Shortly after noon on November 21, 1996, the bodies of 79 year-old Archie Harris and 35 year-old Betty Ramcharan were discovered inside of Harris' Eastchester home. Harris had been beaten, bludgeoned and stabbed to death, while Ramcharan had been strangled and suffocated and her throat had been slit. A bloody kitchen knife was found lying near Ramcharan. More than five years later, on February 16, 2001, the defendant, Selwyn Days, was arrested in connection with these homicides and more than seven years later, on April 16, 2004, following a second jury trial, the defendant was convicted of two counts of murder in the second degree, Penal Law § 125.25, for the intentional homicide of both Mr. Harris and Ms. Ramcharan. He was thereafter sentenced to two consecutive terms of 25 years to life imprisonment.

Three years later, by order to show cause filed on August 17, 2007, the defendant moved, through counsel, for an order pursuant to Criminal Procedure Law § 440.10(1)(h), vacating the judgment on the ground that it was obtained in violation of the defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 6 of the New York State Constitution, to due process and the effective assistance of counsel. On October 17, 2007, the People filed an affirmation in opposition to which the defendant filed a reply dated January 3, 2008. On January 31, 2008, the People filed a sur-reply. Thereafter, by notice of motion dated June 25, 2008, the defendant supplemented his initial application and moved for an order vacating the judgment and dismissing the indictment on the ground that he is actually innocent of the crimes of which he was convicted pursuant to Criminal Procedure Law § 440.10(1)(h), Judiciary Law § 2(b)(3), as well as the Federal and State Constitutions. On August 22, 2008, the People submitted a memorandum of law in which they opposed the defendant's motion and on September 23, 2008, the defendant filed a reply. Lastly, on February 25, 2009, the defendant moved for an order pursuant to Criminal Procedure Law § 440.10(1)(g), vacating the judgment on the ground that new evidence —recent DNA test results— has been discovered since the entry of judgment which the defendant could not have produced at the earlier trial even with due diligence on his part and is of such character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to him. The People submitted an affirmation in opposition on March 16, 2009, to which the defendant filed a reply on March 20, 2009.

Ultimately, this court ordered a hearing with respect to all three issues that the defendant raised: ineffective assistance of counsel; newly discovered evidence and actual innocence, which hearing was held on June 8, 2009; June 10 - June 12, 2009; June 17- June 18, 2009; and June 24, 2009. The court heard testimony form Remona McIver, Perry Sharp, Cindy Artis, Donald Evans, Kevin MacLaren, Sandra Thomas, Elaine Schwartz, Robert Adamo and Christopher Chan, following which the defendant filed a memorandum of law on July 13, 2009. The People submitted a memorandum of law on [*2]July 22, 2009, and on August 4, 2009, the defendant filed a reply memorandum of law. In addition, the defendant submitted a letter dated August 7, 2009, attaching two recently published opinions which address claims of actual innocence, People v Wheeler-Whichard, 25 Misc 3d 690 (Sup Ct. Kings Co 2009), and People v Bermudez, Indictment Number 8759/91, Supreme Court, New York County, August 5, 2009. In a letter to the court dated August 13, 2009, the People responded to the defendant's letter. Since then, the Bermudez court issued its ruling post-hearing, see 25 Misc 3d 1226(A), and two other court's have issued written opinions regarding claims of actual innocence, People v Bryant, 25 Misc 3d 1206(A)(Sup Ct. Bronx Co. 2009), and People v Bozella, 25 Misc 3d 1215(A)(County Ct. Dutchess Co. 2009). On this record, the court determines the defendant's applications as follows.

Ineffective Assistance of Counsel

The crux of the defendant's claim that he was denied the effective assistance of counsel rests on the purported failure of his trial attorney to fully investigate and then present to the jury an alibi defense. Additionally, the defendant asserts that trial counsel's failure to review Brady material, see Brady v Maryland, 373 US 83 (1963), also rendered him ineffective within the meaning of the Constitution.

In support of his alibi claim, the defendant proffered, inter alia, the testimony of four witnesses at the hearing, Remona McIver, Cindy Artis, Perry Sharp and Donald Evans. Having heard their testimony and seen their demeanor on the witness stand, the court finds that each was credible. All of these witnesses appeared to testify honestly and forthrightly with their demeanor and body language in accordance with their words. The defendant maintains that these witnesses, along with others, establish that he was in Goldsboro, North Carolina, at the time the double homicide was committed: November 19, 1996, to November 21, 1996.^[FN1]

Briefly, Remona McIver testified that she has been a magistrate in North Carolina for approximately the past 22 years. She met the defendant's mother, Stella Days, when she came into McIver's office one day to inquire about taking out a warrant for a minister who had broken her teeth. She later met the defendant in the latter part of 1996.

Magistrate McIver also encountered Stella Days when she came to McIver's office seeking a warrant for the defendant's girlfriend, Cindy Artis, who Stella alleged had threatened her. Magistrate McIver recalls that the defendant was with his mother at this time and that they argued in her office over the request for the warrant. Not surprisingly, [*3]the defendant did not want his mother to press charges. Magistrate McIver, who had mentioned some medical problems to which Stella Days, a nurse, suggested that McIver drink a lot of water, also recalled that the defendant brought her a gallon of water and set it on her desk about 15 minutes after she issued the arrest warrant for Ms. Artis. Relying predominately on a Criminal Process Update, a document generated as a criminal process through the clerk's office, Magistrate McIver averred that the date of the alleged offense was November 20, 1996, and that she issued the warrant on November 21, 1996. Accordingly, she stated unequivocally that the defendant was in her office in North Carolina on November 21, 1996. However, she could not tell the court that the defendant was in her office on November 17, 1996, November 18, 1996, November 19, 1996, or November 20, 1996.

Magistrate McIver related further that pursuant to Stella Days' request, she forwarded a letter, dated September 2, 2003, to the defendant's attorney, Christopher Chan, in which she stated in full "SELWYN DAYS WAS IN MY OFFICE SOMETIMES DURING THE LAST OF THE YEAR IN 1996. HE GAVE ME A JUG OF WATER. I CAN NOT REMEMBER THE MONTH OR THE DATE." See Defense Exhibit D(capitalization in original.). Because North Carolina magistrates do not have letterhead, this correspondence was typed on a plain white sheet of paper. Although she initially testified that she did not review any documents prior to writing this letter, Magistrate McIver subsequently clarified her testimony to assert that she did go to the computer system to pull up the Criminal Disposition Update and Criminal Process Update, Defense Exhibits A and B respectively, and refresh her memory, but that she did not print the documents prior to writing the September 2, 2003 letter.

Perry Sharp, who retired in 1999 as a captain with the Goldsboro, North Carolina police department, next testified regarding his pertinent interactions with the defendant in Goldsboro. Captain Sharp recalled first meeting the defendant in Goldsboro in late 1993 or early 1994. Furthermore, Capt. Sharp recalled a dispute between the defendant's girlfriend, Cindy Artis, and the defendant's mother, Stella Days. Specifically, Capt. Sharp testified that he responded to Selwyn and Stella Days' residence and that the defendant answered the door. After about a three minute conversation with the defendant, Capt. Sharp learned that Stella Days was at her sister's house and he proceeded there. Capt. Sharp then talked to Stella Days at her sister's home and although Stella Days appeared extremely angry and upset when he spoke with her regarding the incident with Cindy Artis, it was his impression that Stella Days was going to let the matter drop. Moreover, while Capt Sharp could not recall the specific date on which these events took place, he recalled, as he always has, that they occurred a day or two prior to Thanksgiving in November of 1996, the reason being that at the time he spoke to Stella Days regarding the Artis incident, Ms Days and her sister were preparing for a yard sale. Stella Days' sister's house had dresses and other clothes out, along with figurines, costume jewelry and she and her sister were putting necklace beads in a jar. The yard sale was to take place on the [*4]Saturday after Thanksgiving, which the witness essentially found foolish. Capt. Sharp thought no one is going to be interested in a yard sale at Thanksgiving time.

Thereafter, Capt. Sharp learned, probably in 2001, when Stella Days contacted him, of the defendant's arrest for murder. In 2003, Capt. Sharp spoke to the defendant's attorney, Christopher Chan, once for approximately one-half hour over the telephone. He does not recall speaking to anyone else about the defendant's case prior to the defendant's conviction and he cannot say with any certainty that the defendant was living in Goldsboro, North Carolina during the entire month of November 1996.

Cindy Artis, now known as Cindy Ramona Dawson, also testified regarding her knowledge of the defendant's whereabouts in November of 1996. Ms. Dawson too lived in Goldsboro, North Carolina and at the end of October of 1996, shortly after the conclusion of her own criminal trial in September of 1996, she there met the defendant. They began dating the following day and continued to do so for approximately one and one-half months. They spoke on the telephone daily and Ms. Dawson is "very confident" that she "probably saw" the defendant everyday when they were dating.

One day when Ms. Dawson called the defendant, his mother answered the telephone and then accused the witness of living at the Days' house and leaving some belongings there. Ms. Dawson denied that she was living there and denied that she left any belongings there. The two had a rather heated argument over the telephone. Not too long afterward, the defendant telephoned Ms. Dawson and advised her that his mother had obtained a warrant for her for communicating threats. Ms. Dawson saw the defendant again after this incident with his mother, but they were no longer dating. They mostly spoke to each other over the telephone.

In 2004, Ms. Dawson learned from Stella Days that the defendant was on trial for murder. Approximately one year ago, Stella Days again located her and asked Ms. Dawson to swear out an affidavit stating that Ms. Dawson was living at Stella Days' house. Because the witness had never lived at the Days' house, although she had spent a couple of nights there, Ms. Dawson refused. Essentially, Stella Days wanted Ms. Dawson to say she was at the Days' house when Ms. Dawson could not swear to being there. Stella Days then indicated to Ms. Dawson that if the defendant gets released and gets a lot of money, they would make sure that she was taken care of, that she could stop working. Stella Days' comment did not help her cause and Ms. Dawson still did not sign an affidavit. Similarly, Ms. Dawson declined to sign an affidavit when one of the defendant's current attorneys contacted her prior to April of 2008.

In sum, Ms. Dawson could not recall the specific dates on which particular incidents occurred, but she maintains that she did see the defendant, Selwyn Days, every day in Goldsboro during November of 1996.

The defendant also presented as a witness with information concerning his whereabouts in November of 1996, Donald Evans, who owned Crossroads Café in Goldsboro, North Carolina from 1993-2006. Mr. Evans first met Stella Days at his [*5]restaurant in approximately October of 1996. He met the defendant about one month later, around the first of November 1996. Soon thereafter, the defendant's mother asked Mr. Evans if the defendant could run a tab for meals he would eat in Crossroads Café while she was out of town working in Florida. She promised to pay the tab upon her return and Mr. Evans agreed. He recalls the time frame because he was closing a second restaurant he owned in Myrtle Beach and was busy traveling the four to five hour trip between Goldsboro and Myrtle Beach.

A couple of days after Stella Days' returned from Florida, Mr. Evans stated that he attended a yard sale at the Days' residence. This occurred on a Friday in November of 1996. After he completed the business for Crossroads Café, including the payroll, Mr. Evans went to the Days' yard sale where he saw both the defendant and his mother. Furthermore, he recalled purchasing some lawn furniture while there. Insofar as the furniture would not fit into his car, Mr. Evans returned on Tuesday of the following week to retrieve it. When he arrived, the defendant was present. Ultimately, the defendant accompanied Mr. Evans to his house with the lawn furniture and when they arrived the defendant saw Mr. Evans' horses. The defendant was like a little kid around them, petting them and getting acquainted with them. Mr. Evans' then averred that date on which this occurred was November 19, 1996.

After learning from Stella Days that the defendant was facing a trial for murder, Mr. Evans' spoke to Christopher Chan, the defendant's attorney, at Ms. Days' urging. According to the witness, he spoke to Chan over the telephone on two occasions and that Chan did not seem particularly interested in what the witness had to say. Evans' also signed a letter in 2003, which states that he saw the defendant daily in November of 1996, that he went to the Days' house the first week of November where a yard sale was occurring and that he and the defendant picked up Stella Days at the bus station on November 13, 1996, and while he did not author that letter, he agreed with its contents, and forwarded it to Chan. Indeed, Mr. Evans thinks he may have told Chan that the yard sale occurred on November 1, 1996, which would mean that Evans' picked up the furniture on November 5, 1996, not November 19, 1996. However, at the time he spoke to Christopher Chan, Evans did not have his 1996 calendar to review. To be sure, it was only in about January of 2009, that Mr. Evans came across his 1996 calendar. Upon reviewing it and the notations it contained, Mr. Evans can now be explicit that the lawn furniture transport occurred on November 19, 1996, and thus he saw the defendant in Goldsboro, North Carolina on November 19, 1996. He can also now be sure that despite the contents of the 2003 letter, he could not have picked up the defendant's mother at the bus station in Goldsboro on November 13, 1996, because he was in Myrtle Beach that day. Likewise, contrary to his assertion in the 2003 letter, he could not have seen the defendant around Goldsboro every day in November of 1996, as he was traveling throughout the month.

Mr. Evans' calendar catalogs his schedule throughout the year 1996, including his [*6]travels. Although Evans testified to his practice concerning the circumstances under which he would note a particular city in his calendar, a careful review of the calendar revealed that his "practice" was, at a minimum, inconsistent. Nevertheless, Mr. Evans' calendar notations for the possible Friday-Tuesday combinations in November 1996 are Nashville, Goldsboro and Lagrange on Friday, November 1, 1996, Wilson on Election Day, Tuesday, November 5, 1996, about 30 minutes away; Goldsboro, on Friday, November 8, 1996, Myrtle Beach on Tuesday, November 12, 1996, Goldsboro, on Friday, November 22, 1996, Myrtle Beach on Tuesday, November 26, 1996, Goldsboro, on Friday, November 29, 1996, and Pinehurst, North Carolina on Tuesday, December 3, 1996. The calendar is blank for Friday, November 15, 1996, and Tuesday, November 19, 1996. Mr. Evans did nonetheless produce a bank deposit slip indicating that he made a deposit into his personal account on November 18, 1996, at either a branch in Pikesville or Freemont, which are respectively approximately eight and ten miles away from Goldsboro.

In short, Mr. Evans is confident of the dates in and the accuracy of his 1996 calendar. The only date on which he could have moved the lawn furniture with the defendant was November 19, 1996.

Finally, the defendant's attorney, Christopher Chan, Esq., testified at the hearing. Mr. Chan, a seasoned defense attorney handling criminal cases, represented the defendant at both of his trials, the defendant's mother having retained Chan to represent her son on or about February 2, 2003. Ultimately however, Chan was assigned as counsel. According to Chan, the primary evidence against the defendant consisted of the defendant's confession and there were also admissions that the defendant purportedly made to Cherilyn Mayhew. At the defendant's first trial, the defense argued that there was insufficient evidence to establish the defendant's guilt beyond a reasonable doubt. While the defendant also endeavored to elicit evidence that a third-party was responsible for the murders, the trial court severely limited that effort, if not denying it altogether. Nevertheless, the jury could not reach a verdict and in November of 2003, the trial court accordingly declared a mistrial. At the defendant's retrial, the defense predominantly argued a murder-suicide theory: Betty Ramcharan killed Archie Harris and then killed herself, slitting her own throat, putting a plastic bag over her head and tying a rope around her neck.

Prior to both trials, Mr. Chan knew that there was absolutely no forensic evidence linking the defendant to the crimes. He was also aware of the DNA tests and their results. Chan specifically recalled the Westchester County Laboratory tests, but he has no independent recollection of any DNA tests and results of the Federal Bureau of Investigation. He cannot say whether he was aware prior to the defendant's first trial that there was DNA present from more than one individual on specimen Q21-3 as the FBI report indicates. Chan could also not recall if he ever looked at a Supplementary Complaint Report of the Eastchester Police Department, dated June 1999, Exhibit RR, [*7]which states that testing of a DNA sample taken from the knife found in the bathroom next to Betty Ramcahran reveals the presence of more than one person. In any event, Mr. Chan never contacted a DNA expert prior to either trial and never requested to have an independent DNA analysis performed. He indicated further that the FBI report evincing the presence of another person via an extra allele, would not have changed Chan's trial strategy of exploiting the lack of forensic evidence tying the defendant to the crime. It would simply have provided him with an extra argument

Mr. Chan was also aware in March of 2003 of a potential alibi defense. In fact, he sent a letter to the prosecutor on March 24, 2003, that addressed, among other things, a late notice of alibi. However, he had as yet not retained an investigator nor interviewed any of the potential alibi witnesses. Indeed, Chan had, inter alia, a financial dispute with Stella Days and as he advised the court at the end of July 2003, the defendant's mother refused to give Chan gas money to enable him to travel to North Carolina to speak with the alibi witnesses. Apparently Stella Days did not want Chan to speak directly to these witnesses as he might scare them. Chan further advised the court at this time that he would be incompetent if he continued to represent the defendant and asked to be relieved as counsel. The court denied that request as it would a subsequent application on essentially the same ground made two months later, September 30, 2003.

With respect to the witnesses that testified at the hearing, Magistrate McIver, Capt. Perry Sharp, Cindy Artis and Donald Evans, Chan does not recall if he ever spoke to Cindy Artis and Donald Evans. In addition, while he is fairly certain that he did speak to Perry Sharp, he cannot recall any of the specifics of their conversation. As to Remona McIver, Chan does not have an independent recollection of speaking with her. However, he listened to a tape recording that Stella Days surreptitiously made of a conversation Chan had with Investigator Grimes, an investigator in North Carolina whom Stella Days had hired in connection with this case, in which they discuss McIver. Chan cannot tell from the contents of that taped conversation whether he personally spoke to McIver. In any event, Chan did tell Grimes that McIver's letter was a forgery and that he could not figure out how he could get the letter from her, a purported magistrate in North Carolina, not on judicial stationary, addressed "to whom it may concern," and stating that the defendant gave her a jug of water in later 1996, but that she did not remember the month or the date. Even after reviewing Magistrate McIver's letter at the hearing, Chan indicated that it definitely looks suspicious. It was not self-authenticating. It lacked a telephone number and letterhead of any kind. In essence, it could be generated on almost any computer.

Additionally, Chan doubted some of the information that Stella Days was giving him. He suspected some of it was simply false. There was videotape ^[FN2] of some proposed [*8]alibi witnesses that Stella Days provided to Chan on which Chan clearly heard Stella Days speaking in a stage whisper and putting words into the witnesses' mouths. Moreover, Stella Days appeared stunned when Chan later explained that he could not just offer this tape into evidence at trial, that the witnesses would have to testify and be cross-examined.

Furthermore, Stella Days gave Mr. Chan the name of Adam Seiden as a potential witness in this case. Although Chan did contact Seiden, who turned out to be a judge in Mount Vernon, to ask about some real estate matter, Chan was embarrassed and dumbfounded and did not make any connection as to why Ms. Days' wanted Chan to speak with Seiden. With hindsight, Chan agreed that disproving the contents of the defendant's confession would be reasonable for an attorney defending the defendant to do. In his confession, the defendant's stated that he went back to his home in Mount Vernon after the double homicide. Yet, Judge Seiden drafted a lease between Stella Days and Mark Moore for her Mount Vernon residence that began on October 1, 1996, and lasted through November 1996, and beyond. Mr. Chan has no recollection of ever discussing such a lease with Judge Seiden.

On cross-examination, Mr. Chan opined that whether to present an alibi defense in this case was a strategic decision. He did not believe that it was the best defense. Rather, a defense of actual innocence was strongest and at both of the defendant's trials, Chan argued to the jury that there was absolutely no forensic evidence linking the defendant to the bloody crime scene. Moreover, Chan maintained that he did not receive any reliable information in support of an alibi defense, which in order to be effective, had to be complete. He believed, as noted above, that the videotape of six potential alibi witnesses —none of whom included any of the witnesses who testified at the hearing— that Stella Days provided him was fabricated and Remona McIver's letter was questionable as well. Additionally, Perry Sharp mentioned that Stella Days was selling jewelry in North Carolina. Chan knew that Ms. Days was not an affluent woman and that raised a concern about from where she obtained the jewelry as Chan also knew that items were missing from the Harris home. It gave him pause. Furthermore, Chan was aware that the People's theory of the case had Stella Days at its heart. Ms. Days had once worked as an aide for Archie Harris and that she had accused him of sexually assaulting her. Indeed, she had filed a criminal complaint and commenced a civil lawsuit against Mr. Harris as a result. In essence, avenging his mother was the defendant's motive in the slaying and Chan was reluctant to interject Stella Days any deeper into the trial. Finally, the defendant himself was aware of the dates on which the homicides could have occurred and he did not object to forgoing an alibi defense.

The defendant is, of course, guaranteed the right to the effective assistance of counsel under both the Federal and New York State Constitutions. In order to prevail on [*9]a federal claim of ineffective assistance of counsel, the defendant must "[d]emonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v Caban, 5 NY3d 143, 155 (2005), citing Strickland v Washington, 466 US 668 (1986). Prejudice exists when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."' Caban, 5 NY3d at 155, quoting Strickland, 466 US at 694. Furthermore, in general, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 US at 690-91. Counsel does have "[a] duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691.

In order to prevail on a State claim of ineffective assistance of counsel, the defendant must "[d]emonstrate that his attorney failed to provide meaningful representation," Caban, 5 NY3d at 152, citing People v Benevento, 91 NY2d 708, 712 (1998); People v Baldi, 54 NY2d 137, 147 (1981), and in contrast to the federal standard, a defendant is not required to "[f]ully satisfy the prejudice test of Strickland."' Caban, 5 NY3d at 155, quoting People v Stultz, 2 NY3d 277, 284 (2004). Although a showing of prejudice is not an indispensable element in assessing meaningful representation, it is nevertheless significant, id., and focuses on the "[f]airness of the process as a whole rather than its particular impact on the outcome of the case."' Caban, 5 NY3d at 156, quoting Benevento, 91 NY2d at 714. Furthermore, the defendant must also "[d]emonstrate the absence of any strategic or other legitimate explanation"' for his attorney's allegedly deficient conduct. Caban, 5 NY3d at 152, quoting People v Rivera, 71 NY2d 705, 709 (1988). In this regard, it may well be true that "the emphasis of some defenses over others is a matter of trial strategy that will not be second guessed. . . ."' People v Bussey, 6 AD3d 621, 623 (2nd Dept 2004), leave denied 4 NY3d 828 (2005), quoting People.v Rodriguez, 132 AD2d 682 (2nd Dept 1987). However, it is equally true that "the defendant's right to representation does entitle him to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself time for reflection and preparation for trial'"' Bussey, 6 AD3d at 623, citing People v Bennett, 29 NY2d 462, 466 (1972), quoting Coles v Peyton, 389 F2d 224 (4th Cir.), cert. denied 393 US 849 (1968)(internal quotations omitted.) Indeed, the failure to investigate is fundamental to the deprivation of the effective assistance of counsel. People v Fogle, 307 AD2d 299, 301 (2nd Dept 2003), citing Thomas v Kulman, 255 F Supp 2d 99 (EDNY 2003); People v Donovan, 184 AD2d 654, 655 (2nd Dept 1992).

Here, it is hardly surprising that Chan did not believe that an alibi was the best defense. For his, at best, cursory investigation into the existence of such defense doomed its significance from the outset. Early on, counsel knew virtually all of the alibi witnesses [*10]with the exception of Cindy Artis. Yet, he made little or no effort to determine whether those witnesses should be used at trial. To the extent he had a well-founded concern about the authenticity of the letter from Magistrate McIver, he could, as the defendant notes, have simply placed a telephone call to court officials in Goldsboro, Wayne County, North Carolina. Or, counsel could have simply asked Captain Sharp, with whom he spoke, whether he knew of a Magistrate McIver. After all Capt. Sharp was a police officer in Goldsboro and the responsibilities of magistrates there include issuing search and arrest warrants. Moreover, Magistrate McIver specifically testified that she knew Capt. Sharp.

Further, to the extent that defense counsel was justifiably concerned about the videotape of purported alibi witnesses that Stella Days had presented to him, it does not provide a blanket excuse for his failure to investigate potential alibi witnesses who were not on that tape and included otherwise prominent citizens: a magistrate, police officer and local businessman.

In addition, counsel's assertion that he dismissed Capt. Sharp as an alibi witness because Sharp mentioned that Stella Days was selling jewelry at the upcoming yard sale does reveal, as the defendant asserts, how little effort counsel expended in investigating the potential alibi. In short, Capt Sharp indicated that the jewelry Stella Days was offering for sale was costume jewelry, not valuable jewelry possibly removed from the Harris home at the time of the murders. Consequently, there was no impediment to calling Capt. Sharp as a witness who placed the defendant in North Carolina during the month of November 1996. Indeed, taken together, the alibi witnesses place the defendant in North Carolina at the time the homicides were committed.

Not to be ignored as well is trial counsel's failure to review the 1999 FBI report that the People disclosed as Brady material. Counsel admitted that he has no independent recollection of any DNA testing results of the FBI and he cannot say whether he was aware prior to the defendant's first trial that there was DNA present from more than one individual as the FBI report indicates. Significant as well is counsel's failure in recollection regarding the June 1999 Eastchester Police Department report which states that DNA testing of a sample taken from the knife found next to Betty Ramcharan reveals the presence of more than one person. While it is true, as the People contend, that counsel argued the lack of any forensic evidence linking the defendant to the crimes, the jury was not told that there was DNA from a third party on the murder weapon. And, although counsel contended that he would not have altered his trial strategy based on the FBI report, constitutionally effective counsel would have. See People v Cyrus, 48 AD3d 150 (1st Dept 2007), leave denied 10 NY3d 763 (2008).

The defense argued to the jury upon retrial a murder-suicide theory. Specifically, the jury was told that only Betty Ramcharan's DNA was found on the knife; therefore counsel asserted that she bludgeoned and stabbed Archie Harris, killing him, and then turned the knife on herself. She slit her own throat and then strangled and suffocated [*11]herself. The implausibility of this defense is apparent on its face. When coupled with the absence of any scientific evidence in support, —the medical examiner flatly rejected the theory when questioned about it and the defendant did not call an expert— it undoubtedly calls in to question the proffering of such a defense even without the evidence from the FBI report. The contents of the FBI report only serves to highlight counsel's incompetency at trial.

Finally, it can only be said that under the circumstances of this case that the defendant has "[d]emonstrate[d] both that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v Caban, 5 NY3d 143, 155 (2005), citing Strickland v Washington, 466 US 668 (1986). Indeed, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."'Caban, 5 NY3d at 155, quoting Strickland, 466 US at 694. Counsel's failure to adequately investigate an alibi defense and then present that evidence to the jury, coupled with his failure to review and rely upon the DNA testing results revealed in the 1999 FBI report as well as proffering an implausible defense to the jury, virtually assured the defendant's conviction. Had the alibi evidence and the DNA testing results been presented to the jury, the result of the trial may well have been different. Accordingly, the defendant has established that he was denied the effective assistance of counsel under the Federal Constitution. Inasmuch as our State Constitution offers greater protection, that is inadequacy of counsel will warrant reversal whenever a defendant is deprived of a fair trial even in the absence of a reasonable probability of a different outcome, see Caban, 5 NY3d at 156, it follows that the defendant has also sustained his burden of establishing that he was denied the effective assistance of counsel under our State Constitution as well.

Accordingly, that branch of the defendant's motion for an order pursuant to Criminal Procedure Law § 440.10(1)(h), vacating the judgment on the ground that it was obtained in violation of the defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 6 of the New York State Constitution, to due process and the effective assistance of counsel is hereby granted and a new trial is ordered.

Newly Discovered Evidence

Earlier this year, following an agreement between the parties, the Westchester County Department of Laboratories & Research, Division of Forensic Sciences ("Lab") re-tested several items of evidence recovered at the crime scene. On May 28, 2009, the Lab issued its final report, detailing test results from the murder weapon, a kitchen knife found near Betty Ramcharan, and a rope found in the basement of Archie Harris' home. Those results revealed that of the four new samples collected from the knife, all contained human DNA. Only one of those samples, that from the base of the blade, was of a single source, that is, from one individual, and that person is Betty Ramcharan. Three of the [*12]samples were a mixture, that is, they each contained DNA from more than one person. Ms. Ramcharan, at a minimum, cannot be excluded as a source of a profile found in each of the mixtures and the defendant's profile was not found in any of the mixtures. Archie Harris' DNA profile was also not found in any of the three mixture samples. However, in two of the three mixture samples, the Lab detected a single-source male profile.

In addition, a partial DNA profile was developed from a swabbing of the rope. Although alleles were present at only three loci, the defendant, Betty Ramcharan and Archie Harris were all excluded as potential contributors.

Asserting that had this new evidence been elicited at the defendant's trial, the verdict would probably have been more favorable to him, the defendant now seeks to have the judgment vacated pursuant to Procedure Law § 440.10(1)(g).

Criminal Procedure Law § 440.10(1)(g), permits a court to 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;

Thus, in order to satisfy the statute, the newly discovered evidence must meet six criteria: (1) it must be such as would probably change the result if a new trial were held; (2) it must have been discovered after trial; (3) it must be such as could not have been discoverable prior to trial by the defendant's exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative; and (6) it must not merely impeach or contradict evidence given at trial. See, e.g., People v Tankleff, 49 AD3d 160, 179 (2nd Dept 2007); People v Salemi, 309 NY 208, 216 (1955), cert. denied 350 US 950 (1956); People v Taylor, 246 AD2d 410, 411 (1st Dept), leave denied 91 NY2d 978 (1998), citing People v Suarez, 98 AD2d 678 (1st Dept 1983), leave denied 61 NY2d 766 (1984).

These new test results have undoubtedly been discovered after the defendant's trial. Additionally, they are unquestionably material to the issues raised at the trial and do not merely impeach or contradict evidence adduced at the defendant's trial. Similarly, the parties do not contest that this evidence is not merely cumulative. While the People do aver that, because STR DNA testing was available at the Lab by the time of the defendant's second trial in 2004, the DNA results could have been discovered prior to that trial with the exercise of due diligence, Elaine Schwartz, a senior forensic scientist and supervisor of the Forensic Biology Unit at the Westchester County Department of Laboratories & Research, Division of Forensic Sciences, informs the court to the contrary. It is true that STR testing was available at the Lab prior to 2004; indeed, it was [*13]available since 1999. However, a critical component of the recent DNA testing was the Y-filer test and the Lab's validation for such testing was not completed until the end of 2005. And, the Lab could not have used the Y-filer testing prior to the completion of the validation process. Moreover, the People acknowledge the "acute sensitivity of the modern DNA testing methodology used" in this case. See The People's Post-Hearing Memorandum of Law for the Denial of the Defendant's Motion to Vacate his Murder Conviction under CPL 440.10(1), p. 56-57. For these reasons, the court finds that the 2009 DNA test results could not have been discovered prior to the 2003 trial or the April 2004 re-trial even had the defendant exercised due diligence. The defendant's claim therefore rests on whether the test results would probably change the result if a new trial were granted. In turn, that claim rests on just how probative the newly discovered DNA test results are in this case.

No one disputes the potential power of DNA evidence to convict the guilty and exonerate the innocent. But, that power is found wanting in this matter for a number of reasons. To begin, the DNA testing here involved "touch DNA," which according to the Lab's forensic standards means STR DNA testing of trace amounts of DNA material below 100 picograms where 200 picograms is considered optimal, on a "high traffic" or commonly used item, a kitchen knife. See hearing Transcript, June 12, 2009, p. 527-30. When those trace amounts of DNA were deposited on that knife remains unknown and unknowable. Likewise, how those trace amounts of DNA were deposited on the knife remains unknown and unknowable. Veritably, the forensic scientists cannot even determine the nature, e.g., skin cells, sweat cells, of the invisible biological matter on the knife from which the DNA was extracted. More significantly, given the trace amounts of DNA material recovered, the conclusions that can be drawn from the test results are constrained. For the most part, the scientists were only able to develop partial DNA profiles and mixture profiles dominated. In short, the DNA profiles of as many as four different individuals were recovered from the knife. Whether any are of the "real killers" as the defendant urges or are simply from incidental users of that kitchen knife as the People maintain cannot be scientifically determined.

In sum, the DNA test results have a limited forensic value in this case standing alone. When coupled with the fact that the jury was well aware not only that there was absolutely no forensic evidence linking the defendant to the crimes, but that there was forensic evidence that others were indeed present,—an unidentified latent fingerprint was on the doorjamb leading to the bathroom where Betty Ramcharan's body was found; three cigarette butts in the basement of the Harris home disclosed unidentified full STR DNA profiles; and latex gloves in the upstairs hamper disclosed an unidentified partial STR DNA profile— its diminished significance is apparent. Moreover, when the evidence of the defendant's guilt is considered, the significance of the new DNA test results pales even further.

The primary evidence the People proffered in support of the defendant's guilt [*14]included his confession as well as admissions the defendant made to Cherilyn Mayhew and his motive. It is true that the defendant contested, and is still contesting, the voluntariness and truthfulness of his confession. Nevertheless, the jury undoubtedly credited it and a review of the contents of that videotaped confession made over five years after the crimes occurred, discloses telltale signs of its general veracity. For example, and potent for its contents and the fact that the defendant initiated the subject, at almost the end of his interview with the police, see transcript of defendant's confession, p. 71-2, the defendant says, "Can I ask you a question?" to which one of the officers replies, "uh huh." The defendant then asks "Will you be honest with me? Did you all know I had something to do with it?" Following the same officer's "Huh," the defendant again asks "Did you all know I had something to do with it?" When the officer ultimately says "Yeah," the defendant queries, "Then why did it take you all so long to come get me?"

In addition, the defendant's admissions to Cherilyn Mayhew also provided powerful evidence of the defendant's guilt. In 1997, after someone inadvertently bumped into the defendant, he remarked to Mayhew that "This guy don't know who [he] messing with. You know I will kill him because I did it before and I got away with it." See Trial Transcript, p. 1650. Then, in November of 2000, the defendant told Mayhew about how he had gotten away with killing the "old man" and "the lady" and stated that he had "beat the old man" and that " the lady was screaming and . . . he stabbed them." See id. at 1654. The defendant also indicated that there was a dog in the house at the time, see id., and of course, Archie Harris' dog had been found dead on November 21, 1996.

Significant as well is the proof regarding the defendant's motive for the killings: to avenge Archie Harris' alleged sexual assault against the defendant's mother, which reportedly occurred just months before the murders. Cherilyn Mayhew testified that in November of 2000, the defendant told her that "the man raped his mother and that nobody is going to do anything to his mother." See id. That motive was also revealed to the police during the defendant's confession. See transcript of defendant's confession, p. 5, 6, 28, 54. It too provides compelling evidence of the defendant's guilt.

Finally, it should be further noted that, to the extent the defendant argues that the alibi evidence is newly discovered within the meaning of Criminal Procedure Law § 440.10(1)(g), and interweaves it into a secondary basis to set aside the judgment, the court finds otherwise. To be sure, the alibi witnesses were known to the defense prior to the defendant's first trial and with minimal effort on his part, all of the specifics of their testimony could have been discovered. Indeed, that is an essential element underlying this court's conclusion that the defendant was deprived of his Federal and State Constitutional right to effective assistance of counsel. See discussion supra.

Under these circumstances, it thus cannot be said that the newly discovered DNA test results "[a]re of such character as to create a probability that had such evidence been received at trial, the verdict would have been more favorable to the defendant," see § [*15]440.10(1)(g), and the defendant's motion to vacate the judgment on this ground must be denied.

Actual Innocence

Pursuant to Criminal Procedure Law § 440.10(1)(h), the defendant also urges this court to vacate the judgment and dismiss the indictment on the ground that the alibi evidence and the newly discovered DNA evidence, either alone or taken together, establishes that he is actually innocent of the crimes of which he was convicted. The People counter that a free-standing claim of actual innocence is not cognizable under New York law and in any event, the defendant has failed to establish his actual innocence.

To date, there is no appellate authority expressly holding that a free-standing claim of actual innocence can be raised under § 440.10(1)(h). However, virtually all of the trial courts to explicitly address the issue have concluded that such a claim may be raised. See, e.g., People v Cole, 1 Misc 3d 531 (Sup Ct. Kings Co 2003); People v Wheeler-Whichard, 25 Misc 3d 690 (Sup Ct. Kings Co 2009); People v Bermudez, Indictment Number 8759/91, Supreme Court, New York County, August 5, 2009, post hearing decision, 25 Misc 3d 1226(A). A number of other courts, like this one, have assumed, without deciding, that such a claim is cognizable, but conclude that the defendant did not establish that he is indeed actually innocent. See People v Bozella, 25 Misc 3d 1215(A)(County Ct. Dutchess Co. 2009); see also People v Bryant, 25 Misc 3d 1206(A)(Sup Ct. Bronx Co. 2009); People v Bellamy, 20 Misc 3d 1131(A)(Sup Ct. Queens Co. 2008). The Tankleff court also found that the nisi prius court properly denied the defendant's motion to vacate the judgment on the ground of actual innocence, but did not decide whether "[N]ew York recognizes a free-standing claim of actual innocence that is cognizable by, or which may be addressed within the parameters of, CPL 440.10(1)(h)." People v Tankleff, 49 AD3d 160, 182 (2nd Dept 2007).

Nevertheless where recognized, a defendant must, in order to establish actual innocence, demonstrate by clear and convincing evidence that he is in fact actually innocent of the crimes of which he was convicted. See, e.g., Cole, 1 Misc 3d at 543; Bermudez, 25 Misc 3d 1226(A). In other words, no reasonable juror could convict the defendant of the crime for which he was found guilty. Cole, 1 Misc 3d at 543. Under this standard, the defendant has not met his burden.

Although as noted earlier, see ineffective assistance of counsel discussion supra., the court has found the alibi witnesses credible, such a finding does not end the inquiry. For while each witness testified in ernest, the accuracy and/or import of that testimony was not above reproach. Capt. Sharp had the incidents placing the defendant in North Carolina occurring, not on or around November 19 - 21, 1996, but near Thanksgiving of the following week and Remona McIver can only attest to the defendant's presence in [*16]Goldsboro, North Carolina on November 21, 1996. While Cindy Artis swears she saw the defendant in North Carolina daily for the month of November 1996, because she and the defendant were dating then, she cannot recall the specific dates on which any event occurred. Moreover, she stated that she stopped dating the defendant after she and the defendant's mother quarreled over the telephone and the defendant's mother sought law enforcement intervention. Thus, by her own accord, she would not have seen the defendant daily for the entire month of November 1996. In the same vein, Donald Evans' testimony was not entirely consistent. He admittedly advised the defendant's trial counsel in 2003 that he picked up the defendant's mother at the bus station in Goldsboro on November 13, 1996, yet he was in Myrtle Beach that day and could not have done so. His concomitant statement to counsel that he saw the defendant around Goldsboro every day in November of 1996 was also belied by Evans' admitted travels at that time. Further, although Mr. Evans' avers that the only time he could have moved some lawn furniture with the defendant in North Carolina was on November 19, 1996, that date was reconstructed from Evans' calendar and his practice of recording events was not always consistent. Moreover, Mr. Evans' initially told the defendant's trial attorney that he purchased the furniture from the defendant's mother on November 1, 1996, which would have meant that he moved that furniture with the defendant on November 5, 1996. Mr. Evans' calendar states "Wilson," a town only 30 minutes from Goldsboro for November 5 and 6, 1996. While such evidence may provide a reasonable doubt as to the defendant's guilt and undoubtedly should have been presented to the finder of fact at a trial, it does not clearly and convincingly establish to this court the defendant's actual innocence, particularly when examined in light of the People's evidence of his guilt.

As to the new DNA test results, the court has noted above their limited value under the facts and circumstances of this case, see newly discovered evidence discussion, supra. For those reasons, the court finds that it too does not meet the clear and convincing standard that is required to establish actual innocence, a finding that is not altered regardless of whether the evidence is considered alone or in conjunction with the alibi evidence.

Thus, the defendant's motion to vacate the judgment pursuant Criminal Procedure Law § 440.10(1)(h), on the ground of actual innocence is, assuming the cognizability of such a claim, denied in full.

Conclusion

Accordingly, for all of the above-stated reasons, the defendant's motion to vacate the judgment is granted to the extent indicated and a new trial is hereby ordered.

The foregoing shall constitute the decision and order of the court.

Enter.

Dated: December 31, 2009

White Plains, NY [*17]

Jeffrey A. Cohen, J.

County Court Judge