In motion papers dated July 26, 2001, defendant moved pro se pursuant to CPL 440.10 to vacate his judgment of conviction.

In a decision and order dated November 14, 2001, defendant's motion to vacate his judgment of conviction was denied by the Honorable Joseph Fisch. Defendant did not appeal that decision.

On July 1, 2014, defendant by counsel filed the instant application pursuant to CPL 440.10 to vacate his judgment of conviction.

On October 22, 2014, the People filed their Affirmation in Opposition.

On November 24, 2014, defendant by counsel filed a Reply Memorandum.

In defendant's moving papers and in his Reply Memorandum, defendant requested oral argument on the issue of whether or not a hearing should be held on his claim of actual innocence. The People opposed that request.

Defendant's request for oral argument was granted by the Court. On December 17, 2014, the Court with defendant present, heard oral argument from both sides solely on the issue of whether or not a hearing should be held on defendant's claim of actual innocence. The case was adjourned for decision on the issue of whether to grant a hearing.

In an interim decision and order dated January 20, 2015, defendant's request for a hearing was denied. The Court indicated a full decision on defendant's CPL 440.10 motion and on denial of defendant's request for a hearing would follow. This is that decision.^[FN1]

Now for the first time, nearly 20 years after his conviction, defendant moves pursuant to CPL 440.10 to vacate his judgment of conviction on several grounds, the crux of which is his claim of actual innocence. Defendant's claim of actual innocence is two-fold. First, defendant contends his actual innocence claim is supported by the fact that he is of Puerto Rican heritage and his asserted fact that the person who committed the crime was described as a Dominican male. Secondly, defendant contends two alibi witnesses who did not testify at trial can attest that they were with him elsewhere at the time the crime was committed and that that also establishes his innocence. Defendant contends the identification of defendant by the deceased's wife was weak and the identification by a second eyewitness was coerced and has been recanted.

To substantiate his contentions defendant proffers an affidavit from one of the two identifying eyewitnesses who testified at trial, Harry Ramos, who partially recants his trial testimony and also presents affidavits from two other persons, Amancio Delgado and Danny Hernandez, who establish his alibi. Together, defendant contends this evidence, which was not heard by the jury, establishes that he is actually innocent of the crime for which he was convicted. He says was misidentified and provides additional support for that notion.

Defendant's first contention is that he is innocent because he is Puerto Rican and the killer was Dominican. Defendant makes several arguments to support this contention and persuade the Court of his innocence. Defendant argues that his conviction was based upon the weak identification of two stranger eyewitnesses. Defendant contends that at trial, the two eyewitnesses, who were both Puerto Rican and spoke Spanish, described the killer as a Dominican male in his 20s who used a Dominican profanity and spoke with a Dominican accent. Defendant asserts that inasmuch as he was only 17 years old at that time, is Puerto Rican, has a "heavy Puerto Rican accent," does not speak with a Dominican accent or use Dominican profanities, that he is innocent.

To buttress his claim he includes a report from Dr. Cecelia Cutler, a Sociolinguist, which [*2]is offered among other grounds to validate the accuracy of audio cures and identification.

To further support this contention, defendant relies on the affidavit of Harry Ramos, one of the two eyewitnesses who testified against defendant at trial in 1994. Ramos states that nearly two decades after the trial, defendant's sister was residing as a tenant in Ramos' building. Defendant's sister was speaking with Ramos' wife about the murder that took place on Jerome Avenue and she told Ramos' wife that her brother is Puerto Rican and he is the one incarcerated for the murder. Ramos' wife then relayed this information to her husband Harry Ramos. Hearing that the defendant is Puerto Rican made Ramos certain, he swears, that he identified an innocent man. In essence, in the affidavit defendant contends that Harry Ramos recants his trial testimony, specifically his identification of the defendant as the shooter. Harry Ramos states in the affidavit that his trial identification of the defendant is wrong because the defendant, who he was told by the police at the time of trial was Dominican, is actually Puerto Rican.

Defendant argues that there is additional evidence which substantiates his claim of actual innocence based upon the killer being Dominican. Defendant directs the Court's attention to the Wanted Poster prepared in connection with this homicide investigation. Defendant argues that the Wanted Poster corroborates that the perpetrator the police were searching for was a Dominican male.

Defendant's second claim of actual innocence is based upon his contention that he was elsewhere at the time the crime was committed and he has witnesses to support that contention. Defendant relies on the affidavits of the two witnesses, Delgado and Hernandez, who did not testify at trial, although each was known to the defense. Defendant contends these witnesses establish his innocence because they provide him with a credible alibi.

Additionally, defendant contends that his judgment of conviction should be vacated based upon the existence of newly discovered evidence, i.e., the affidavits of Harry Ramos and the two alibi witnesses, Danny Hernandez and Amancio Delgado. Defendant also moves to vacate his judgment of conviction on the grounds that the prosecution failed to disclose the statements of eyewitnesses that he did not recognize defendant as the shooter in violation of Brady v. Maryland, 373 US 83 (1963).

Pursuant to Criminal Procedure Law 440.30(4)(d), a Court may deny a motion to vacate a judgment of conviction without conducting a hearing when "the moving papers do not allege any ground constituting a legal basis for the motion."

On January 15, 2014, the Appellate Division, Second Department held for the first time that a defendant seeking to vacate a judgment of conviction may be entitled to relief on a free-standing claim of actual innocence. see People v. Hamilton, 115 AD3d 12 (2nd Dept. 2014) Actual innocence means factual innocence not merely legal insufficiency of evidence. Hamilton at 23 citing Bousley v. United States, 523 US 614, 623-624 (1998) The claim of actual innocence must be based upon reliable evidence which was not [*3]presented at defendant's trial. Hamilton at 23 citing Schlup v. Delo, 513 US 298, 324 (1995)

To prevail on a claim of this nature, the burden is on defendant to establish his claim of actual innocence by clear and convincing evidence. see Ibid. at 27; People v. Irizarry, 991 NYS2d 748 (Westchester Cty. Ct. 2014) To be sufficient, clear and convincing evidence must establish that the claim asserted is "highly probable." see Irizarry at 761, quoting Home Ins. Co. of Ind.v. Karantonis, 156 AD2d 844, 550 NYS2d 77 (3rd Dept. 1989); Ausch v. St. Paul Fire & Mar. Ins. Co. 125 AD2d 43, 511 NYS2d 919 (2nd Dept. 1987) "Mere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence and in fact is presumed to be guilty." Hamilton at 27 citing Schlup v. Delo, 513 US at 326 n. 42; Herrera v. Collins, 506 US 390, 398 (1993)

To obtain a hearing on a claim of actual innocence the defendant has the burden to make a prima facie showing of actual innocence. "A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the court." Hamilton at 27 The party seeking a hearing will not satisfy its burden by simply asserting actual innocence or offering some claim in support thereof. To prevail, a defendant must by factual presentation, demonstrate with clear and convincing evidence that what is presented establishes defendant's actual innocence.

In the instant matter, defendant's claim of actual innocence rests upon his contention that the shooter was described as a Dominican male and he is not Dominican but rather Puerto Rican. As noted supra, a claim of actual innocence must be based upon reliable evidence that was not presented at trial.

In his papers defendant relies on several pieces of evidence to support his claim of actual innocence inasmuch as he is Puerto Rican and the actual killer is a Dominican male. The Court has reviewed the trial transcript, examining each piece of evidence defendant has relied upon. The trial transcript is replete with the testimony of the two eyewitnesses describing the shooter as a Dominican male. The jury, as finders of the facts, heard this description evidence, observed the defendant throughout the trial and had the opportunity to evaluate this evidence. The jury returned a guilty verdict after having determined what if any weight to give this description evidence.

The remainder of defendant's factual assertions, as discussed infra, are over-broad or inaccurate. These assertions lack sufficient merit to warrant a hearing and do not provide clear and convincing evidence upon which to vacate defendant's conviction.

To begin, defendant claims that both eyewitnesses, Carmen Velazquez and Harry Ramos, testified that the shooter spoke with a Dominican accent. That claim is belied by a reading of the trial record. Ms. Velazquez testified that the shooter was standing behind the "short guy" who initially approached her husband. She was then asked the following [*4]questions:^[FN2] (210: 11-15)

Similarly, at trial Harry Ramos was questioned about the conversation between the shooter and the victim as follows: (264: 15-23)

Additionally, defendant claims that the police were looking for a Dominican male in connection with this homicide investigation and he relies on the text of the Wanted Poster to support this contention. As to the text defendant again is inaccurate. The Court has reviewed the Wanted Poster (Defense Exhibit 4) and looking at the Wanted Poster the Court saw that on the poster there is no reference whatsoever to a Dominican male. Rather, according to the Wanted Poster the person wanted in connection with the homicide was a male Hispanic.

The strength of defendant's claim of innocence is severely undermined by these factually inaccurate assertions upon which he wishes the Court to rely. For the Court to do so would necessitate the Court ignoring and casting aside the cold trial record. The cumulative misstatements cannot be relied upon to satisfy defendant's burden to obtain a hearing or to prevail on the motion. The remainder of defendant's claim is hinged upon the affidavit of Harry Ramos, which is a partial recantation of his trial testimony.

The recantation of a trial witness is often looked upon with skepticism. see People v. Shilitano, 218 NY 161, 170 (1916) In Shilitano, the Court of Appeals emphasized, "[t]here is no form of proof so unreliable as recanting testimony." Id. at 170. see also Id. at 170 (recanting testimony is unreliable as it has an "untrustworthy character."); People v. Smalls, 70 AD3d 1328, 1330 (4th Dept. 2010) ("It is well established that recantation evidence is inherently unreliable"); People v. Lawrence, 247 AD2d 635 (2nd Dept. 1988) ("It is well settled that there is no form of proof so unreliable as recantation testimony.")

Now more than 20 years after the crime, Harry Ramos has signed an affidavit ^[FN3] in which he essentially states that the only reason that he identified the defendant was because he was assured by the police that defendant was Dominican. He now claims that the defendant is innocent and his identification of defendant must be wrong because defendant is Puerto Rican. The affidavit of Harry Ramos has been proffered as evidence of actual innocence to repudiate his prior positive identification of the defendant as the shooter. In contrast, in Hamilton, even before defendant was sentenced a CPL 330.30 motion was filed on his behalf citing the recantation of the single eyewitness who identified him as well as a newly discovered defense witness. Motion after motion was filed over succeeding years by defendant seeking to overturn the verdict against him.

The Court has read the trial testimony in the case including that of Harry Ramos and has analyzed the current affidavit in light of that testimony. The credibility of the claims advanced in the Harry Ramos affidavit are belied by the trial record.

First, at trial Detective Kenneth Thompson testified that the day after the shooting he interviewed Harry Ramos. During the course of the interview, Detective Thompson did not ask Harry Ramos for a description of the shooter, "because he (Harry Ramos) knew the subject." (290: 22) According to the People, Detective Thompson also testified at the pre-trial hearing that Mr. Ramos supplied the shooter's nickname and then identified defendant's photograph from hundreds of photos. Harry Ramos was the individual responsible for providing he police with the initial lead which began the search for the defendant. Further, the photo selected by Harry Ramos was placed in a photo array which was displayed to Carmen Velazquez and she positively identified defendant's photo in that array.

On cross-examination, Harry Ramos corroborated Detective Thompson when he was asked the following questions: (263: 19-25), (264: 1-5)

In his affidavit, Mr. Ramos blames the police and insists that at the time that he was present to make a lineup identification he kept telling the detective that the person was not there and the detective kept telling him ( Mr. Ramos) that he was there. The affidavit states that the detective told him the wife of the victim had said the person was there but he (Mr.Ramos) kept shaking his head and saying no. Mr. Ramos states that after Mr. Ramos himself was arrested and incarcerated, "The black detective brought me to court to testified [sic] and the [sic] placed me in a small room and showed me a picture allegedly of the person who killed Michael when they showed me the picture I asked if he was Dominican o [sic] Boricua (Puerto Rican) and he told me that he was Dominican I asked him because I wanted to make sure that he was not Puerto Rican because I knew that the person who killed him was Dominican. And when he showed me the picture I was still uncertain that its [sic] why I asked the detective if he was Dominican o [sic] or Puerto Rican when he said to me that he was Dominican I thought that they had him and I thought that he was the one who killed Michael."

Mr. Ramos states that he knows he identified an innocent man because he recently learned that the person he identified (the defendant) is actually Puerto Rican. Mr. Ramos states, "When my wife called me and told me that everything changed because I knew that the person that killed was Dominican not Puerto Rican. I want to say that the person that is incarcerated is innocent." (Defendant's Exhibit 11, Ramos affidavit)

Additionally, in his affidavit Mr. Ramos states that he also knows his identification of the defendant is wrong because the shooter used a Dominican profanity before he shot the victim. Mr. Ramos testified that prior to the shooting the shooter called the victim a

In his affidavit, Mr. Ramos attempts to paint a picture of himself as a witness who was misled by the police and forced to identify the defendant. However, the credibility [*5]and trustworthiness of that portion of the affidavit, is further undermined by the following testimony. On direct examination Harry Ramos testified that he did not see "Monaguillo" in the courtroom (254: 21-23), and he did not remember what the shooter looked like. (258: 24-25, 259: 2-5). When Harry Ramos was asked if anyone in the courtroom looked like the shooter, he replied, "Him," and pointed to the defendant. (259: 6-15)

On cross-examination, Harry Ramos divulged that he knew the defendant's nickname because he knew the man.(263: 22-25, 264: 1-4). Finally on re-direct, Harry Ramos made an in-court identification of the defendant. The record reflects the following:(265: 6-18)

This record does not support the conclusion suggested by Harry Ramos in his affidavit, that he was a coerced witness. This record does not portray a witness who is giving a forced, rehearsed or scripted response when asked to make an in-court identification. To the contrary, the conclusion to be drawn from what transpired is that Harry Ramos was a hesitant, reluctant witness who was fearful to make an in-court identification and only did so when reminded that nobody was going to hurt him and that he swore to tell the truth.

It is also significant to note that the Court denied defense counsel's mistrial motion based upon the argument that the prosecutor's questions gave the impression that Harry Ramos had been threatened. In denying the motion, the court noted for the record that when Harry Ramos was asked to look around the courtroom to see if he could recognize anyone, the defendant was looking at the witness and shaking his head no. (319: 21-25, 320: 2-9).

The arguments made by the defendant, based upon the inferences he has drawn from what he says is the evidence are unpersuasive and do not provide clear and convincing evidence to establish his actual innocence. The Court does not accept defendant's invalidation of the trial identification by both eyewitnesses, simply because they described the shooter as Dominican and then identify the defendant who reports himself to be Puerto Rican. Rather, their description is a subjective opinion of the [*6]defendant's ethnicity, rather than clear and convincing evidence of innocence. It was for the jury, as fact finders, to determine if the characterization of the eyewitnesses was reasonable. Additionally, this Court rejects the specious proposition that the two eyewitnesses, both of whom were Puerto Rican, would never erroneously identify a fellow Puerto Rican as Dominican.

Further, defendant's argument that he is actually innocent because he is Puerto Rican and would never utter a Dominican profanity, is a far-fetched, incredible and implausible conclusion that this Court rejects.

Defendant contends the impetus for the recantation of Harry Ramos was the proffered chance meeting between his wife and the defendant's sister. The details supplied as to how this chance meeting and conversation led to and prompted the Ramos recantation are implausible on their face.

Even if the Court were to assume arguendo, that the affidavit of Harry Ramos is credible and reliable, it is not clear and convincing evidence which makes it highly probable that defendant is innocent. The affidavit merely casts doubt as to the defendant's guilt as it is at most, evidence in direct conflict the uncontroverted positive identification by Carmen Velazquez which remains. Doubt as to a defendant's guilt cannot be used as a basis to establish factual innocence.

Defendant's second basis for his claim of actual innocence is premised upon the existence of two alibi witnesses who did not testify at trial: Amancio Delgado and Danny Hernandez, two friends are the friends of defendant who defendant claims he was with at the time the crime was committed. These two alibi witnesses proffered by the defendant in the instant motion were known to the defense at the time of trial; however, they did not testify. The Court, in evaluating a claim of actual innocence is permitted to consider all evidence currently available. As such, this Court will now evaluate defendant's alibi to determine if it constitutes credible and reliable evidence which establishes defendant's innocence.

Both Mr. Delgado and Mr. Hernandez have provided affidavits which defendant has annexed as Exhibits to the instant motion. According to Danny Hernandez, June 25, 1992, was his 18th birthday and he spent the entire day from approximately 11 a.m. until 10 p.m. "hanging out" with the defendant. Similarly, Mr. Delgado recalls hanging out with the defendant on Hernandez's 18th birthday in the summer of 1992. Mr. Delgado does not give a specific date for the events that he attests to in his affidavit. Mr. Delgado states that he met up with the defendant at approximately 12 noon and they hung out on the street until 10 p.m. Mr. Delgado indicated that the group of friends consisted of five males. Both Hernandez and Delgado, place themselves and the defendant on Mt. Eden and Townsend Avenue, which is within one mile of the crime scene ^[FN5] .

In these affidavits proffered, both Mr. Delgado and Mr. Hernandez even in their vague accounts of hanging out with the defendant from early in the day, beginning around 11 a.m., until approximately 10 p.m. strain credulity now 20 years later. Neither Mr. Delgado or Mr. Hernandez provides any specific evidence of the activities of their group on that date which would support their remembering the day. Only Mr. Hernandez is able to recall the specific date of June 25, 1992, and that is because it was his birthday.

In contrast to defendant's two alibi witnesses, the defendant himself was questioned by the police only months after the incident. The defendant's video statement was presented to this Court for consideration in the instant application and viewed by the Court. On the video statement, when the defendant was questioned he was unable to recall where he was, who he was with and what he was doing on June 25, 1992. And yet, Mr. Delgado said he made it known that defendant was with him when he learned defendant was arrested and would have testified.

Defendant's purported alibi has been offered by him in the instant application to establish his innocence. However, this vague recounting of the day by his two friends does not exclude the defendant from the crime but rather potentially corroborates the People's witnesses, thereby, arguably strengthening the case against the defendant and certainly does not establish his innocence.

For instance, the defendant's alibi witnesses place the defendant within proximity to the location of the crime, at or about the time the crime was committed. The alibi witnesses fail to establish or even make it plausible that the defendant and his group of friends remained stationary on the street corner and offer nothing to eliminate the group of males having migrated the short distance to the scene of the homicide.

Additionally, both Mr. Delgado and Mr. Hernandez, place the defendant in a group of male Hispanics and at least one of the males in the group is Dominican. This evidence potentially corroborates the testimony of Carmen Velazquez and Harry Ramos, who testified that the shooter was with a group of Dominicans. In fact, according to the affidavit of Mr. Delgado, there were five males in the group, a statement which is consistent with the trial testimony of Carmen Velazquez.

Further, Mr. Delgado in his affidavit attests that he is Dominican and is familiar with the Dominican slang word "managuevo." Mr. Delgado claims that this slang term "It's not a word that Tito (defendant) would be expected to say, and I've never heard him say it." This claim by Mr. Delgado is far from clear and convincing evidence making it highly probable that he is innocent. However, it tellingly establishes defendant's association with Dominicans, thereby establishing a basis of knowledge and familiarity with Dominicans and their use of Dominican profanities.

To establish his actual innocence, defendant must provide clear and convincing evidence, making it "highly probable" that he is innocent. The alibi witnesses proffered by defendant are defendant's friends and as such have an interest in defendant's case. The Court considers that in evaluating their credibility. Defendant's two alibi witnesses merely [*7]offer an unpersuasive vague accounting of events that transpired over 20 years ago, without any factual specificity to establish defendant's innocence.

These proffered alibi witnesses were available to defense at the time of defendant's trial; however, they did not testify. Danny Hernandez says in his affidavit that he offered to testify to the alibi. Witness Delgado in fact says he met actually with defendant's counsel and yet was not called. Defendant does not establish in the instant application why evidence of his alibi was never presented to the jury. Defense counsel spoke to one of the witnesses and the other says that he offered to testify. Yet neither was called to testify at defendant's trial. From this it can be inferred at least that as to the one witness who was certainly spoken to by counsel, counsel decided for strategic reasons not to call the alibi witness. From this it can be concluded counsel believed the alibi testimony of the witness would not have helped defendant. Because that was an unsuccessful strategy does not mean that defendant is now permitted to get an opportunity to try out the alibi at a hearing or trial.

Defendant's claim of actual innocence relies heavily on the Hamilton decision, in which the Court ordered a hearing on defendant's claim of actual innocence in part based upon the presentation of additional evidence of defendant's alibi which existed at the time of trial, although was not heard by the trial jury.^[FN6] The Hamilton alibi evidence is distinguishable from the alibi evidence in the instant matter. In Hamilton, at the time of trial, defendant had a potential alibi defense, established by two known witnesses. Hamilton was unable to proceed at trial with this alibi defense because one witness was ill and the other witness was too afraid to testify. In his motion to vacate his judgment of conviction, Hamilton raised a claim of actual innocence and offered two additional alibi witnesses. The Hamilton alibi was credible in that it was related to specific, detailed, verifiable events and spanned a period of time and was plausible. It put Mr. Hamilton in a different state - Connecticut - at the time of the crime. Further, one of the two new alibi witness was a New Haven police officer. These new witnesses corroborated the earlier alibi witnesses who did exist and were known at the time of trial but were not called at trial because of illness and fear. Hamilton claimed these witnesses constituted newly discovered evidence. The Court found that the two additional witnesses did not constitute newly discovered evidence because they were discoverable at the time of trial. However, upon assertion of a claim of actual innocence, new evidence may be considered even if it does not satisfy the traditional "Salemi" factors for newly discovered evidence. Hamilton at 26 citing People v. Bermudez, 25 Misc 3d 1226(A), 2009 NY Slip Op. 52302(U), *23 (Sup Ct. NY Cty. 2009)

By contrast, defendant in the instant matter proffers the same two witnesses that counsel did not present at trial whose account as stated infra, supra, is vague, unverifiable [*8]and implausible. As such, the nature of the evidence of the alibi witnesses proffered by defendant do not posses the same persuasive character and attributes as the Hamilton alibi evidence.

Defendant's request for a hearing on his claim of actual innocence has by oral decision been denied. The People concede the fact that the eyewitnesses to the crime describe the shooter as a male Dominican and then identify the defendant who now asserts he is Puerto Rican. The People argue an evidentiary hearing is not necessary because there is no factual dispute to be resolved. They contend that the discrepancy between the ethnicity in the description provided to the police in comparison to defendant's self stated ethnicity is not evidence of defendant's actual innocence. The Court agrees. Further, as discussed supra, defendant's evidence of alibi is vague and lacks credibility.

A hearing is warranted on a claim of actual innocence upon the presentation of credible evidence which has not been presented at trial and there is "a sufficient showing of possible merit to warrant a fuller exploration." Hamilton at 28 (internal citations omitted) Upon review of the arguments by the parties, this Court finds that defendant's application for a hearing thereon falls short of the requisite standard as he has not shown the existence of such facts that warrant a hearing.

Ultimately, the defendant is unable to prevail on the claim of actual innocence in the instant application because he has failed to provide clear and convincing to sustain his burden. Accordingly, defendant's motion to vacate his judgment of conviction on the grounds that he is actually innocent is denied.

In addition to claiming that the proffered affidavits of Harry Ramos and the two alibi witnesses, Mr. Delgado and Mr. Hernandez, establish his actual innocence, defendant contends that the affidavits of these witnesses constitute newly discovered evidence and as such warrant vacating his judgment of conviction.

Pursuant to CPL 440.10(1)(g), a motion to vacate a judgment of conviction on the grounds of newly discovered evidence may be denied when

Newly discovered evidence must satisfy each of the following criteria in order to warrant a new trial: (1) it must be of such character as will probably change the result or [*9]verdict, if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and (6) it must not merely impeach or contradict the former evidence. see People v. Salemi, 309 NY 209, 216 (1955), cert. denied, Salemi v. State of New York, 350 US 950 (1956)

The Court finds that the affidavit of Harry Ramos does not constitute newly discovered evidence. In essence, the affidavit of Harry Ramos stands for the proposition that if Harry Ramos were aware that defendant was Puerto Rican and not Dominican he would not have identified the defendant because he knew the shooter was Dominican.

At trial, Mr. Ramos testified that he was positive the shooter was Dominican. Presumably, the defendant was aware at the time of trial that he himself was not Dominican but rather Puerto Rican. Therefore, it stands to reason that Mr. Ramos could have been asked if his identification would have been any different if he knew that the defendant was Puerto Rican. However, the question was never posed. Further, defendant presented no evidence of his ethnicity or questioned Mr. Ramos as to the shooter's accent. Accordingly, the arguments raised and advanced by the defendant based upon the affidavit of Harry Ramos, could have been extensively explored at trial.

Additionally, as discussed supra, the affidavit of Harry Ramos is untrustworthy and inherently unreliable. It is not of such a nature as to be likely to have changed the verdict had it been received at the time of trial. The Harry Ramos affidavit presents a conflicting view of the identification testimony; there is nothing to establish that a jury would be more likely to credit his testimony and reject the testimony of Carmen Velazquez, the other identifying eyewitness.

Neither the affidavits of Mr. Hernandez nor Mr. Delgado, satisfies the second criterion above. Although these witnesses did not testify at trial, their existence was known at the time of trial. Mr. Delgado, attests to meeting with defendant's trial attorney and about potentially testifying as an alibi witness. Mr. Delgado states he was willing to testify but was never called to do so on defendant's behalf. Mr. Hernandez states in his affidavit that he offered to testify on defendant's behalf after he discovered that defendant was arrested for something that happened on his birthday. Clearly, these affidavits directly defeat any possible claim of newly discovered evidence.

Furthermore, based upon the content of each affidavit submitted, the unreliable recantation and the vague alibi statements, it is unlikely that had this evidence been heard by the jury that the resulting verdict would have been any different.

The affidavits of Harry Ramos, Amancio Delgado, and Danny Hernandez have

Defendant also moves to vacate his judgment of conviction pursuant to CPL [*10]440.10 (1)(f) and 440. 10 (1)(h), on the grounds that the People failed to disclose several statements made by Harry Ramos that he did not recognize the defendant and that he did not believe that he was the shooter, in violation of their obligation pursuant to Brady v. Maryland, 373 US 83 (1963).

Pursuant to Brady v. Maryland, 373 US 83 (1963), the People are obligated to turn over exculpatory evidence within their possession. Evidence is considered exculpatory if it is favorable to defense, material as to guilt or material to the credibility of a witness whose testimony will be relied upon to establish guilt. see also, Giglio v. United States, 405 US 150 (1972); People v. Baxley, 84 NY2d 208 (1994); People v. Novoa, 70 NY2d 490 (1987); People v. Cwikla, 46 NY2d 434 (1979)

Specifically, defendant alleges that the People did not disclose several statements made by Harry Ramos regarding his inability to recognize the shooter and make an identification. The People respond that they promptly disclosed that Mr. Ramos failed to identify the defendant in the lineup and in fact had identified another individual in that lineup. The People contend that this issue was fully examined at the pre-trial hearing. Additionally, at trial Detective Thompson testified at length regarding the refusal of Mr. Ramos to make an identification. Detective Thompson was also questioned regarding his police paperwork as it pertained to Mr. Ramos and his willingness to make an identification. The issue was further explored at trial when Mr. Ramos testified that he did not identify anyone at the lineup and then he testified that he selected number 4. On direct examination Mr. Ramos testified that he did not see the shooter in the courtroom and indicated only initially that defendant looked like the shooter.

Clearly, based upon the aforementioned, any issues surrounding the ability or inability of Mr. Ramos to make an identification of the defendant or another were disclosed to the defendant and fully explored during the defendant's pretrial hearing and jury trial. Additionally, the Court rejects defendant's claim that a statement allegedly made by a detective to Harry Ramos regarding the ethnicity of the lineup suspect constitutes Brady material, thereby requiring disclosure by the People.

Defendant has failed to establish the existence of a Brady violation. Accordingly, defendant's motion to vacate his judgment of conviction on the grounds of a Brady violation is denied.

In sum, based upon the aforementioned reasons, defendant's motion to vacate his judgment of conviction is denied in its entirety.

This constitutes the decision and order of the Court.

February 13, 2015

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