparently attempting to minimize his use. Id. His trial testimony and statements to the police were strange in a number of ways, as in his assertion in his written statement to the police that he was reserving his rights under Section 2-207 of the Uniform [*15]Commercial Code, a provision concerning the non-waiver of rights in business contracts.
At the trial, Detective Worthington said that his initial conversation with Mr. Thompson at the precinct was so difficult that he had to be sent home. February 21 trial transcript, p. 417. Thompson initially told the police there had been two people in the car, rather than four. He had urged Detective Worthington to speak to Z-Money. Id., p. 418. Detective Worthington described Mr. Thompson as "unusual" and "eccentric". Id., p. 427. Even in the second interview when he identified Mr. Johnson, Detective Worthington testified, Thompson began the interview by trying to have an argument with him. Id., p. 417. Thompson told Detective Rivera he had only gotten a "quick look" at the shooter. Id., p. 264. In his written statement to the police, he described the shooter as being younger than Z-Money, although Z-Money was 23 years old at the time and Johnson was about 10 years older than him.
Thompson admitted during his trial testimony that when he first spoke to the police he lied to them about Z-Money's identity. During summation the prosecution repeatedly argued that Thompson should be believed because he was a disinterested witness with no motive to lie. That claim was left uncontested by Mr. Scott because, without arguing that Z-Money was the shooter, there was no basis to argue Thompson had a significant motive to lie because of his connection to Z-Money. Z-Money got "girls" for Thompson, a 59 year-old man, in return for money. That was apparently the reason Thompson took trips from Connecticut to Harlem. As the defense argues, their relationship was not a "friendship. It was transactional and inferentially criminal". Had Z-Money been incarcerated for Mr. Viera's murder the supply of girls might end. Had Mr. Scott argued Z-Money was the shooter the jury would have been left with the contrast of a potentially disinterested witness — the 911 caller, with a witness who had extraordinary strikes against his credibility and a clear motive to fabricate.
Telephone records Mr. Scott failed to present also supported the argument that Z-Money was the killer. He called the same number Jamal Smith called shortly before and after the shooting. But Mr. Scott failed to investigate these records. Z-Money and S-Dot were seen together in the days after the shooting and S-Dot was heard apparently taking responsibility for Mr. Viera's murder. This evidence could have been investigated and potentially presented to again support the inference that the conflict between S-Dot and Z-Money had been resolved and potentially uncover the reason for that reconciliation.
Not arguing that Z-Money was the killer meant Mr. Scott could reasonably agree to a stipulation that Z-Money had simply passed away rather than was murdered. Arguing Z-Money was the killer would have required a further investigation and may have led to the conclusion that an argument should be made that the jury know about Z-Money's murder.
The Failure to Argue that the Confession Contradicted the Conclusive Trial Evidence
To avoid a conviction the defense obviously had to convince the jury that Mr. Johnson's confession was false. Mr. Scott argued that point extensively in his summation. But his argument was largely generic, making general points any defense attorney might make when trying to convince a jury of a false confession. He argued that Mr. Johnson had been coerced and duped into confessing and that the detectives spoon fed him facts which then allowed him to construct a narrative consistent with the evidence. He made specific arguments about why Mr. Johnson's confession was coerced.
In the Court's view, however, the summation was also grossly deficient because it provided no examples of how Mr. Johnson's confession contradicted the evidence. It provided no examples of how the police, in ways explicit and subtle, tried to shape Mr. Johnson's story to [*16]fit the facts. His confession in some ways mirrored the evidence. But in other ways, it was strikingly inconsistent. Pointing out these inconsistencies and the police efforts to shape them could have provided a persuasive argument that Mr. Johnson's confession was false. But Mr. Scott did not mention a single one of these contradictions in his summation and did not question Detective Rivera about any of them.
The evidence indicated that Mr. Viera was shot 3 times, that 5 shell casings were recovered and that all of the ballistic evidence came from the same gun. Mr. Thompson in his statement to the police said Mr. Viera had been shot at least 4 times. During his grand jury testimony he said he had heard "pow, pow, pow, pow, pow, pow". Z-Money told the police he heard 5 shots, the same as the number of shell casings. DD-5 # 52. The eyewitness who identified Z-Money as the shooter told the police he heard 3 shots. DD5 # 4. Mr. Johnson in his two videotaped statements, however, repeatedly said he was sure he had fired twice. He was briefly quizzed about that 8 more times during his interviews. He never wavered.
The trial evidence indicated that the shooter arrived at the car where Mr. Viera was present, touched hands with him, spoke to him briefly, then shot. Mr. Thompson during his grand jury testimony estimated the shooter had been at the scene for about 30 seconds. He said he had gotten only a "quick look" at him. Tyrone Alston, sitting next to Mr. Viera at the time of the murder, repeatedly said the shooter had "run up" or "ran up" and shot. He then clarified he meant the shooter "came up" and shot. In his interview, however, Mr. Johnson said he had been at the scene of the shooting for no more than 5 minutes or for 5 minutes "more or less" before he fired. When ADA Foster then said: "5 minutes is a long time", Mr. Johnson said he was there for 2-3 minutes
The trial evidence clearly indicated that there were four people in the car when Mr. Viera was murdered. Mr. Johnson in his interview said that while there had been four people in the car earlier, he was sure there were two people in the car when he shot. The police and prosecutor questioned Mr. Johnson about that point repeatedly. He never wavered.
Mr. Johnson said that after the shooting, he walked east towards Lenox Avenue. He was then told repeatedly by his questioners that he walked west towards 7th avenue. Mr. Johnson never changed his account. He said he had only one digital communication with Z-Money on the night of the shooting. He was told repeatedly by his questioners, however, that phone records indicated he was in "constant communication" with Z-Money.
In a video prior to the shooting Mr. Johnson was seen walking with another person. He said during his interview, however, that he didn't know who that person was. Johnson in his confession outlined how he had gotten the murder weapon from S-Dot and then returned the gun to him after the shooting. The trial evidence indicated, however, that the gun was given to Smith and the People's theory of the case (which was not argued at the trial) was that Smith (not S-Dot) had given the gun to Mr. Johnson. People's response to Defendant's original motion, ¶ 5. In his second interview, Mr. Johnson repeatedly said he had gotten out of a cab from the Bronx and then came upon the car where Mr. Viera was shot. After ADA Foster said there was a part of this narrative he "didn't hear" and that Mr. Johnson "left this out of the narrative", ADA Foster recounted how Mr. Johnson met with S-Dot in a car after arriving from the Bronx, prior to the murder. Mr. Johnson then confirmed ADA Foster's account.
Johnson's overall narrative of the relevant events was also plainly wrong. In his second interview, he said that S-Dot called him after the deli fight. Johnson then took a cab from the Bronx to Manhattan and met S-Dot in a car where he received the gun. The car went around the [*17]block. Johnson then called Z-Money and met him on the street. Johnson then went to the car and shot Mr. Viera after being there for 2-3 or 5 minutes. But the deli fight occurred 45 minutes before the shooting. It would have likely been impossible for all of these events to have occurred between S-Dot's call, which came after the deli fight, and the murder. But Johnson's narrative was also plainly contradicted by the People's cell phone evidence. It showed Johnson's phone in Manhattan at the time he said he was first in the Bronx and then traveled to Manhattan.
The People in their summation said Johnson's statements were reliable because the police asked questions they knew the answers to. February 27 trial transcript, p. 578. They asserted that "[t]he defendant's confession is believable because almost every aspect of what he says is corroborated by other evidence". Id., p. 519. The jury never heard the far more compelling contrary argument. Johnson's confession was obviously unreliable. It was flatly contradicted by the conclusive trial evidence in numerous foundational ways.
Additional Attacks on the Confession Which Were Not Pursued
Mr. Scott during his examination of Mr. Johnson briefly elicited that he had previously used drugs, was a high-school drop-out and had been diagnosed with bi-polar disorder. He did not argue in summation, however, that Mr. Johnson's confession was unreliable because he had a serious psychiatric illness, a history of drug abuse, was a high-school drop-out, referred to himself in the third person during his testimony and did not appear to understand basic questions on cross-examination. It is not clear whether Mr. Scott ever attempted to obtain Mr. Johnson's psychiatric records. Since these issues were not explored during the hearing, however, and the defense did not claim these omissions were problematic, the Court cannot conclude they impacted Mr. Scott's effectiveness. Mr. Scott also did not seek to call an expert witness on wrongful confessions but there is no claim that was error.
The Failure to Submit a Motion to Controvert
the Search Warrant For the Defendant's Phone
Mr. Scott made a motion to controvert the search warrant for the Defendant's phone in his omnibus motion. In its November 19, 2015 decision on the motion, however, the Court ruled that this portion of the motion "is held in abeyance pending the defendant receiving the search warrant from the People and filing a motion to controvert". That motion, however, was never made. In his affidavit Mr. Scott said he had no strategic reason for not filing it.
The search warrant was signed on August 5, 2015. Its most obvious deficiency was that it did not specify any crime for which probable cause existed. It simply said there was reasonable cause to believe there would be evidence of an unspecified "offense" in the phone and referenced "above-described crimes" (search warrant, p. 1, ¶ c) which were nowhere described in the warrant. The suspected crime was specified in the affidavit. But the failure to specify any crime for which evidence could be seized in the warrant itself was a foundational error which would have required suppression. See People v. Gabriel, 58 Misc 3d 1230 (A) at 3 (Sup Ct., NY County 2017); People v. Covlin, 58 Misc 3d 996 (Sup Ct, NY County 2018) (decision of this court) United States v. Galpin, 720 F3d 436, 447 (2nd Cir 2013) (search warrant authorizing search for evidence of "violations of 'NYS Penal Law and Federal Statutes'" violated the particularity requirement of the Fourth Amendment); People v. Melamed, 178 AD3d 1079, 1080 (2nd Dept 2019) (suppression of warrant materials granted partly because "[t]he warrant did not name or specify any particular crime or offense to which the search was related, and did not incorporate the affidavit by reference").
As the United States Supreme Court specified in Groh v. Ramirez, 540 US 551 (2004) [*18]the Fourth Amendment requires particularly in the warrant itself, not just the affidavit, unless the provisions of the affidavit describing the subject crimes are incorporated by reference and the affidavit accompanies the warrant. The boiler-plate phrase in the search warrant in this case: "Proof by affidavit having been made" (first paragraph) did not constitute an incorporation of the affidavit by reference. See Groh, 540 US at 557-558. There is also no contention that the affidavit accompanied the warrant when it was executed.
A second deficiency in the warrant was that it authorized a search of the Defendant's cell phone with no limitation. The search was not date limited, although there was probable cause to believe relevant information might be uncovered only for dates relevant to the commission of the murder. It was also not limited in any other manner. Such a warrant, if signed today, would likely be controverted for that second, independent reason. See People v. Thompson, 178 AD3d 457 (1st Dept 2019) (controverting search warrant for digital data which contained no date restrictions for certain categories of cell-phone information); People v. Musha, 69 Misc 3d 673 (Sup Ct, NY County 2020) (similar).
Trial courts around the time Mr. Scott failed to move to suppress the results of the search warrant, however, often did not suppress such warrants because they contained no date or other limitations. See, e.g., People v. English, 52 Misc 3d 318 (Sup Ct, Bronx County 2016). The People in their March 11, 2022 response opposing the Defendant's original motion offered no arguments in opposition to the Defendant's search warrant claim.
In the Court's view, Mr. Scott's failure to file a motion to controvert when invited to do so by the Court clearly fell below an objective standard of reasonableness. The defense in their submission outlined a number of ways in which the evidence from Mr. Johnson's phone was inculpatory because it connected him to other persons relevant to the murder and placed him at the scene. Those connections, however, also came from other independent evidence at the trial. The failure to move to controvert the invalid search warrant, however, when combined with the other errors here, was prejudicial and contributed to counsel's ineffectiveness.
Failure to Challenge Video Compilation Annotations
During the trial, the People presented extensive video surveillance of blurry figures on a dark night walking or running near the murder scene. They inserted color-coded arrows above each person and those arrows were then correlated with color coded digital phone evidence which identified the names of the phone holders with the same colors as the arrows. The effect was to identify each image as one of the participants in the videos. Two cars were also identified with color-coded arrows. The Defendant acknowledges that Jamal Smith was properly identified as one of these images. Mr. Thompson, during his trial testimony, also identified Z-Money in some video clips. The Defendant argues that the other images: of S-Dot, Mr. Johnson and cars relevant to the murder were not properly identified by any witness. S-Dot was marked with a green arrow. Mr. Johnson was marked with a yellow arrow. The yellow-arrowed figure was shown in a number of the video clips walking or running near the murder. People's witness Warren Sell, a district attorney's office employee, testified that he inserted arrows in the relevant places based on directions from prosecutors. February 21 trial transcript, p. 319.
The People did not respond directly to the defense arguments and case citations on this issue. They rather argued that it was up the jury to determine who the persons on the video were and that there were unique features about Mr. Johnson which allowed his identification. People's response to Defendant's original motion, ¶ 17. Mr. Scott did make an unspecified objection, [*19]however, not to the video evidence, but to the receipt of the PowerPoint, where the color-coded arrows were linked to specific phone holders. Id. p. 375. Detective Worthington also identified some of the arrows, although not Mr. Johnson's, in the deli video.
It is clear that the arrows served as the equivalent of identifications. But no competent witnesses identified some of the figures, including Mr. Johnson. "A lay witness may offer an opinion about the identity of a person captured in a photograph or videotape to aid the jury in cases where the witness is more likely to correctly identify the person than is the jury". People v. Coleman, 78 AD3d 457 (1st Dept 2010). Mr. Sell and Joseph Perri (a second People's witness who testified regarding the videos) apparently had no knowledge beyond the jury's which allowed them to identify the video participants. The effective identifications were rather made by the prosecutors, who did not testify. The identifications proceeded through color-coded arrows, which first linked videos with each other and then, through the color-coded phone evidence, effectively put a name to each color.
Mr. Scott's failure to object to the color-coded video clips or even ask questions about them fell below an objective standard of reasonableness. In the Court's view, any such objection should have been sustained. There would be nothing wrong with the People inserting arrows over each subject which did not serve as identifications. Enhancements which highlight video evidence to direct attention to certain locations are permissible.
It is also not clear to the Court, however, that the trial judge would have sustained any such objection. The point here was subtle. The People did not present an incompetent witness who testified, for example, that Mr. Johnson was the figure under the yellow arrows. The effective identification proceeded in multiple steps and was in part permissible. Mr. Scott also did object to the presentation of the Power Point, which was a necessary link to establish the identifications. He should have explained his objection and objected to the introduction of the videos. But, had his objection to the PowerPoint been sustained, the effective identification of Mr. Johnson would not have occurred. As the People point out, there were also features of the yellow-arrowed figure which allowed the jury to conclude it was Mr. Johnson. Even absent the color-coded arrows, the People could have argued that point on summation. Given all of these factors, while the Court believes Mr. Scott's failure to object to the videos fell below an objective standard of reasonableness, it does not believe the error was prejudicial under the state or federal constitutional standards.
Failure to Challenge Cell-Site Location Information
The Defendant finally argues that Mr. Scott was ineffective in failing to challenge the introduction of three days of retrospective cell-site location information ("CSLI") concerning Mr. Johnson during the period of May 7 — May 9, 2015. The Defendant points out that no warrant was obtained to access this information, argues that the order for the CSLI signed by the Court was not based on probable cause and that the order was therefore unlawful pursuant to the decision of the United States Supreme Court in Carpenter v. United States,138 S. Ct. 2206 (June 22, 2018). The Court in Carpenter held that obtaining 7 days or more of CSLI (not the 3 days here) constituted a search generally requiring a search warrant.
The People's CSLI order was signed on June 18, 2015. The trial commenced with jury selection on February 14, 2017, about 16 months before Carpenter. The Defendant acknowledges that any motion to suppress this evidence based on a lack of probable cause at [or before] the Defendant's trial "would have been futile". Defendant's original motion, p. 40. The defense also acknowledges that it was "settled law" in New York at the time that probable cause [*20]was not required to access historic CSLI, citing People v. Hall, 86 AD3d 450 (1st Dept 2011). Id.
The defense argues however, that the Defendant may raise a claim based on a Carpenter violation through a direct appeal and even through a post-judgment motion although Carpenter post-dated his trial. Regardless of the merits of those arguments generally, however, in the Court's view, Mr. Scott's performance must be judged based on the law which existed when any suppression motion may have been made. This would have been prior to the beginning of the trial in February of 2017. Any motion made to suppress the cell site location data at that time would have been futile. "There can be no denial of effective assistance of trial counsel arising from counsel's failure to make a motion or argument that has little or no chance of success". People v. Caban 5 NY3d 143, 152 (2005) (internal quotation omitted). Given this conclusion the Court has not addressed two other arguments the People raise: that their submission in support of the CSLI order, while not a formal search warrant affidavit, established probable cause and that Mr. Johnson was not prejudiced by the CSLI.
Counsel's Errors Clearly Fell Below an Objective Standard of Reasonableness
The People argue that Mr. Scott's conduct was reasonable given the overwhelming evidence of the Defendant's guilt. They assert that the notion Z-Money should have been posited as the killer "is so unpersuasive that it belies common sense" since S-Dot had a conflict with the victim and was thus the most likely alternative suspect. People's response to Defendant's original motion, ¶ 16. The People also repeatedly say they had additional witnesses they did not call at the trial who would have inculpated Mr. Johnson had Mr. Scott pursued a different strategy. Id.; ¶ 17. Alston and Farmer are repeatedly cited as the missing witnesses. Both Alston and Farmer, however, testified at the trial. Alston said he could not identify the shooter. Farmer took the witness stand, refused to answer questions and was held in contempt.
With respect to the first prong of the federal and state ineffectiveness standard, an attorney's performance must be "objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney". People v. Mendoza, 33 NY3d 414, 418 (2019) (quotation omitted). "[A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues". Strickland, 446 US at 685. In the Court's view no such adversarial testing occurred with respect to the errors here.
Counsel's chosen third-party defense would have been reasonable if it was at least as viable as the argument that Z-Money was the shooter. See People v. Clark, 129 AD3d 1 (2d Dept 2015), aff'd 28 NY3d 556 (2016). But that was not the case. The Z-Money theory could have been supported by an identification by an apparently disinterested witness made shortly after the shooting corroborated by a 911 call; a clear motive; Z-Money's extensive efforts to keep Mr. Viera at the place the shooting occurred; Z-Money's presence at the scene; his conflicting stories about his location; his own murder and Mr. Viera's own words moments before he was shot. In contrast, Mr. Scott's summation positing a "strong presumption" or a "strong inference" that S-Dot and Jamal Smith committed the murder (without even specifying which one pulled the trigger) was devoid of evidentiary support and clearly refuted by the trial evidence. See People v. LaBree, 34 NY2d 257, 259 (1974) (counsel ineffective, in part, for presenting a self-defense argument in summation without substantiation).
Effective representation includes the right to have counsel "conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed". People v. Bennett, 29 NY2d 462, 466 (1972) (internal quotation omitted). Counsel did not pursue multiple areas of obvious investigation which may have developed dispositive [*21]exculpatory evidence, including: (i) investigating the eyewitness who claimed to see Z-Money commit the murder, to see if the witness would be able to testify at the trial; (ii) investigating phone records which would have refuted the People's contention that Johnson was the only relevant person in contact with Jamal Smith at the time of the murder; (iii) investigating the phone calls between Z-Money and Smith's neighbor to see if they supported a connection between Smith and Z-Money concerning the shooting; (iv) investigating Z-Money's murder, to see if its circumstances may have supported the contention that Z-Money shot Mr. Viera, and (iv) investigating the phone calls between Jamal Smith and KZ2 shortly before Thompson's belated identification to see if those calls had any connection to Thompson's changed story.
Attorneys have been found ineffective for failing to conduct investigations under less egregious circumstances. See People v. Lanier, 191 AD3d 1094 (3rd Dept 2021) (counsel ineffective for failing to investigate witness who was reported to have refuted the testimony of the eyewitness who saw the defendant attempt to kill the victim). As was true under different circumstances in People v. Oliveras, 21 NY3d 339, 348 (2013), "this was a case of a lawyer's failure to pursue the minimal investigation required under the circumstances".
To be ineffective, it must be demonstrated that counsel's claimed errors reflected "the absence of strategic or other legitimate explanations for counsel's alleged shortcomings". People v. Benevento, 91 NY2d 708, 712 (1998). That is clear here. Indeed the only evidence this Court is aware of that Mr. Scott had any strategic explanation for any of the deficiencies in this case came in his incredible testimony regarding his decision not to argue that Z-Money was the shooter. After testifying that he had no strategic explanation for that failure and outlining how he did not recall even the most basic facts about the trial, in response to a leading question, he said it was "fair to say" he did not make that argument because Mr. Viera and Z-Money were friends and Z-Money had extricated Mr. Viera from the deli fight. That statement not only directly contradicted his earlier testimony in multiple respects. It was contrary to what, in the Court's view, was the far more compelling argument for why Z-Money had an incentive to kill Mr. Viera: to make things right with S-Dot, who was angry at Z-Money for protecting Mr. Viera.
Counsel Was Ineffective Under the State Constitutional Standard
Under the State Constitution, the prejudice prong of the ineffectiveness analysis considers whether counsel's conduct deprived the defendant of a fair trial. Id., at 713. But a determination that, but for counsel's unprofessional errors, the result of the trial would have been different is not required:
the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case. . . . Thus, whether defendant would have been acquitted of the charges but for counsel's errors is relevant, but not dispositive under the State constitutional guarantee of effective assistance of counsel. . . . our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence. Id. at 714.The errors here concerned multiple issues which reinforced each other. Not arguing Z-Money was the shooter foreclosed compelling arguments which would have undermined the credibility of the sole witness who identified Mr. Johnson. Presenting a defense which contradicted his own client undermined Mr. Johnson's credibility which in turn was essential for the jury to conclude his confession was false. Not investigating the phone records eliminated obvious arguments — like the fact that the People's contention that Johnson was the only relevant [*22]person who communicated with Smith on the morning of the murder was inaccurate — but also foreclosed additional avenues of investigation which may have produced additional exculpatory evidence. Not pointing out the myriad specific important ways in which Mr. Johnson's confession clearly contradicted the conclusive trial evidence eliminated an argument which may have led the jury to conclude the confession was unreliable. "Even where counsel's errors individually may not constitute ineffective assistance, the cumulative effect of defense counsel's actions can deprive defendant of meaningful representation". People v. Wright, 25 NY3d 769, 779 (2015).
In the Court's view, Mr. Scott's failure to move to suppress the results of the invalid search warrant had less of an impact than the other errors. A failure to move to suppress evidence without justification, however, has been found ineffective in other cases, even when that was the primary basis for the claim. See People v. Bilal, 27 NY3d 961 (2016) (defendant denied meaningful representation where counsel without justification failed to move to suppress gun); People v. Donovan, 184 AD2d 654, 655 (2d Dept 1992) (conviction reversed where counsel was ineffective for failing to move to suppress results of search of defendant's person and made additional errors).
Under the New York State constitutional standard, courts have found lawyers ineffective without determining the results of a proceeding would have been different but for counsel's errors. See e.g., People v. Webb, 90 AD3d 1563 (4th Dept 2011), lv denied 18 NY3d 994 ((2012); People v. Gavalo, 87 AD3d 1014 (2nd Dept 2011); People v. Miller, 63 AD3d 1186, 1188 (3rd Dept 2009) (despite "strong evidence" of defendant's guilt, counsel was ineffective; harmless error doctrine does not apply to such claims under the State Constitution). In the Court's view, counsel's omissions and errors deprived Mr. Johnson of a fair trial.
Counsel Was Ineffective Under the Federal Constitutional Standard
With respect to prejudice, the Supreme Court in Strickland held that a "defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case". 466 US at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome". Id. at 694. "[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt". Id. at 695.
While the prejudice analysis under the State Constitution is amorphous, the federal standard requires a more precise assessment which is difficult because it requires a prediction about how a fact finder would have assessed a case absent counsel's errors. That is particularly difficult in this case for two reasons. First, the evidence against the Defendant was significant. Second, counsel's failures consisted of both errors in how evidence was presented and a lack of investigation which could have produced additional exculpatory evidence. With respect to those investigations, however, it is obviously impossible to predict what fruits would have been obtained.
There was powerful evidence, however, that Z-Money was the shooter. Thompson's testimony, already subject to significant credibility issues, would have become even more suspect if he was impeached with his motive to protect Z-Money. The connection between Smith and Johnson would have been undermined by evidence that Smith was in close contact with other potentially relevant persons on the morning of the shooting. Johnson's credibility would have been enhanced, if Scott's chosen defense did not implicitly paint him as a liar. [*23]Effective questioning or an effective closing argument about the compelling discrepancies between Johnson's confession and the evidence may have led jurors to have a reasonable doubt about whether that confession was true.
Having the jurors learn that Z-Money was murdered shortly after Mr. Viera's murder may have raised questions about whether that murder was committed in retaliation for Mr. Viera's killing. Not moving to controvert the results of the obviously invalid search warrant allowed the People to present inculpatory evidence which was unlawfully obtained. All of this occurred without additional possible exculpatory evidence which may have come from additional investigations which were never pursued. Across the breadth of the evidence and discovery in this case, the person most connected to the events of the murder was not Mr. Johnson. It was Z-Money.
For all of those reasons, the Court holds that the defense established prejudice under the federal standard and holds that counsel provided ineffective representation under both the state and federal constitutions. Mr. Johnson's convictions are therefore vacated. This order shall be stayed for 30 days. This constitutes the Decision and Order of this Court.
September 14, 2023_________/S/__________
Daniel Conviser, A.J.S.C. Footnotes
Footnote 1: The Court has used the street or slang names for Shawn Young ("S-Dot") and Azziz Muhammed ("Z-Money") since those names were used in the source materials. The Court has used the full name of the victim, Deiondre Viera ("Mr. Viera").
Footnote 2: The factual assertions in the defense submissions on this motion were supported by citations to factual records. The People's factual assertions generally did not provide annotations.
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