People v Bermudez (2009 NY Slip Op 52302(U))

People v Bermudez

2009 NY Slip Op 52302(U) [25 Misc 3d 1226(A)]

Decided on November 9, 2009

Supreme Court, New York County

Cataldo, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

By decision and order dated August 5, 2009, this Court ordered an evidentiary hearing on defendant's CPL 440.10 motion, pursuant to CPL 440.30(5). The hearing was granted on the following grounds:

1. Whether newly discovered evidence exists which would probably have resulted in a verdict more favorable to the defendant; CPL 440.10(1)(g);

2. Whether, prior to the imposition of sentence, material evidence adduced at a trial resulting in the judgement was false and was, prior to the entry of judgment, known or should have been known by the prosecutor to have been false; CPL 440.10(1)( c);

3. Whether unduly suggestive identification procedures violated defendant's rights under the New York and United States Constitutions; CPL 440.10(1)(h); and

4. Whether the defendant has demonstrated his actual innocence by clear and convincing evidence. CPL 440.10(1)(h); New York Constitution, Article 1, §6.

A CPL 440 hearing was held before me on September 1st, 2nd, 3rd, 4th, 8th, and 17th of 2009. The defense called eleven witnesses, including an expert in identification. The People called five witnesses. The parties introduced numerous exhibits into evidence. In addition, the parties stipulated into evidence the original trial transcript and federal habeas hearing transcript. Further, all pleadings and their annexed exhibits, including videotapes and audiotapes were stipulated into evidence, with the exception of exhibits relating to the People's investigation of the alibi of Luis Munoz which were entered into evidence over the People's objection as indicated in the hearing record. (CPL 440 Hg. Tr. of 9/17/09; at 102, line 25 to 103, line 4). The exhibits annexed to the parties pleadings include, inter alia, prior CPL 330.30 and CPL 440 submissions, prior court decisions, and numerous police reports and witness affidavits. Accordingly, all of these material have been evaluated in reaching my findings of facts and conclusions of law.

In analyzing the defendant's newly discovered evidence claim, I will first review the significance of the District Attorney's concession that Efraim Lopez, a prosecution witness, testified falsely during his trial testimony. This issue coincides with the defendant's second ground for relief, whether the prosecution knew, or should have known, that Mr. Lopez gave materially false testimony at trial.

I will also analyze the defendant's claim of newly discovered evidence based upon the habeas corpus testimony of the four identification witnesses in which they recanted their trial identifications of the defendant for the first time in an adversarial proceeding; as well as the testimony before me of three of those four eyewitnesses at the current CPL 440 hearing. This will be considered in conjunction with the Federal District court's finding that unduly suggestive identification procedures were involved in the pre-trial identifications made by these same four witnesses. This ground overlaps with the defendant's third request for relief, alleging unduly suggestive identification procedures violated his constitutional rights under CPL 440.10(1)(h).

When analyzing the final basis for relief, defendant's claim of actual innocence, all of the above grounds, as well as all of the credible evidence to date, will be considered.

The Crime

On August 4, 1991, at about 3:10 a.m. on a Sunday morning, Mr. Raymond Blount was shot to death as he left a club called the Marc Ballroom, also known as the Romper Room. The shooting occurred at University Place and 13th Street, in New York County. [*2]

Earlier in the evening, while inside the Marc Ballroom, Raymond Blount had been involved in a fight with a sixteen year old named Efraim Lopez. Mr. Lopez was known as "Pico" or "Shorty." On the morning of August 3, 1991, Mr. Lopez had been released on a five day furlough from a work release program after a car theft conviction. One of the conditions of his furlough was a 10 p.m. curfew. At the time of the shooting, Mr. Lopez was in violation of that curfew.

Sometime around midnight, Raymond Blount had punched Mr. Lopez in the face, giving him a black eye. About one half hour to 45 minutes later, Mr. Lopez approached a man standing by himself inside the club. Mr. Lopez told the man he had been assaulted. He pointed to Mr. Blount as the person who had punched him. Once outside the club, the man again asked Mr. Lopez to point out the person who had hit him. Mr. Lopez pointed to Mr. Blount, describing him as "the one with the brown hat." The man approached Raymond Blount and shot him. The question at trial was whether the defendant, Fernando Bermudez, was the shooter.

The Trial Testimony of Efraim Lopez - a.k.a. "Shorty"

Efraim Lopez was the central witness against the defendant at trial. He was the only witness who testified to a relationship with the shooter prior to the night of the murder. Mr. Lopez testified under a cooperation agreement which provided he would not be charged with any crime relating to the homicide. Mr. Lopez's understanding was that, as part of the agreement, he was required to come to court and testify at the defendant's trial. (Trial Tr. 694).

Mr. Lopez testified the defendant was a man known to him by the name of "Woolu." He testified Woolu shot Mr. Blount. He indicated he had known Woolu for two years at the time of the crime. Woolu regularly sold drugs, specifically crack rolled up in tobacco or marijuana cigarettes, in a park behind a public school on West 92nd Street in Manhattan. Mr. Lopez indicated he had been introduced to Woolu by a mutual friend named Wilfredo "Freddy" Maldonado. When he was taken into custody, Mr. Lopez told police he didn't know Freddy's last name, however, in December 1991, he admitted knowing Mr. Maldonado's true name and provided it to the prosecutor. Mr. Lopez maintained he didn't tell the police Mr. Maldonado's name earlier because he didn't want to testify against Woolu. (Trial Tr. 732). The People did not call Mr. Maldonado at trial.

Mr. Lopez testified at trial to having the most limited of relationships with Woolu. Mr. Lopez would only say: "What's up" when he saw Woolu. He never partied with Woolu and they did not have any conversations. (Trial Tr. 633, 640, 704, 705, 730).

Mr. Lopez's grandmother lived at 74 West 91st Street. He indicated that Woolu was always hanging around his grandmother's building. (Trial Tr. 1214). He recalled seeing Woolu in the park directly behind his grandmother's building about two or three times a week prior to his own incarceration. Mr. Lopez also knew Woolu from P.S. 84, a public school adjacent to the park behind his grandmother's building.

Mr. Lopez had seen Woolu in that same park around 6 p.m. on August 3, 1991, just a few hours before he went to the Marc Ballroom. Mr. Lopez went to the club with his friend Anthony Steward. Mr. Steward was not called by the prosecution at trial.

While he was on the dance floor with a girl named Moritza, Mr. Lopez noticed Mr. Blount pointing at him. He said to Mr. Blount "Do you know me?" In response, Mr. Blount punched Mr. Lopez. He and Mr. Blount were taken out of the club by the bouncers but were allowed to re-enter. When he returned to the club, Mr. Lopez testified he called his grandmother from a phone inside the club to let her know he had been in a fight. [*3]

About a half hour later, Mr. Lopez saw Woolu in the club for the first time. Woolu asked him what had happened and Mr. Lopez told him he'd been in a fight. Woolu asked him to point out the man who'd struck him. He pointed to Mr. Blount.

When he left the club, Mr. Lopez waited outside for about five minutes until Mr. Blount exited with a friend. Woolu asked him "which is the one?" and Mr. Lopez said: "the one with the brown hat." (Trial Tr. 735-736). Woolu approached a black Pathfinder and spoke to someone inside. The Pathfinder drove ahead and blocked the path of Raymond Blount and his friends. Mr. Lopez recalled seeing a Puerto Rican man with a cane standing near the Pathfinder. He hadn't seen him inside the club. At that time, Woolu jogged up to Mr. Blount, pulled a gun from behind his back, and shot Mr. Blount.

Mr. Lopez described Woolu as a man about 6' tall, wearing beige shorts, a white T-shirt with black designs on the front, and a large gold Gucci rope chain with a medallion. His hair was in the style of a fade, which is short on the sides and full on the top. He did not recall a mustache or any facial hair, although it is uncontested Mr. Bermudez had a mustache when arrested two days later.

On cross-examination, Mr. Lopez conceded that Woolu was more than an acquaintance, that he was well known to him and was in fact his friend. (Trial Tr. 1234).Mr. Lopez acknowledged telling the police what he believed they wanted to hear so he would be released. He admitted he didn't want to testify against Woolu. After both his first and second written statements, Mr. Lopez asked to leave. Both times Detective Daniel Massanova refused to release him. (Trial Tr. 1237). During his time in police custody, Mr. Lopez did not sleep. He was seated on a chair in an office the entire night. (Trial Tr. 1199).

The Pretrial Written and Videotaped Statements of Efraim Lopez

The first time the Mr. Lopez was questioned by police was on August 5, 1991, one day after the shooting, while in custody at the 6th Precinct. In the first of three written statements, Efraim Lopez did not admit to knowing the shooter. (Defendant's Exhibits to Memorandum of Law, Appendix A, Exh. 24). In his second written statement, he indicated he knew the shooter and his street name was Wool Lou. (Defendant's Appendix A, Exh. 25). In his third written statement, Mr. Lopez indicated he had been shown photographs and number "2" was the shooter. Mr. Lopez indicated the shooter was from his neighborhood and his street name was Wool Lou. He stated he had observed Wool Lou entering 74 West 92nd Street, the building his grandmother lived in. (Defendant's Appendix A, Exh. 26). Det. Daniel Massanova's interview notes indicate Mr. Lopez described the shooter as a Puerto Rican man. (Defendant's Appendix A, Exh. 20).

After more than a full day in police custody, Mr. Lopez gave a videotaped statement to Assistant District Attorney James Rodriguez and Det. Daniel Massanova. During his videotaped statement, Mr. Lopez, indicated the shooter's name was Lou. He stated Lou's street name was "Wool" Lou. When asked about the nickname "Most" (Mr. Bermudez's nickname), Mr. Lopez did not recognize it.

The Inconsistencies Between Mr. Lopez's Pre-trial Statements and His Trial Testimony

Prior to trial Mr. Lopez named the shooter as Lou, with a street name of "Wool" Lou. However, throughout the trial, neither the prosecutor nor Mr. Lopez ever referred to the shooter by the name Lou. He was only referred to as "Woolu." At trial, Mr. Lopez testified that his pretrial statements to the prosecutor in August and December of 1991 were identical to his trial testimony. "Woolu" was the shooter. (Trial Tr. 1276, lines 21-25). Additionally, the prosecutor elicited from [*4]Mr. Lopez that he had not made any false statements during his August 1991 videotape. (Trial Tr. 1277).

At trial, Mr. Lopez denied knowing the shooter's name. When asked what Woolu meant, Mr. Lopez testified it meant crack. When asked what the "lu" meant, he stated he didn't know what it meant, maybe it was a nickname. The prosecutor did not seek to correct this testimony by his witness.

Specifically, prior to trial in Efraim Lopez's videotaped statement, the following discussion as to the identity of the shooter took place: (Defendant's Appendix A, Lopez VT, p. 15); (Defendant's Exh. 5, videotape, August 6, 1991, 19:17 hours).

A:Yeah, becau — yeah, because crack, they call it wools. So that's what he was selling.

A:Wools. So that's why they named him "Wool" Lou. You understand. That's why —

However, at trial, on direct examination by ADA Rodriguez, Mr. Lopez testified he only knew the shooter by the name Woolu:

Q:After you were introduced by Freddy, you were introduced by the name of Woolu?

During cross-examination by Mr. Kenyon, Mr. Lopez remained steadfast in his

contention that Woolu was the only name he knew for the shooter. (Trial Tr. 703, lines 3-

12).

Q:When Mr. Maldonato introduced you, do you recall how he introduced you, what did he say?

Continued cross-examination of Mr. Lopez: (Trial Tr. 729, line 4, to Tr. 730, line 10):

Q:I would like for you to explain to us, please, what is his name Woolu, what does that mean to you?

A:It means wool is what crack is put into tobacco and rolled up. That is what wool is.

A:I don't know. That is what he was using. I don't know if that was his nickname or what. I don't know is wool his nickname.

Hence, there was a substantial change in Mr. Lopez's knowledge of the shooter's name between the time of his videotaped statement and his subsequent trial testimony. Initially the shooter had a name, Lou. His nickname was rationally explained. Lou sold "wools,", a form of crack, so they called him Wool Lou. However, at trial, the shooter became Woolu.

The full significance of this testimony was not appreciated by defense counsel until after the verdict. Mr. Kenyon did not receive a copy of Mr. Lopez's videotaped statement, until just prior to or just after the start of jury selection (Habeas Tr. Testimony of Barry Kenyon, Esq., at 405; Defendant's Appendix A, Exh. 63, copy of Rosario list indicating documents provided to defense counsel at commencement of trial).^[FN1] The videotape he received was in redacted form. Moreover, Mr. Kenyon was not provided with a copy of the People's written transcript of Mr. Lopez's videotaped statement during trial. By the time the Lopez videotape was disclosed to defense counsel on the eve of trial, counsel had already postulated a different theory about who the real shooter was. Defense counsel had theorized that the shooter was Wilfredo "Freddy" Maldonado, the man whose full name Mr. Lopez refused to reveal until his December 1991 meeting with the prosecutor shortly before the trial.

It was not until after the verdict that defense counsel fully understood the import of Mr. Lopez's videotaped statement. Shortly after the verdict, he sent his private investigator out to look for Wool Lou. The investigator learned that a man named Wool Lou actually existed, and was not simply part of a story made up by Mr. Lopez. Wool Lou lived a block away from Mr. Lopez. His [*7]name was Luis Munoz.^[FN2] The defense investigator immediately contacted Det. Massanova with this information and defense counsel filed a post-conviction motion to set aside the verdict.

Additionally, as acknowledged by A.D.A. James Rodriguez in the People's September 22, 1994 Memorandum of Law in Opposition to a prior CPL 440.10 motion (Defendant's Appendix C, Exhibit 79, at 16), Mr. Lopez had actually named the shooter as "Luis" during his videotaped statement on August 5, 1991. It appears Mr. Kenyon was unaware of this reference to the name Luis. Having reviewed the videotape of Mr. Lopez's interrogation myself, I heard Mr. Lopez's reference to Luis, although it was muffled and not easily discernable. It could have been mistaken for another repetition of Lou. Mr. Lopez stated: " ...a couple of guys was fightin' them, so I don't know if he got the best of Luis or somthin'..." (Videotape of Efraim Lopez on August 6, 1991, at 19:22 hours).

These repeated references to Lou as the shooter's name, and even a reference to the name Luis, posed a dilemma for the prosecution of a man named Fernando with a nickname of "Most." This dilemma was never placed before the jury. At trial the shooter's name changed to Woolu; wherein Woolu meant cocaine rolled in tobacco and where the "lu" portion of the name no longer had any known significance to Mr. Lopez, except as a possible nickname.

Additionally, at trial Mr. Lopez indicated the only person he called from the Marc Ballroom was his grandmother. However, in his videotaped statement, Mr. Lopez began to discuss a second phone call but stopped short and went back to discussing his grandmother. "I called my grandmother. And then I called my — when, after I talked to my grandmother I went back in." About a half hour after his use of the telephone, he saw Wool Lou for the first time in the club's lounge. The pay phone records from that evening were never subpoenaed by the police. (Trial Tr. Det Massanova at 883).

According to his videotaped statement, Mr. Lopez walked directly up to Wool Lou who was standing alone and pointed to the man who had hit him. "That's when they — when I — now, when I went back inside, that's when I seen him, and I approached him, I was like, yo, what's up? And he was like, what happened? I said I had a fight with this kid, and he didn't say nothin' after that." (Defense Appendix A, Lopez VT, at 11).

1. Newly Discovered Evidence

Pursuant to CPL 440.10(1)(g), "At any time after the entry of judgment, the court in which it was entered may, upon the motion of the defendant, vacate such judgment upon the ground that [n]ew 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 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."

At trial, the People's theory of prosecution was that the defendant, Fernando Bermudez, was [*8]the shooter. Mr. Bermudez, age 22, was a man of Dominican descent who had grown up in Inwood, at 590 West 204th Street. At the time of trial, he still resided at that address with his parents and siblings. The prosecution's trial theory was that Mr. Bermudez was actually Woolu, a drug dealer who hung around a park on West 92nd Street, selling cigarettes containing crack cocaine.

The People based this theory of prosecution entirely upon the testimony of Efraim Lopez, who testified at trial under a cooperation agreement. Under that agreement, Mr. Lopez was not charged with any crime. Efraim Lopez was the only witness who testified the defendant was "Woolu." The People called no other witnesses to corroborate that Mr. Bermudez had ever set foot in the park on 92nd Street behind Mr. Lopez's grandmother's home.

According to Mr. Lopez, while still inside the Marc Ballroom, he told Woolu that he had been punched in the face, and pointed Mr. Blount out to Woolu. Woolu retaliated by shooting Mr. Blount once in the abdomen, resulting in his death. This supplied the jury with the motive for the shooting; that the defendant was avenging the assault upon his friend and neighborhood associate. In the jury's eyes, Mr. Lopez had known Woolu for at least two years, how could his identification be mistaken? Even if the jury had any qualms about Mr. Lopez based upon his criminal record and his role leading up to the shooting, his identification was backed up by four stranger-on-stranger identifications, lending credence to Mr. Lopez's Woolu testimony.

The problem with the People's trial strategy is that newly discovered evidence before this court demonstrates, without question, that the prosecution's trial theory was based upon false testimony by Efraim Lopez.

In prior post-conviction proceedings, the People took the position that Mr. Lopez's post-trial affidavits, recanting his identification of the defendant, along with the recantations of all four eyewitnesses, were the product of coercion or pressure by the defense. This argument prevailed, based upon the long standing reluctance of courts to overturn a jury conviction on the basis of recantation evidence.

Now, however, the situation has significantly changed. Beginning in 2006, the People began their own investigation into Luis Munoz. In 2007, the District Attorney's investigator was able to locate and speak to Luis Munoz for the first time. (Defendant's Appendix D, Exh. 95). Luis Munoz was subsequently interviewed in person by an Assistant District Attorney newly assigned to the case. During the interview, counsel for Mr. Munoz was also present. (Defendant's Appendix D, Exh. 101).

The District Attorney now concedes that Fernando Bermudez is not Woolu or Wool Lou. Luis Munoz is Wool Lou.

Thus, in this proceeding, the People have affirmatively conceded for the first time facts that unquestionably demonstrate Mr. Lopez gave false testimony at the defendant's trial. I find that false testimony was material, substantial, and pervasive.

In opposition to a finding of newly discovered evidence, the People argue Mr. Munoz's admission that he was Wool Lou, as well as their current acknowledgment that Mr. Lopez gave false testimony at trial, does not constitute new evidence. The People argue this is not newly discovered evidence because the defendant has been claiming he was not Wool Lou all along. The People take this position despite the fact that they opposed all of the defendant's prior post-conviction claims on this same ground. This contention is unreasonable. First, the People argued the defendant's allegations were without merit. Yet now that the People have learned the defendant's position unequivocally is meritorious, they argue it's too late, the defendant already claimed this years ago. [*9]I find such reasoning cannot prevail. Clearly, the People's concession that the testimony of a material trial witness was false, along with the admission by Luis Munoz that he was Wool Lou, is newly discovered evidence. See, People v. Wong, 11 AD3d 724 (3d Dept 2004).

Additionally I reject the People's argument, set forth in their Post-Hearing Memorandum dated October 9, 2009, that Mr. Lopez's false testimony is not newly discovered evidence because A.D.A. Rodriguez previously acknowledged that Luis Munoz was "Wool Lou" during his 2002 habeas corpus testimony. The People make this claim based upon a question and answer stricken from A.D.A. Rodriguez's habeas testimony. They ask this court to consider this testimony, despite it being stricken as non-responsive to the question.

A.D.A. Rodriguez: "When the defense filed papers indicating their contention that Wool Lou was Luis Munoz and he was a real shooter, I ran a record check on Munoz. I believe he had a car theft record which was similar to Lopez's criminal history. I surmised from that that he might have misidentified the defendant by name only to mislead the police during the videotape interview I took of him. But that had no effect whatsoever in his photo array identification and in-court identification of the defendant." (Habeas Tr. 760, lines 7-16).

To the extent the People argue that A.D.A. Rodriguez was already aware at the time he filed his response to defendant's CPL 330.30 motion that Mr. Lopez had falsely identified the defendant as Wool Lou at trial, this testimony supports a finding that the People knew of Mr. Lopez's materially false testimony prior to the imposition of sentence, requiring a new trial. (See, discussion of CPL 440.10[1][c] infra). It does not, however, negate the new evidence obtained directly from Luis Munoz admitting that he was the person named Wool Lou.

Furthermore, the prosecutor never affirmatively conceded in any prior CPL 440 proceedings that Luis Munoz was Wool Lou. In the People's brief to the First Department in September of 1997, the People continued to vouch for Mr. Lopez's trial testimony: "Indeed, Lopez's testimony, standing alone, sufficed to warrant the jury's verdict." (Brief for Respondent, Defendant's Appendix C, Exh. 77, at 44).

Moreover, contrary to the People's contention, Mr. Lopez's two in-court identifications of the defendant cannot be considered credible in light of this new evidence. At both identifications, Mr. Lopez identified the defendant as "Woolu," not as the shooter.

The manner in which the first identification was obtained on the People's direct case was itself inappropriate and suggestive. Rather than asking Mr. Lopez to look around the courtroom to see if he recognized the man who shot Mr. Blount, A.D.A. Rodriguez specifically directed Mr. Lopez's attention to the defendant and asked Mr. Lopez if he recognized him.

Although A.D.A. Rodriguez asked Mr. Lopez if he knew the person he was pointing out by any "other name," Mr. Lopez had not testified about the defendant or the shooter in any way prior to this leading identification.

On re-direct examination, A.D.A. Rodriguez again elicited an in-court identification of the defendant. Mr. Lopez once again identified the defendant as Woolu. Moreover, the Assistant directly asked Mr. Lopez if he knew the defendant's real name and Mr. Lopez indicated he did not. The Assistant made no attempt to correct this testimony, despite the fact he was aware Mr. Lopez had previously identified the shooter as both Lou and Luis before trial.

Q:(by A.D.A. Rodriguez): Mr. Lopez, on August 19, 1991, did you know someone named Woolu?

Q:Do you see the person in the courtroom today that you knew by the name of Woolu in August of 1991?

I find the defense made diligent efforts to locate Luis Munoz as soon as they learned of his existence and never gave up trying to locate him. They were able to locate many friends and relatives of Mr. Munoz, but not Mr. Munoz himself. The defense made prior CPL 440.10 motions as soon as they obtained new evidence. However, because of their inability to locate Mr. Munoz, and the People's continued refusal to acknowledge that Luis Munoz was Wool Lou, they did not prevail on their prior motions.

Luis Munoz was only located with the full resources of the District Attorney's office. When the investigation was in the hands of a different prosecutor, the District Attorney's office with the cooperation of law enforcement authorities from multiple states, including the State of Kentucky, was ultimately able to locate Luis Munoz and obtain an admission from Luis Munoz that he was Wool Lou.

As demonstrated by the documents produced in the course of the People's recent investigation, the People engaged in numerous searches prior to locating Mr. Munoz. Although the defense hired a private investigator and had lawyers who volunteered their time in an attempt to locate Mr. Munoz, they did not have the resources of either the police or prosecutors. Thus, I reject the People's argument that the defendant did not exercise due diligence because he did not succeed in tracking down Luis Munoz, a person who fled New York and repeatedly changed residences in different states, all the while using an alias.

As noted in People v. Tankleff, 49 AD3d 160, 180 (2d Dept 2007), "[T]he due diligence requirement is measured against the defendant's available resources and the practicalities of the particular situation" (34 NY Jur. 2d, Criminal Law § 3064, at 866; see, People v. Hildenbrandt, 125 AD2d 819, 821, 509 NYS2d 919)." In Tankleff, the court found it was improper to attribute a lack of due diligence to Mr. Tankleff. The court noted that the defendant's investigation into the newly discovered evidence required time to accumulate. The new evidence came from many witnesses, a number of whom were unrelated to each other. Taken together, the cumulative effect of the new evidence created a probability that, had such evidence been received at the trial, the verdict would have been more favorable to the defendant. Id. at 181.

It is now firmly established that Mr. Lopez's entire story about Mr. Bermudez being Woolu was a total fabrication. To date, more than 18 years after the shooting, absent this false testimony, no legitimate connection has been shown to exist between Mr. Bermudez and Efraim Lopez, or the group of Hispanics youths from the area of West 92nd Street.^[FN4] I find, infra., that the only other trial [*12]evidence, the four stranger identifications, long since recanted, have been demonstrated, by a preponderance of the evidence and beyond, to be mistaken and the product of unduly suggestive procedures.

Even if those identifications were still deemed credible, they could not overcome the prejudice to a fair trial from the blatantly false evidence placed before the jury through the testimony of Efraim Lopez.

The People's attempt in their Post Hearing Memorandum to minimize Mr. Lopez's false testimony, by referring to it as false pedigree information, is disingenuous. Mr. Lopez testified to a two year relationship with Mr. Bermudez that did not exist. Mr. Lopez placed the defendant in his neighborhood as a drug dealer. He gave him a motive to shoot Mr. Blount and placed him at the Marc Ballroom. He turned him into Wool Lou, the person he indicated had committed the murder.

Without Efraim Lopez's false testimony, the result of the proceeding would most certainly have been different, meeting the Salemi test. The jury would have been left with only stranger-on-stranger identifications, fleeting in nature, which were made under stress or while focused on the shooter's hand, T-shirt, or gold chain. Moreover, no forensic evidence of any type has ever linked Mr. Bermudez to this crime.

The People's position that this court should uphold a conviction based in materially false testimony is untenable in our system of justice, especially where the only remaining evidence, stranger identifications, have been recanted.

Furthermore, it ignores the additional and important fact that Luis Munoz, whose pictures have been supplied to this court, bears a strong resemblance to Fernando Bermudez. (See, e.g., Defendant's Appendix A, Exh. 54). Their facial features are very similar. The main difference between them is that Mr. Bermudez is a heavier man, appearing to weigh more than Mr. Munoz in pictures taken at around the same period of time.^[FN5] Both men were about the same age at the time of the crime; Mr. Bermudez was 22, Mr. Munoz was almost 21. Both were Hispanics who wore their hair in a "faded" style, long on top, short on the sides. However, Mr. Bermudez is Dominican while Mr. Munoz is Puerto Rican, as is Mr. Lopez. Notably, Mr. Lopez originally told Det. Massanova [*13]that the shooter was Puerto Rican. He also described the man as having acne. Mr. Bermudez did not have acne.

The stranger recantations in this case are not claims of mistaken identification made in a vacuum. Here a strong factual basis for mistaken identifications has been demonstrated by evidence which shows two people who might easily be confused for each other, especially when looking at a stranger during a quick and stressful event. Moreover, as detailed within, the stranger identifications were contaminated by unduly suggestive identification procedures.

Despite the fact that the People's trial theory was that the defendant was someone we now know he was not, the People argue he should not be entitled to a new trial. I cannot accept such an argument. I find, by the false testimony alone, the trial jury was substantially mislead and its verdict cannot stand. Mr. Bermudez did not receive a fair trial where, as here, newly discovered evidence unquestionably demonstrates significant evidence presented to the jury was a fictional account.

I find the Salemi factors and the requirements for a new trial pursuant to CPL 440.10(1)(g) have been satisfied. People v. Salemi, 309 NY 208 (1955), cert denied 350 US 950 (1956). The newly discovered evidence, that Luis Munoz is admittedly Woolu or Wool Lou, was not discovered until after the trial, nor could it have been discovered by the defense before or during trial by the exercise of due diligence.

Also, the new evidence relating to Luis Munoz is not limited to his acknowledgment that he was Wool Lou, that he had been involved in drugs, that he knew Efraim Lopez for a number of years before the shooting, that he lived on West 91st Street, and that he hung out in the park behind Mr. Lopez's grandmother's building on West 91st Street.

In addition, Mr. Munoz's professed alibi for the date of the murder, including his claim that he had moved to Kentucky prior to the homicide and had engaged in various employments before August 4, 1991, could not be substantiated by the prosecutor's own investigation. The People object to this court's consideration of their investigation results. However, I find their investigative results were properly admitted as impeachment material with regard to the People's position that Luis Munoz was not the shooter.

The information the People obtained during their own independent investigation, all point to the conclusion that Mr. Munoz's alibi was false. (See, further discussion of the investigation of Mr. Munoz's alibi infra, in the discussion of actual innocence, see also, Defendant's Appendix A, Exhibits 70 - 74; Defendant's Appendix D, Exhibits 97- 101).Luis Munoz adopted an alias after the shooting. Although the People seek to discount this name change, alleging that Alonzo was Mr. Munoz's grandmother's maiden name, it is clearly significant that he was known as Luis Munoz prior to the date of the crime, but after the crime he moved to Kentucky and went by the name of Luis Alonzo.

I find that the recantations of the four stranger eyewitnesses must be reexamined in light of newly discovered evidence. Prior to the habeas corpus hearing, the degree of suggestive identification measures employed in this case was unknown. The testimony of the eyewitnesses at the habeas proceeding and the finding of unduly suggestive identification procedures by Magistrate Fox and District Judge Preska, constitute newly discovered evidence.

Based upon my own evaluation of these recantations, after hearing testimony at the CPL 440 hearing and reviewing all of the evidence, I find them reliable. I find the original identifications [*14]were the product of unduly suggestive procedures as well as mistaken identification. See infra.

In People v. Shilitano, 218 NY 161 (1916), the Court of Appeals long ago set forth the manner in which courts should approach witness recantations made after a guilty verdict. The Court was concerned that witnesses could be tampered with or threatened after trial to induce them to change their testimony. Thus, the Court cautioned judges to review recantation evidence carefully and not to lightly overturn a jury verdict.

People v. Shilitano is most often quoted for its statement that: "[t]here is no form of proof so unreliable as recanting testimony." Id. at 170. However, the Court in Shilitano made clear that recantation testimony is not to be rejected outright. It must be weighed carefully in light of all the circumstances of the case. Specifically, the court said:

I find the unduly suggestive identification procedures, infra; combined with the witnesses fleeting observations on the night of the crime, see also, infra; support a finding that their recantations are truthful and credible. Further, I find these recantations were obtained by a private investigator and defense attorneys in a non-suggestive manner, using a photo array containing a picture of Luis Munoz.

Accordingly, defendant's conviction is hereby vacated pursuant to CPL 440.10(1)(g) and CPL 440.10(5)(a). Newly discovered evidence has demonstrated the probability that had such evidence been received at the defendant's trial, the verdict would have been more favorable to the defendant. The remedy ordered pursuant to this subdivision is a new trial.

2.THE PROSECUTION'S KNOWLEDGE OF MATERIAL, FALSE TESTIMONYPRIOR TO THE ENTRY OF JUDGEMENT

Pursuant to CPL 440.10(1)( c), a judgment of conviction may be vacated if: "Material

evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false." Judgment is entered when a defendant is sentenced. "A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence." CPL 1.20(15). Mr. Bermudez was not sentenced until September 18, 1992, after the filing and denial of his CPL 330.30 motion.

Initially, the People argue that by the language of the statute, the defendant must demonstrate the prosecutor had actual knowledge of the false testimony. The case law interpreting CPL 440.10(1)( c ) does not support this conclusion.

In People v. Wikowski, 19 NY2d 839 (1967), the Court of Appeals analyzed a motion for a writ or error coram nobis, prior to the passage of CPL 440, wherein the defendant alleged there had been false testimony by a prosecution witness. The Court stated, the question is "...whether the [*15]prosecution knew, or had reason to know, that such testimony was false."

In People v. Robertson, 12 NY2d 355 (1963), the Court set aside a conviction where a police officer gave false rebuttal testimony. The Assistant District Attorney who had tried the case testified he had no knowledge at the time of the criminal trial that the testimony was false. The Court held that the officer's false testimony, even if unintentional, was chargeable to the prosecution. "The fault of the offender may be less but the effect is the same and the giving of carelessly false testimony is in its way as much of a fraud' on the court as if it were deliberate." Id., at 360.

Our Appellate Division addressed this issue in People v. Stern, 226 AD2d 238, 240 (1st Dept), appeal denied 88 NY2d 969 (1996). The court, in affirming the denial of defendant's 440.10(1)( c) motion, stated: "...there was no evidence at all indicating that the prosecutor knew or should have known that the testimony was false." (Emphasis added). Likewise, in People v. Irwin, 180 AD2d 753 (2d Dept), appeal denied 79 NY2d 1002 (1992), the court stated: "While the false testimony Dubey gave about his educational background might have affected the jury's assessment of his credibility, there is nothing in the record indicating the prosecution was aware, or should be charged with knowledge that he was misrepresenting his credentials." (Emphasis added).

Thus, both the First and Second Departments have acknowledged that CPL 440.10(1)( c ) encompasses both actual knowledge and situations where the prosecutor should have known of false testimony. Thus, where it is demonstrated that a prosecutor has turned a blind eye to materially false testimony, a judgment of conviction must be vacated.

I have taken into consideration the sworn habeas corpus testimony of A.D.A. Rodriguez, that as far back as 1992, before entry of judgment, he surmised that Efraim Lopez had lied when he testified the defendant was Wool Lou. I find this testimony alone demonstrates the People knew of the existence of Mr. Lopez's materially false testimony prior to the entry of judgment.

However, even without this testimony, I find the evidence demonstrates that the People knew, or should have known, that Mr. Lopez's testimony was false prior to the entry of judgment.

From the first time that A.D.A. Rodriguez interviewed Efraim Lopez on August 5, 1991, he was aware that Mr. Lopez knew the shooter's name was Lou or Luis. His nickname, Wool Lou meant the shooter, Lou, sold wools. Wools are cigarettes with cocaine rolled inside. Although Mr. Lopez named the shooter as Lou before ever mentioning his street name, none of the questions thereafter posed to Mr. Lopez during the videotape interview ever asked him about Lou. Instead, the prosecutor and the detective only asked questions about "Wool Lou" throughout the remainder of the videotape. (See, Defendant's Appendix A, Lopez VT).

At trial, neither the prosecutor nor Mr. Lopez ever referred to the shooter as Lou. The prosecutor went so far as to elicit from Mr. Lopez, without correction or further inquiry, the following testimony:

The prosecutor had a duty to correct this testimony as he was aware that Mr. Lopez had previously stated the shooter's name was Lou and Luis. As noted in People v. Savvides, 1 NY2d 554, 557 (1956): "A lie is a lie, no matter what its subject and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the [*16]truth." The failure to correct false or mistaken material testimony of a prosecution witness is a violation of a defendant's right to due process of the law. People v. Bournes, 60 AD3d 687 (2d Dept), lv denied 12 NY3d 913 (2009).^[FN6]

Moreover, Private Investigator Michael Gaynor contacted Det. Massanova prior to Mr. Bermudez's sentencing and thus, prior to the entry of judgment, and furnished him with the information he had obtained that Luis Munoz was the real Wool Lou. He provided Det. Massanova with Luis Munoz's home address, 136 West 91st Street, Apt. 15K. Det. Massanova affirmatively stated that he would look into the matter. He indicated, in a tape recorded telephone conversation with Mr. Gaynor, that he would be negligent if he failed to follow up on this lead.

Gaynor:...Let me ask you this. If...if you had information that Wool Lou and Shorty was — that Shorty (who is really Pito, Efrain Lopez)...

Gaynor...had a friend that he knows for at least five years by the name of Wool Lou who is not Bermudez and that Wool Lou skipped town right after the homicide and is now in another state, would you be interested in following up on that.

Massanova:Of course we would be. I mean we'd be negligent in not doing it, don't you think?(Defendant's Appendix C, Exh. 91, page 1).

Massanova:Okay (Pause) Well, if you want to pass on this information, I'd be more than happy to look into it. (Pause). I mean, that's my job here.

Gaynor:Right. His first name is Luis. -L-U-I-S, I believe, but it could be L-O-U-I-S.

Gaynor:His address, his grandmother still lives there, at the time of the murder, was 136 West 91st Street, Apartment 15K as in King.

Massanova:All right, well, I appreciate this bit of information, and I will make an inquiry to find out who this person is. No doubt that I'll follow this up. But uh, the bottom line is, I mean, you know, you're working on an appeal here. Let's see what happens. And I gotta naturally run this by the assistant district attorney who's handling the case.

Mr. Gaynor informed Det. Massanova that his information was that Wool Lou had fled to Virginia after the shooting (although Mr. Munoz had fled down south, we now know he fled to Kentucky and not Virginia). Mr. Gaynor provided the detective with two telephone numbers he had obtained for Munoz.

Det. Massanova, as promised, relayed this information to A.D.A. Rodriguez prior to defendant's sentencing. However, despite explicit promises made to Private Investigator Gaynor that the police or prosecutor would look into the question of whether Luis Munoz was the actual shooter, it appears the only inquiry the prosecutor ever made regarding Luis Munoz was to obtain a copy of his criminal history. Although he later testified at the federal habeas proceeding that this criminal history information made him doubt the truth of Mr. Lopez's testimony, he made no further efforts to look for Mr. Munoz or investigate his possible involvement in the homicide. Instead, he filed responding papers to defendant's CPL 330.30 motion, opposing defendant's claim that Luis Munoz was the shooter.

In sum, I find that the prosecutor knew, or should have known, that Efraim Lopez gave materially false evidence at trial, prior to the entry of judgment. Accordingly, pursuant to CPL 440.10(1)( c ), the judgment of conviction is vacated and a new trial is ordered.

3. UNDULY SUGGESTIVE IDENTIFICATION PROCEDURES

The four eyewitnesses who testified for the prosecution at trial were Okpa Iyesi (now known as Paul Iyesi); Jaime Velasquez; Frank Kent (now known as Frank Marchany); and Michael Thompson. Subsequent to the defendant's trial, all four of these eyewitnesses recanted their identifications of the defendant as the shooter.

At the federal habeas corpus proceeding the four eyewitnesses testified they had mistakenly identified the defendant. Their testimony as to the manner in which they collectively viewed photographs resulted in a finding by United States Magistrate Judge Kevin Nathaniel Fox that unduly suggestive identification procedures had taken place. See, Report and Recommendation dated March 29, 2004 (00 Civ. 4795).

Magistrate Fox found "...that, at the CATCH Unit they [the eyewitnesses] freely discussed the photographs that were being reviewed and that were selected. Therefore, the court finds that the procedures employed by law enforcement officers at the CATCH Unit did not ensure that photographic selections would be based on the independent observations and recollections of the witnesses. Rather, the witnesses' ability to discuss and to agree upon whether photographs selected were of participants in the shooting incident made the CATCH Unit exercise impermissibly suggestive and conducive to irreparable misidentification." (Magistrate Fox Decision, Defendant's Appendix A, Exh. 44 at 64).

Despite this finding, Magistrate Fox found an independent source for the eyewitness identifications based upon their trial testimony regarding their observations of the shooter. District [*18]Court Judge Loretta A. Preska adopted Magistrate Fox's Report and Recommendations in their entirety and denied the petition by Order dated March 8, 2006. (Defendant's Appendix A, Exh. 47). Judge Preska found that despite the fact that the photographic identification procedures were impermissibly suggestive, Magistrate Fox had properly concluded that under federal law, the trial testimony of those witnesses as to the their identifications of Bermudez as the shooter were sufficiently reliable to uphold the conviction.

New York law does not allow a conviction to stand after a finding that unduly suggestive identification procedures were employed. People v. Burts, 78 NY2d 20 (1991). In Burts, the Court of Appeals held that having multiple eyewitnesses jointly engaged in making photographic identifications constitutes an impermissible suggestive procedure. Rejecting the notion that the effects of unduly suggestive identification procedures upon eyewitness identifications can be deemed overcome by an evaluation of the trial testimony of those eyewitnesses, our Court of Appeals stated:

I find, based upon all of the evidence before me, that the photographic identification procedures employed in this case were unduly suggestive in violation of the New York State and Federal Constitutions. Accordingly, pursuant to CPL 440.10(1)(h), defendant's conviction is vacated. Under Burts, a new trial is ordered, to be preceded by a Wade/independent source hearing.

My decision that unduly suggestive identification procedures were employed is based upon the following findings of facts and conclusions of law from a review of the Wade hearing testimony, the trial transcript, and the relevant portions of the habeas corpus hearing and CPL 440 hearing.

At the Wade hearing held before Judge Bradley on December 20, 1991, the only witness to testify with regard to the photographic identification procedures at the CATCH Unit was Detective Michael Lentini. Overseeing the photographic identification procedure was Det. Lentini's only involvement in the homicide investigation.

On August 4, 1991, Det. Lentini and his partner, Det. William Fitzpatrick, were assigned to transport the eyewitnesses from the 6th Precinct to the CATCH Unit, a repository for mug shots of people who had been arrested in Manhattan. Because it was a Sunday, the CATCH Unit was not open and the detectives had to obtain a key to the Unit from the desk officer at the 20th Precinct.

Once all of the eyewitnesses were assembled at the CATCH Unit, Det. Lentini obtained a description of both the shooter and of "Shorty" from all of the witnesses at the same time. According to Det. Lentini, seven witnesses were present from whom he obtained these collective descriptions: Jaime Velasquez, Okpa Iyesi, Frank Kent, Michael Thompson, Lawrence Darden, Nkosi Boyce, and Terrence Hall. Det. Lentini also testified at the habeas corpus proceeding and at the CPL 440.10 hearing.

During Det. Lentini's September 3, 2009 testimony before this court, he described how he obtained this collective description. He assembled all of the eyewitnesses in the CATCH unit and asked them if the shooter was taller or shorter than himself, and whether the shooter was slimmer [*19]or heavier than he was. He did not recall which of the witnesses, or how many of the witnesses, actively participated in the creation of the joint descriptions of Shorty or the shooter. However, based solely upon these jointly obtained descriptions, Det. Lentini selected the drawers of photographs for the eyewitnesses to view. His best guess was that, for the shooter, he pulled drawers of photographs which met the parameters of a Hispanic male, about 5' 11" and about 165 pounds. The photographs in the drawers were not specific to 5'11" or 165 pounds, rather they could contain photos of people somewhat taller or shorter, and heavier or lighter, than the actual collective description. At the time of his arrest, the defendant was about 6 ' 1" and about 215 pounds.

Det. Fitzpatrick, testified for the first time at the CPL 440.10 hearing before me on September 4, 2009, eighteen years after the events he was describing. According to both Det. Fitzpatrick and Det. Lentini, after obtaining descriptions of the shooter and Shorty from all seven witnesses, and then instructing them as a group on the procedure to use, they removed four witnesses from the room and only left Mr. Darden, Mr. Boyce and Mr. Hall in the viewing room. They testified these three witnesses were seated at a long table and each were given a drawer of photographs corresponding to the description obtained for Shorty. After Mr. Darden selected Shorty's photograph, this group was moved out of the viewing room and Mr. Iyesi, Ms. Velasquez, Mr. Kent and Mr. Thompson were brought in to look through drawers for the shooter's photograph.

However, this testimony is directly contradicted by the trial testimony of Paul Iyesi, given only one month after the Wade hearing. This testimony was provided long before Mr. Iyesi ever recanted his trial testimony and long before he had any reason to suspect that his presence or absence during the CATCH Unit photographic identification procedure for "Shorty", Efraim Lopez, had any legal significance. Mr. Iyesi testified that he was present when Mr. Darden found Shorty's photograph. Initially he indicated Mr. Hall found the photo but then corrected himself and stated Mr. Darden, known as Truth, had found Shorty's photo. During his cross-examination at trial, Mr. Iyesi testified:

A:We came in and the policemen started handing us files of pictures and said, "look through. If you see anybody." I was looking through. Terrence picked up a picture and looked at it. And I looked over his shoulder and I said, "That's him. That's him." And Terrance said, "I know that's him." He said, "that's him. That's the one that got beat up." The cop said, "don't show him the picture. Don't show him the picture."

A:Yeah, on one big long table. And I was here, and Truth was right like - - he was about two or three feet away from me. He picked up the picture and I was flipping - -

A:He was looking at it. And I looked over his shoulder, you know, look over there and I said, that's him. That's him." And - -

A:Yeah. And Truth said, "yeah, I know. And the cop took the picture. He said, "don't be talking. Don't be talking."

Because the photographic procedure relating to the selection of Mr. Bermudez's photograph was inadmissible at trial, no testimony was elicited from Mr. Iyesi as to how the his picture was selected. However, Mr. Iyesi's testimony is significant in that it demonstrates the detectives were mistaken as to which eyewitnesses were present when the photographs were being viewed.

Det. Lentini testified at the Wade hearing, in federal court, and before me, that Det. Fitzpatrick was seated behind a desk where a civilian administrative clerk would normally sit to greet people entering the office. Det. Lentini believed Det. Fitzpatrick could see the entire room from that position. He described the viewing room as about the size of a courtroom, 30 by 60 feet. Det. Lentini did not recall the distance between the large table where the eyewitnesses were seated, and the civilian clerk's desk where Det. Fitzpatrick was stationed. (CPL 440 Tr. 485). According to Det. Lentini, Det. Fitzpatrick remained at that desk throughout the entire viewing procedure. Det. Lentini walked around the room but admitted to leaving the room on a number of occasions. Det. Fitzpatrick believed that during the identification procedure, he was seated in a chair with a view of the table where the witnesses were sitting. (CPL 440 Tr. 568). Both detectives indicated the witnesses were instructed not to talk to each other and to call Det. Lentini over if they found a photograph.

Det. Lentini stated that Jaime Velasquez found two pictures. The second picture, the defendant's photograph, was turned over to him by Ms. Velasquez when he returned to the viewing room after calling the 6th Precinct about another photograph. She called him over, slid a picture to him face down, and made a hand motion, indicating a gun. He recalled Jaime saying something to the effect of "who is the cutie?" However, he did not recall when she made that comment. (Habeas Tr. 478, 492). He took Ms. Velasquez to a supervisor's office within the CATCH Unit. There she told him that that the photograph was of "the guy who shot the guy." Based upon her identification, Det. Lentini relayed the identifying information by telephone to the detectives at the 6th Precinct.

Immediately after Ms. Velasquez picked the defendant's photograph, the photo identification procedure was concluded and the witnesses were taken back to the 6th Precinct. The remaining eyewitnesses did not get to look through the rest of the drawers of photographs matching the criteria of their collective description, or even to finish looking through the drawers they were in the process of viewing. (Wade Tr. 42, lines 7-10). Instead, the identification procedure was terminated.

Det. Lentini admitted that Lawrence Darden, "Truth," disregarded his instructions not to discuss the photographs when he found the photograph of "Shorty." Mr. Darden yelled out "I found Shorty" and waved the picture in the air. Det. Lentini told him to be quiet and put the photo on the table. He then took Mr. Darden into the supervisor's office and called in the information relating to Shorty.

Det. Fitzpatrick confirmed that Det. Lentini had instructed the witnesses not to talk among themselves, however, he admitted that the witnesses did converse. He described their conversations as "chit chat" and the discussion of trivial matters only. He did not testify as to the contents of any of their conversations. Det. Fitzpatrick denied that anyone had ever displayed any photographs during the photographic procedures. (CPL 440.10 Tr. 552, 570). This testimony directly contradicted Det. Lentini's testimony, as well as Mr. Iyesi's trial testimony, that Mr. Darden displayed the [*21]photograph of "Shorty" to the other witnesses in the viewing room.

I do not credit Det. Fitzpatrick's testimony that the witnesses did not discuss the defendant's photograph. The descriptions of the viewing room fail to demonstrate Det. Fitzpatrick was in a physical position to actually hear the contents of the "chit chat" between the eyewitnesses. Det. Fitzpatrick could not have known whether the witnesses were merely discussing trivial matters or were discussing the photographs amongst themselves. After Mr. Darden was admonished by Det. Lentini, subsequent discussions were what one would expect from a group of chastised teenagers, surreptitious and undisclosed to the detectives. This comports with Det. Fitzpatrick's statement that overseeing the viewing was like proctoring an examination. (CPL 440 Tr. 568). The purpose of proctoring students during a test is to watch for cheating. These young witnesses, not understanding the import of their behavior, did just that, they cheated and discussed the defendant's photograph amongst themselves, before Det. Lentini returned to the room. I find, based upon the testimony of the detectives and the eyewitnesses, that a collective identification of the defendant's photograph did in fact occur.

Further, I conclude all of the eyewitnesses were in the room together when the photographs were viewed. The trial testimony of Paul Iyesi convinces me that the detectives were in error in their recollection that the witnesses were in the viewing room at two different times. This was corroborated by the witnesses at the CPL 440 hearing. (CPL 440 hearing Tr. 230 - 231, Mr. Iyesi was present when Shorty's picture was pulled out); (CPL 440, Tr. 103, 114, 117, Mr. Darden stated everyone was present when he found Shorty's picture).

First, Det. Lentini took a joint description of Shorty, the person who had been punched inside the Marc Ballroom; as well as a joint description of the shooter, from all of the eyewitnesses at the same time. Next, all of the witnesses were instructed at the same time regarding the manner in which to proceed while looking at the photographs and what to do if a photograph was located. People's Exh. "9" from the CPL 440.10 hearing demonstrates how all of the eyewitnesses were treated as one group. All seven "Picture File Search Reports" prepared for the seven different eyewitnesses contain identical descriptions of the shooter and Shorty.

Mr. Darden, Mr. Hall and Mr. Boyce received drawers of photographs designed to locate Shorty, while the remaining witnesses received drawers of photographs designed to locate the shooter. The likely placement of the two groups of witnesses at different ends of the table explains the overlap, wherein some witnesses were able to view the choices of the other group. Mr. Iyesi was able to see Shorty's picture even though he was not in the group looking for Shorty's picture. The detectives' belief that they separated the witnesses is further explained by the fact that the two groups arrived at separate times and were focused on identifying different individuals.

Even if the eyewitnesses were incorrect, and there had been two separate viewings, this would not alter the fact that the four eyewitnesses who testified at trial were in the viewing room together and clearly recalled "cheating" and viewing the defendant's photograph while still at the CATCH unit. In fact, the detectives' version of the events would only strengthen a finding that the four trial eyewitnesses viewed the defendant's picture together at the CATCH unit. This would explain why they picked the defendant's photo from both the array and lineup while Mr. Boyce, Mr. Darden and Mr. Hall did not.

I credit Jaime Velasquez's habeas testimony that all of the witnesses were in the CATCH unit's viewing room together and looked at each others pictures. Likewise, Mr. Thompson testified [*22]credibly at the habeas corpus proceeding and at the CPL 440 hearing as to the joint viewing of photographs. He recalled Jaime saying something about a cutie. (Habeas Tr. 14, 56; CPL 440 hearing, Tr. 136; 154). Frank Kent, now Frank Marchany, likewise recalled that Jaime found Mr. Bermudez's picture and remarked that he was a cutie. (Habeas Tr. 12; CPL 440 hearing, Tr. 194). Opka (Paul) Iyesi also recalled Jaime finding Mr. Bermudez's photograph and describing him as cute while they all conferred on whether he was the shooter. (CPL 440 Tr. 232, 263, 309). Even Det. Lentini recalled Jaime mentioning that the person in the photograph was a cutie.

At the CPL 440 hearing, an additional witness, Husani Blue, then known as Husani Woodward, testified she was also present at the CATCH Unit. Ms. Woodward was at the scene of the shooting, standing next to Jaime Velasquez, when Mr. Blount was shot. She testified that all eight witnesses at the CATCH unit looked at photographs together. Other witnesses, including Mr. Thompson, Mr. Kent/Marchany and Mr. Iyesi all testified Ms. Woodward was present at the CATCH unit (CPL 440 Tr. 151, 194, 230, 254). Furthermore, Ms. Woodward's mother signed a sworn affidavit indicating she had taken her daughter to the 6th Precinct on the afternoon of August 4, 1991 and was told her daughter was going to be transported to an uptown precinct to look at photographs they kept on file there. Her daughter did not return home until 10 p.m. that evening. (Defendant's Appendix D, Exh. 94). Although I see no reason why Ms. Husani Woodward or her mother would give false sworn statement, it is unnecessary to determine whether or not Ms. Woodward was present at the CATCH unit. She did not testify to seeing the defendant's photograph and did not pick the defendant in the lineup procedure.

I find this conviction must be vacated pursuant to CPL 440.10(1)(h), based upon a series of suggestive identification procedures. Initially, a joint description of the shooter was obtained from all of the eyewitnesses, encouraging collaboration between the eyewitnesses. Next, Jaime Velasquez located a picture of someone she thought was cute; cute like the man she had seen at the Marc Ballroom. The defendant's picture was displayed by Jaime to the other trial eyewitnesses, who together concluded the defendant looked like the shooter. The police, not knowing Jaime had shown defendant's photograph to other witnesses, compounded the suggestiveness by only hours later showing Mr. Iyesi, Mr. Kent and Mr. Thompson the same photograph of the defendant they had already seen, now in a six person photo array. Having reviewed the photo array myself, I find it was not one of the better ones I have seen over the years. The defendant is lighter skinned than all but one other man, and he is the only man with a fade haircut, an important identifying feature Mr. Bermudez shared with the actual shooter. (People's Exh. "14" in evidence at the CPL 440 hearing).

Further suggestiveness occurred when the display of the array was accompanied by a suggestive instruction from Det. Massanova: "I want you to look at these six photos here in front of you and to decide which one you think is responsible." (Wade hearing testimony of Det. Massanova, Tr. 53, lines 2 - 24), see further discussion, infra. One day later, the witnesses observed the defendant yet again in a seated lineup. Additionally, the witnesses were left together prior to viewing the photo array and lineup. At all of these procedures, the witnesses could not see the defendant's actual size, viewing either head shots or the seated lineup. The combined effect of all of these procedures rendered their identifications at trial tainted and unreliable. Moreover, the joint viewing of the defendant's photograph at the CATCH unit alone is sufficient to support a finding of unduly suggestive identifications.

Accordingly, I find unduly suggestive identification procedures violated defendant's rights [*23]under the New York Constitution. CPL 440.10(1)(h). Defendant's conviction is vacated upon this ground and a new trial is ordered.

4. ACTUAL INNOCENCE

On a claim of actual innocence claim, a defendant moving to have his conviction set aside must demonstrate, by clear and convincing evidence, that he is actually innocent of the crime for which he was convicted. Under this standard of review, unlike a CPL 440.10(1)(g) motion, new evidence may be considered, whether or not it satisfies the Salemi factors. For example, if new evidence overwhelmingly demonstrates a defendant's actual innocence, but could have been discovered by the time of trial by the exercise of due diligence, it would not meet the requirements of CPL 440.10(1)(g). Further, the right to raise a claim of actual innocence would obviate other legal barriers, such as prior adverse court determinations, which might otherwise bar further recourse to the courts. I find the due process clause of our State Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence.

Under a claim of actual innocence, the hearing court may examine all of the currently available, credible evidence in order to determine whether the defendant has met his burden of proof. As noted in Justice Blackmun's dissent in Herrara v. Collins, 506 US 390, 435 - 437 (1993), to ignore a claim of actual innocence would be "fundamentally unfair" as a matter of procedural due process.

I find our State Constitution provides a state prisoner alleging actual innocence with greater protection than the federal constitution, by enabling a freestanding claim of actual innocence to be raised by post-conviction motion. See, People v. Cole, 1 Misc 3d 531 (Supreme Court, Kings Co. 2003); People v. Wheeler-Whichard,Misc 3d, 884 NYS2d 304, {25 Misc 3d 690} (Supreme Court, Kings Co. 2009); See also, People v. Washington, 171 Ill.2d 475, 665 NE2d 1330 (Supreme Court, Illinois 1996); Montoya v. Ulibarri, 142 N.M. 89, 163 P3d 476; (Supreme Court, New Mexico 2007); Miller v. Commissioner of Correction, 242 Conn. 745, 700 A2d 1108 (Supreme Court, Conn 1997); State ex rel. Amrine v. Roper, 102 SW 3d 541 (Supreme Court, Missouri 2003). Here, the defendant has set forth numerous facts which I find meet his burden to show his actual innocence.

I find the following facts demonstrate, by clear and convincing evidence, that Fernando Bermudez is actually innocence of the homicide of Raymond Blount.

As discussed infra., in all previous post-conviction proceedings in this case, the District Attorney's Office had always maintained that Efraim Lopez's recantation was not credible.

For the first time before this court, the District Attorney has located and spoken to Luis Munoz, a.k.a. Luis Alonzo. It is now uncontested that Luis Munoz is Wool Lou. Accordingly, it is unquestionable that Mr. Lopez created an entirely false persona for Fernando Bermudez in the eyes of the trial jury. In effect, Mr. Lopez, testified to all of the attributes of Luis Munoz, and ascribed those characteristics to Mr. Bermudez. He lied about the nature of his relationship with Mr. Munoz, minimizing it to the point where Woolu was simply a person he would see and greet. We now know, from both Mr. Lopez, Mr. Munoz and many of their acquaintances, that Mr. Lopez and Mr. Munoz were actually very good friends. [*24]

In the current prosecutor's Investigation Bureau Follow-Up Report, dated March 17, 2007 ( Defendant's Appendix D, Exh. 101), he recounts his face to face meeting with Luis Alonzo, in the presence of Mr. Alonzo's attorney, Brianna Sera, Esq. Mr. Alonzo acknowledged that he was Wool Lou, also known as Luis Munoz. He stated he had started hanging out with Mr. Lopez when he was 16 years old. Mr. Lopez would have been about 11 years of age at this time, and would have known Mr. Munoz for about five years by the time of the homicide.

According to Luis Munoz, he and Efraim Lopez used drugs and broke into cars together. Mr. Munoz stated he got the name "Wool Lou" from the drugs he used. Mr. Munoz contended he moved to Kentucky to live with his cousin, Yvonne Conde, because he wasn't doing well in New York due to his drug use. Mr. Munoz claimed to have been living in Kentucky at the time of the murder. Mr. Munoz told the prosecutor's investigator, Ann Maloney in an October 26, 2007 interview, that he had moved to Kentucky approximately two years prior to the homicide when he was about 18 years of age. ( Defendant's Appendix D, Exh. 95). However, this claim has been directly refuted by proof of Mr. Munoz's conviction in New York County Criminal Court on September 24, 1990 for Attempted Petit Larceny (Defendant's Appendix D, Exh. 96). Thus, his criminal history indicates Mr. Munoz was still residing in New York at 136 West 91st Street, at least ten months prior to the homicide.^[FN7]

Mr. Munoz's assertion that he had moved to Kentucky prior to time of the homicide is further impeached by the affidavit of his own sister, Elizabeth Munoz, who on May 21, 1993, swore that her brother, Luis Munoz, known as Wool Lou, moved out of New York State in the fall of 1991. (Defendant's Appendix A, Exh. 7). When Elizabeth Munoz, a.k.a. Elizabeth Alonzo, was recently interviewed by the District Attorney's investigator, Ariela Fisch, on February 19, 2009, she was more evasive about when Mr. Munoz left New York. She gave contradictory information, stating she believed he was in Kentucky by the time her first child was born on May 13, 1990. However, she also stated she thought Luis moved to Kentucky around September, and that it was at some time prior to the birth of her second child in 1993. I find her original sworn affidavit, given in 1993, is the more reliable statement about when Mr. Munoz left New York.

On February 19, 2009, the District Attorney's Investigator also spoke to Yvonne Conte, Luis Munoz's cousin. Ms. Conte stated she was unsure when Mr. Munoz moved to Kentucky however she believed it was either in 1990 or 1991, about July or around Thanksgiving. ( Defendant's Appendix D, Exh. 97). Ms. Conte began living in Kentucky in 1990. She provided photographs of Luis Munoz taken when he lived with her in Kentucky. One photograph was from Christmas in 1991 and the second, around New Year's in 1992, both photographs dating from around five months after the homicide.

The People, in opposition to this motion, argue that Mr. Lopez made up the "Wool Lou" story in order to protect Mr. Bermudez, the actual shooter. They posit that when Mr. Lopez was confronted with Mr. Bermudez's photograph, he realized the police had found Mr. Bermudez by other means and identified his photo.

The People's continued argument that Mr. Lopez was protecting Mr. Bermudez with his false [*25]testimony that the defendant was Woolu, lacks a logical basis. First, this testimony, although false, did not protect Mr. Bermudez. Instead it resulted in his conviction. Second, eighteen years after this false testimony was given, the People have no evidence that Mr. Lopez had any friendship or prior relationship with Mr. Bermudez, or that he had ever seen Mr. Bermudez before the trial. In fact, Mr. Lopez, apparently caught off guard during cross-examination, stated that prior to that day in court he had never before seen Mr. Bermudez in person. (Trial Tr. 752, lines 5-7). Thus, the People's current contention that Mr. Lopez implicated his close friend, Luis Munoz, to protect a total stranger, is not a cogent argument.

Mr. Lopez was only 16 years of age at the time of Mr. Blount's death. He was picked up by Det. Massanova and taken to the 6th Precinct the morning after the murder. Mr. Lopez, on furlough from a jail sentence, was in violation of the terms of his release. He knew he was in trouble. He was the person who had been involved in the fight which precipitated the events leading to Mr. Blount's death.

Mr. Lopez was questioned by Det. Massanova and other police officers over a period of more than 24 hours before making his videotaped statement. During that time period, on at least two occasions, Mr. Lopez asked to leave. Det. Massanova acknowledged Mr. Lopez was not free to leave and that he had engaged Mr. Lopez in "a continuing conversation". (Trial Tr. 877, lines 7 - 16). Det. Massanova confirmed that Mr. Lopez was sitting in a chair in an office throughout the night, with no visitors, and with an officer always present to watch him. (Trial Tr. 874-875).

I credit Mr. Lopez's testimony from the habeas corpus proceeding that Det. Massanova discussed charging him as an accessory to murder if he didn't give up the shooter. (Habeas Tr. 450). This is supported by Det. Massanova's admission at the CPL 440 hearing that he believed Mr. Lopez was lying during his videotaped statement. To this day Det. Massanova believes Mr. Lopez was more involved in the death of Mr. Blount than he has admitted. (CPL 440 hearing Tr. 756-757).

Det. Massanova had a valid basis for suggesting to Mr. Lopez that he could be charged as an accomplice to Mr. Blount's murder. Mr. Lopez had been punched in the face and knocked to the ground by Mr. Blount. At trial, Mr. Lopez admitted to being drunk and angry and wanting to get even. In his videotaped statement, Mr. Lopez indicated he called his grandmother from the Marc Ballroom after he was assaulted. It appears Mr. Lopez began to describe a second call he made, but abruptly stopped, and returned to discussing the call to his grandmother. However, about a half hour later, Wool Lou appeared at the Marc Ballroom. He was standing alone.

Although at trial Mr. Lopez claimed he hardly knew Woolu, he immediately approached him and pointed Mr. Blount out to Woolu not once, but twice, both inside the club and again outside on the street. Then Woolu shot Mr. Blount. Despite the fact that large numbers of Hispanic youths from Mr. Lopez's neighborhood and from the Chelsea area were about to converge on Mr. Blount's group with broken bottles in hand, Mr. Lopez did not join them. Instead, he pointed Mr. Blount out to the very man who seconds later shot him.

Det. Massanova apparently believed Mr. Lopez knew Wool Lou intended to inflict death or serious physical injury on Mr. Blount to avenge the assault on Mr. Lopez. Intent and knowledge are often shown circumstantially at trial, as they are operations of the mind. Our standard jury charges on intent and knowledge indicate that they may be inferred from the proven facts. Therefore, I do not credit A.D.A. Rodriguez's contention that he could not have charged Mr. Lopez as an accessory to Mr. Blount's murder. Instead, I find the Assistant chose not to charge Mr. Lopez with any crime [*26]to aid in the use of his testimony against the defendant at trial.^[FN8]

Det. Massanova made clear to A.D.A. Rodriguez before Mr. Lopez's release from custody in August of 1991 that he thought Mr. Lopez was more involved in the shooting than he was admitting. Det. Massanova believed Mr. Lopez had not yet told the authorities the full truth. However, the Assistant District Attorney quickly closed the case and never conducted a comprehensive investigation.

Thus, despite Mr. Bermudez's unwavering denial of guilt, his alibi, and the fact that Leonard Macaluso and other alibi witnesses immediately went to the precinct and supported his alibi, no independent investigation of the alibi was ever undertaken.

Similarly, no investigation was ever undertaken to resolve the major inconsistency in Mr. Lopez's statements. It was evident from the outset that Mr. Lopez's naming of the shooter as Lou and Luis, with the street name of "Wool Lou," failed to match Mr. Bermudez. Mr. Bermudez's first name is Fernando and his street name was "Most." Mr. Lopez stated the shooter was always outside his grandmother's building in the park on West 92nd Street and that he would see Lou going into his grandmother's building. Although Mr. Lopez told the police where Lou could be found, no one ever went to look for him.

Instead, Mr. Lopez was allowed to walk out of police custody without any charges against him, and without any charges against his friend Lou. When presented with the opportunity to point to a picture of a man who looked remarkably like Luis Munoz, Mr. Lopez took it. We now know the photograph was not a picture of Wool Lou. However, once Mr. Lopez pointed to Mr. Bermudez's photograph and said that's Wool Lou, the case was, for all intents and purposes, closed.

Mr. Lopez's story that Mr. Bermudez was the shooter had glaring problems from the very beginning. Mr. Bermudez lived over six miles north of Mr. Lopez, at 590 West 204th Street in Inwood. He had no connection to Mr. Lopez or the West 92nd Street or Chelsea areas. Mr. Bermudez's alibi witnesses all lived in his own neighborhood or in the Bronx.

To this day, 18 years later, once the false story that Mr. Bermudez was Woolu is removed from the trial evidence, we are left with the theory that Mr. Lopez approached the defendant, a total stranger, who immediately thereafter shot a man to death in retaliation for a minor altercation which had no connection to him.

The testimony of Wilfredo Maldonado, the person Mr. Lopez claimed had introduced him to Wool Lou, further supports a finding of actual innocence. Mr. Maldonado testified at the CPL 440 hearing. He indicated that he knew Wool Lou's real name was Luis Munoz. He was aware that Efraim Lopez and Luis Munoz had known each other long before 1991, that they knew each other before he ever met them. (CPL 440 Tr. 327 -329). Thus, he confirmed the falsity of Mr. Lopez's testimony that he didn't know the shooter's name.

I also found credible the CPL 440 hearing testimony of Annette Garcia, who lived at 120 West 91st Street in 1991. Ms. Garcia was at the Marc Ballroom on the night of the crime and [*27]recalled seeing both Mr. Lopez and Luis Munoz, whom she knew as Wool Lou. (CPL 440 Tr. 419 - 420, 425).

It is quite clear to this court that suggestive identification procedures occurred which resulted in the four in-court stranger-on-stranger identifications. As previously noted, these improper identifications in and of themselves entitle the defendant to the vacating of his conviction and a new trial. However, they are also an important factor in analyzing his actual innocence claim.

Immediately upon the arrival of all the eyewitnesses at the CATCH unit, a collective description of the shooter was taken by Det. Lentini. The collective description was of a male Hispanic, age 16 to 26, about 5'11" and 165 pounds. This was in and of itself a suggestive procedure. All of the witnesses looked through photographs of persons fitting a description that was verbally elicited immediately prior to the viewing. Which witnesses, and how many of the witnesses, contributed to this joint description is unknown.

While viewing the photographs, the teenage witnesses were not properly supervised. They were able to view and discuss the photograph of Mr. Bermudez which Jaime Velasquez pulled from her drawer. Det. Fitzpatrick admitted the witnesses were chatting amongst themselves in this large room. Unfortunately, by allowing the witnesses to engage in conversation during the viewing procedure, he failed to adequately monitor them, thereby enabling them to confer on the defendant's picture.

After Jaime gave the defendant's photograph to Det. Lentini, the detectives immediately ended the viewing procedure. The other witnesses did not finish looking through their drawers, nor were other drawers of photographs, also fitting the parameters for the description of the shooter, examined by any of the witnesses. Ending the procedure immediately after Jaime made a selection, sent a clear signal that Jaime had found the person they were looking for, the shooter.

Only hours later, after the witnesses were jointly transported back to the police station and placed together in a waiting room, they were shown photo arrays with the defendant's picture in it (except for Jaime Velasquez), once again reinforcing their choice from the CATCH unit. Jaime Velasquez continued to wait with the other witnesses, however, and viewed the photo array for "Shorty." (Trial Tr. 808).

Moreover, Det. Massanova didn't ask the witnesses if they recognized anyone, but instead, instructed them to look at the photos and decide which person was responsible. On cross-examination Det. Massanova attempted to retract this testimony, contending he told the witnesses the person responsible may or may not be in the photo array; the appropriate instruction. (Wade at 93, lines 3-9). I do not find this disclaimer credible.

On direct examination, Det. Massanova testified unambiguously that he instructed all of the witnesses to find the person responsible, making clear he sought to have the witnesses key in on the perpetrator.

A:The key on, in this particular situation the persons who's responsible for the homicide, the perpetrator.

Q:And to the best of your recollection give us a sum and substance of what your instructions were?

A:I want you to look at these six photos here in front of you and to decide which one you think is responsible.(Wade Tr. 53, lines 15-24).

It is now well established that such an instruction is highly improper. This instruction informed the witnesses that the detective believed the shooter's photograph was in the photo array. The instruction was, in effect, a directive to pick one of the six photographs. It was inevitable that at least some of the witnesses would be influenced by this instruction to choose the person in the photo array who most resembled the shooter. In this case, that was Fernando Bermudez.

The next day, the eyewitnesses saw the defendant yet again in a lineup. He and all the participants were seated to minimize physical differences between the defendant and the fillers. The result, however, was that the defendant's significantly greater weight from that of the actual shooter was obscured.

Even if the defendant's picture had been chosen by the four stranger eyewitnesses in a totally non-suggestive setting, it would not defeat his showing of actual innocence. A review of the defendant's photographs and Luis Munoz's photographs show the similarity of the facial features of these two men. Paul (Okpa) Iyesi, Frank Kent, and Michael Thompson testified to fleeting views of the shooter. They repeatedly spoke of glancing at the shooter, looking at the shooter's hand, seeing the t-shirt, or looking at the man with the cane. These quick glances made in a stressful situation were highly susceptible to mistaken identification.

Jaime Velasquez's trial and habeas corpus testimony demonstrate she picked the defendant's photograph because he was cute like the man she saw inside the club. A seventeen year old teenager, she was on the lookout for cute guys. The man she saw in the nightclub was at least 15 feet away from her. She looked at this man and noticed his large gold medallion, while at the same time engaging in conversation with her ex-boyfriend, David Seldich. Mr. Seldich, however, did not identify the defendant at the lineup and was not called as a witness at trial.

The similarity in facial characteristics between Fernando Bermudez and Luis Munoz alone explains Jaime's, as well as the other witnesses, mistaken identifications. The pictures now available of Luis Munoz show both men had faded hair styles, similar eye color, similar nose, ear and facial structure, and similar skin tone.

I find the recantations of the four identification witnesses have been proven to be reliable. Although recantation evidence can be highly questionable in and of itself, here, the recantations have the strong ring of truth. The eyewitnesses were acquaintances of the deceased and would have no motive to help free a stranger if he was responsible for Mr. Blount's death. What motivated their recantations was seeing the photograph of Luis Munoz and realizing they had identified the wrong man.

My finding that the four eyewitnesses recantations are truthful is based, in part, on the portions of their trial testimonies set forth below. This trial testimony demonstrates that neither Mr. Iyesi, Mr. Kent and Mr. Thompson ever got a good look at the shooter. Hence, coercive tactics used [*29]to obtain their cooperation at trial, suggestive identification procedures now known to have taken place, as well as their truthful demeanor while on the witness stand before me, leads me to the conclusion that their recantations are credible and that Mr. Bermudez is actually innocent.

On January 23, 1992, Mr. Iyesi testified that he went to the Marc Ballroom with his friends Michael Thompson and Frank Kent. When they arrived, they met their friend Jaime Velasquez. Other friends from their neighborhood, the Lower East Side, were also at the club. Mr. Iyesi also saw his friend from Queensbridge, Lawrence Darden, known as "Truth." Truth was there with Raymond Blount. Ray pointed out a kid to Mr. Iyesi whom he'd just had a fight with inside the club. When they left the club, Mr. Iyesi saw that kid talking to the man who later shot Mr. Blount.

During his direct trial testimony, Mr. Iyesi indicated that he had seen the shooter while still inside the club, but he had only glanced at him. His testimony demonstrates he never had a good look at the shooter. At the time of the shooting, his focus was on the man that had exited the black Pathfinder who was pointing a cane at him. His description of the shooter was vague, his concentration being on the shooter's hand and not his face.

Q:How long did you look at the guy who eventually shot Ray, when he was in the lounge that night?

The man inside the club had a faded hair style and Mr. Iyesi believed he had seen him before around the clubs. This does not indicate, as the People contend, that he was familiar with the defendant. Rather, it indicates he may have been vaguely familiar with the shooter. Photographs of Mr. Munoz around the time of the homicide demonstrate he had a faded hair style, and a similar facial structure to Mr. Bermudez.

When asked what part of the shooter's body Mr. Iyesi was able to see at the time when Raymond was shot, he testified as follows:

A:I guess it was black. I wasn't looking at the gun. I was just looking at his hand. As I was looking at him, I was looking at the guy with the cane too. I was like, you know - - I can see, out the corner of my eye, his hands and I

When making his in-court identification of Mr. Bermudez, Mr. Iyesi noted that Mr. Bermudez appeared a little bigger than on the night of the crime, a little bulkier in build. (Tr. 157, 158).

On cross-examination, Mr. Iyesi again stated he was not actually looking at the shooter while he was inside the Marc Ballroom. [*30]

Q:At what point did you see the individual that you say was the shooter, in the Marc Ballroom?

A:I - - I wasn't paying attention to him. But I saw him in the area of the kid who got punched in his eye. I wasn't looking at him but you glance and you see who's in the area.(Trial Tr. 181, lines 16 - 21).

Mr. Iyesi was unable to describe the shooter's attire except for a white T-shirt. (Trial Tr. 182, lines 16-18; Tr. 183, lines 5 - 21). Immediately prior to the shooting, he turned from looking at the Jeep and saw somebody coming out of the corner of his eye. (Trial Tr. 195, lines 19 to Tr. 196, line 1). When again asked about the shooter's attire, Mr. Iyesi indicated he was not looking at him like that.

On redirect examination, the prosecutor attempted to rehabilitate Mr. Iyesi's identification testimony. Yet Mr. Iyesi continued to indicate he'd only had the briefest of glances at the shooter. "When the shot was fired I was looking at the person with the cane but you can look this way but you can see people that way". (Tr. 228, lines 5-6).

Q:How did you get - - how did you happen to get the focus in looking to your left at the shooter?

Q:From the time he started jogging, the shooter, the defendant, did you lose sight of him?

Q:Did you ever see his face at any time, from the time you saw him jogging over to the corner where he did the shooting?

A:As he was coming across the street. Right in the intersection, there, the shirt. I glanced over and I looked at the cane." (Trial Tr. 231, lines 4 - 7).

As this testimony makes abundantly clear, Mr. Iyesi never got a good look at the shooter. He glanced at him inside the club. At the time of the shooting, he was focused on another man who was pointing a cane at his face. The parts of the shooter he actually saw were his hand and his white T-shirt.

The Trial Testimony of Frank Kent

Mr. Kent was an 18 year old college student at the time of the murder. Mr. Kent indicated he saw the shooter inside the club prior to the shooting. He noticed him as he was walking around the club, maybe looking at him for a minute. Mr. Kent believed he had seen the same person at a different club two or three weeks prior to the shooting. He indicated he recognized the man from a prior club because he recognized the chain the man was wearing. (Trial Tr. 426, lines 5-16).

He described the man as having hair like him, a mustache, goatee, and a light beard which were all connected. (Trial Tr. 426, line 17 to Tr. 427, lines 19). Mr. Bermudez did not have a goatee.

At the time of the shooting, Mr. Kent was about five to ten feet from the shooter. He admitted to being drunk at the time. (Trial Tr. 504, lines 10 -12). His attention was diverted from the shooter because of the crowd that was surrounding him with broken bottles.

Q:Now, as the person is coming across the street with his hand behind his back, at this point where is Dread?

A:Dread is right here. The person that's coming across the street like this. And at that point my attention is taken away from the person who has his hands behind his back because now the group of people are starting to surround us. So I have to look at both sides.

With regard to the lineup procedure, Mr. Kent indicated at trial that he had been instructed to pick the shooter.

Mr. Thompson testified he saw the shooter inside the club. He had never seen him before that night. He described his attire: a T-shirt with shorts, faded hair with sideburns, with a nice gold medallion. (Trial Tr. 544 -546).

Q:Was he in the lounge? Was he in the ballroom itself? Was he in the hallway leading to the men's room and lady's room? [*32]

At the time of the shooting, he recognized the man he had seen inside because of the chain, although the chain was now tucked inside.

A:I recognized him. He was the guy in the club with the chain. I really knew his face because I remember the chain.(Trial Tr. 571, lines 7 - 11).

On cross-examination, Mr. Thompson indicated he had only glimpsed at the shooter inside the club.

A:I saw him - - I just glanced him. I glanced the chain. I looked at the chain and his face.(Trial Tr. 584, lines 8 - 11).

The Trial Testimony of Jaime Velasquez

Jaime Velasquez was at the Marc Ballroom with her friends that evening. Ms. Velasquez had never seen the shooter before that night. She first saw him in the club's lounge, about 15 to 20 feet away from where she was seated. He was wearing a black and white T-shirt, blue shorts, and a gold medallion with a gold link chain. She stated he had a faded hairstyle and a thin goatee.

Although Ms. Velasquez did not see the actual shooting, she saw the man approaching Mr. Blount, holding a gun behind his back. After the shooting, she indicated the shooter was one of two men who beat up Frank Kent. Mr. Kent was unable to identify the men who beat him. No other witness testified to seeing this assault.

The People claim the eyewitnesses were coerced and threatened or offered benefits to recant. Based upon all of the evidence presented, I find no improper conduct by the defense investigator or Mr. Bermudez's attorneys. I found the testimony of Private Investigator Michael Gaynor highly credible. I believe he acted at all times in a professional manner in his contacts with these witnesses and the other persons he sought information from during the years he remained on the case.^[FN9] Although the defendant's family engaged in emotional outbursts during the trial and at the verdict, [*33]I find no evidence that their behavior contributed to the recantation of any of the witnesses.^[FN10]

Further, I find the recantations are supported by evidence that Mr. Kent and Mr. Thompson felt compelled by the actions of the police and the Assistant District Attorney to identify the defendant as the shooter at trial. A.D.A. Rodriguez conceded under oath during his testimony at the habeas corpus proceeding to making statements to these witnesses prior to their testimony that I find were coercive, even if not intended.

Mr. Kent and Mr. Thompson were arrested on judicially ordered material witness warrants after indicating to the Assistant in telephone conversations that they did not want to testify. Both Mr. Kent and Mr. Thompson were brought by the police to the Assistant's office. There, A.D.A. Rodriguez informed them that if they failed to testify they could be jailed and bail could be set. The alternative course of action, according to A.D.A. Rodriguez, was that they "...could go into court and testify based on what they had told me previously and all the prior contacts I had with them, including my going over the identifications with them...". (Habeas Tr., November 15, 2002, at 54). From the perception of teenage witnesses who had already been in trouble with the law, this "choice" left them feeling they had no recourse but to walk into court and identify Mr. Bermudez as the shooter, no matter what their doubts might have been.

A.D.A. Rodriguez by his own sworn testimony, did not tell Mr. Kent and Mr. Thompson that all they had to do was to go into court and tell the truth about what they had seen and heard. Instead, A.D.A. Rodriguez told them to go into court and testify to what they had previously discussed with him and to make the identifications they had previously made. The message the witnesses took from [*34]this was to go into court and identify Mr. Bermudez as the shooter, or risk going to jail. This rendered their identifications of the defendant compelled and unreliable.

Likewise, Mr. Iyesi felt pressured and threatened by the Assistant District Attorney. Prior to the time the defendant stood up in the courtroom and Mr. Iyesi actually saw how much heavier Mr. Bermudez was than the actual shooter, he believed he had correctly identified the person responsible for Mr. Blount's death. Despite this, he felt that prior to his trial testimony, the Assistant had improperly admonished him regarding his own criminal activities to strong-arm him into testifying against the defendant. (Habeas Tr. 135-136).

Additionally, when Michael Thompson was arrested on the material witness order, his bedroom was searched without a search warrant or probable cause. Det. Massanova admitted in his habeas testimony that the police looked around Mr. Thompson's home and found an imitation gun, possibly from inside a dresser drawer in Mr. Thompson's bedroom. (Habeas Tr. 678). Det. Massanova also indicated he was aware Mr. Thompson had a criminal charge of a robbery or some crime with a gun. Thus, the seizure of the imitation gun, with the implication that it could link him to uncharged crimes, was coercive in nature. Mr. Thompson, a young man who had already been in trouble with the law, found himself being arrested in the early morning hours while his bedroom was searched and an imitation gun seized. He confirmed he feared he would be charged with a crime after the imitation gun was found if he failed to cooperate with the prosecution, no matter what doubts he had. He was arrested and taken to the trial Assistant and told to make the identification or see if the judge would jail him for his lack of cooperation. The resulting testimony was tainted by these actions.

C. The Evidence Pointing to Luis Munoz as the Actual Shooter

All of the credible evidence points to Luis Munoz, who is Wool Lou or Woolu, as the person who shot Mr. Blount.

Luis Munoz's sister, Elizabeth Munoz, also known as Lisa Munoz, in an affidavit dated May 21, 1993 (Defense Appendix A, Exh. "7"), stated that her brother, Luis Munoz, who was known as Wool Lou, had moved out of New York State in the fall of 1991. This is consistent with Mr. Munoz's flight from New York shortly after the late summer murder of Mr. Blount on August 4, 1991. Further, when Investigator Gaynor re-interviewed Lisa Munoz in 2007, she recalled signing this affidavit, and reaffirmed the accuracy of its contents. ( Defense Appendix A, Exh. 3).

Annette Garcia, one of the women from the 92nd Street area who went to the Marc Ballroom on the night of the murder, testified at the CPL 440 hearing that she knew Efraim Lopez and Luis Munoz. She saw both them at the Marc Ballroom that evening. She did not know Fernando Bermudez. (CPL 440 Tr. 419 -420; 437).

Carmen Daniell, who resided at 24 W. 91st Street, and who was also at the Marc Ballroom that evening with Annette Garcia, Celina Carrion and Efraim Lopez, was shown Mr. Bermudez's photograph and indicated she had never seen him before and that he was not at the Marc Ballroom. (Defense Appendix A, Exh. 14). Celina Carrion, in her March 27, 1992 affidavit, when shown the defendant's photograph, also indicated she had never seen Mr. Bermudez in her life. She indicated Mr. Munoz was lying if he said Mr. Bermudez was Wool Lou. (Defense Appendix A, Exh. 15).

Wilfredo Maldonado, the person Mr. Lopez claimed had introduced him to "Woolu", when located by the defense after the trial, stated that Mr. Lopez and Wool Lou were associated before 1989. Mr. Maldonado indicated he was present on August 3, 1991, when the group from 92nd Street [*35]was getting ready to go to the Marc Ballroom. They had guns with them, including a .25 caliber gun. (Defense Appendix A, Exh. 1). The ballistic evidence at trial indicated that a .25 caliber gun had been the murder weapon. Wilfredo Maldonado also testified at both the Habeas Corpus hearing and the CPL 440 hearing. He knew Luis Munoz and knew that his street name was Wool Lou. (Habeas Tr. 525 -526; CPL 440 Tr. 327). Moreover, Mr. Maldonado indicated that Mr. Lopez and Mr. Munoz had known each other for quite some time prior to 1991. (CPL 440 Tr. 328). This was confirmed by Mr. Munoz himself when he indicated he had known Mr. Lopez for five years by the time of the homicide and that they were friends.

Anthony Steward was the friend Mr. Lopez testified went with him to the Marc Ballroom. Mr. Steward did not testify at trial. In an affidavit dated May 10, 1992, Private Investigator Gaynor indicated Mr. Steward admitted Mr. Lopez had told him it was a person mutually known to them who had committed the murder. Mr. Steward knew Wool Lou and indicated he had seen Wool Lou on the night of the crime at the Marc Ballroom. Mr. Steward did not know Fernando Bermudez. Mr. Steward stated the police had never questioned him. (Defense Appendix A, Exh. 30).

Furthermore, Efraim Lopez admitted he had given false testimony at trial in affidavits dating back to 1993. In his habeas corpus testimony, Mr. Lopez stated he picked Mr. Bermudez photograph after being in custody for almost 30 hours, after being denied access to his family, and while being pressured to make a selection. Mr. Lopez choose the defendant's picture to avoid being charged as an accessory to murder (Habeas Tr. 450). Mr. Lopez admitted he grew up with Wool Lou and knew his real name was Luis Munoz. (Habeas Tr. 444, line 9 to 446, line 3; Tr. 449-450). He stated he had lied at trial when he said Mr. Bermudez was the shooter, that he had never seen Mr. Bermudez prior to the trial. (Habeas Tr. 454). These affidavits, in conjunction with Mr. Lopez's habeas hearing testimony, have taken on added credibility now that the People acknowledge that Mr. Lopez did in fact lie when he testified the defendant was Wool Lou.

Despite all of the evidence now pointing to Luis Munoz as the person who shot and killed Mr. Blount, the People contend I should credit Mr. Munoz's denial of guilt. The People state that Mr. Munoz has been cooperative with them since they located him. They state Alonzo was just another family name and attribute no significance to Mr. Munoz's name change to Luis Alonzo after the crime. They maintain he left New York to get away from drugs.

I find the People's discounting of the results of their own investigation into Mr. Munoz's alleged alibi perplexing. The exhibits relating to that investigation demonstrate it to have been thorough and professionally undertaken. This court considers the investigation results to be valid impeachment material of the proffered denial of guilt by Mr. Munoz.

I conclude Luis Munoz's denial of guilt has been substantially impeached by the prosecution's own investigation.Although Mr. Munoz claimed he moved to Kentucky prior to the crime, none of the information he supplied to the People substantiated his claim. He told the prosecution he was employed on the books as a bathroom attendant at a restaurant named The Waterfront. He further indicated he worked at racetrack called The Turfway at the time of the crime.

The People were unable to verify that Mr. Munoz engaged in any employment in Kentucky prior to the date of the murder. The sales/office manager at The Waterfront restaurant indicated there was no record that Mr. Alonzo had been employed by him. When a photograph of Luis Munoz was shown to a man named Dledsoe, who worked at the Waterfront and knew all of the bathroom attendants who had worked there in 1991, he indicated that he was sure Luis Alonzo, a.k.a. Luis [*36]Munoz, had never worked at the restaurant.

With regard to Mr. Munoz's claim to have worked at Turfway Park at the time of the crime, it was learned that in order to work at the racetrack, Mr. Munoz, a.k.a. Mr. Alonzo, would need to have been licensed by the State of Kentucky. A license can be obtained in a single day. The first license the investigation disclosed, indicated Mr. Luis Alonzo obtained a license to work as a stable hand on October 2, 1991, two months after the homicide. (Defendant's Appendix C, Exh. 73).

The People also failed to verify Mr. Alonzo's claim that he resided with his cousin, Yvonne Conte and her family in Kentucky beginning sometime in 1990. The owner of the rental property where the Conte's lived, Margot Cahill, recalled that Ms. Yvonne Conte moved there sometime in 1990, however, she could not recall how long thereafter the young male fitting Mr. Alonzo's description moved into the Conte's basement. She remembered the Conte family had been under investigation for drug activity by the police.

Mrs. Cahill's son, Stephen Cahill, who worked at an auto parts garage on the property, recalled a male Hispanic approximately 20 years old living in the basement in the early 1990's, however, he could not confirm that he was there as far back as 1991. Mr. Cahill stated that the Conte family disappeared in the middle of the night with only a handful of their belongings. Their last rent check bounced. He recalled that the family had received an exorbitant amount of U.P.S. deliveries while they resided there. Although Mr. Munoz claimed to have left New York to get away from drugs, it appears his cousin was involved in the drug trade, and was not the refuge from crime that Mr. Munoz contended.

The People repeatedly indicate that Mr. Munoz was very cooperative and denied being in New York or having anything to do with Mr. Blount's murder. However, although Mr. Munoz has now moved back to New York, the People did not call him as a witness at this hearing. Although the initial burden of proof lies with the defendant, the People called a number of witnesses in opposition to defendant's motion. Mr. Munoz was conspicuously absent. If, as the People contend, Mr. Munoz had nothing to do with Mr. Blount's murder, why did he not appear and testify with regard to where he was at the time of the crime. Further, to explain when he moved to Kentucky, why he left New York, why he changed his name, and what his relationship was to Efraim Lopez. The People state Mr. Munoz spoke to them without invoking his right to counsel. However, when he met with the Assistant District Attorney, his counsel was present.

The People seek to testify for Mr. Munoz in their post-hearing submission, telling this court that Mr. Munoz is not a drug dealer. Clearly, there is substantial evidence to the contrary. The People rely on the fact that Mr. Munoz's convictions are not drug related. However, Mr. Lopez has never varied in his testimony that Wool Lou, who we know is Mr. Munoz, sold drugs for years in the park at West 92nd Street.

The People state that Mr. Munoz's cousin, Yvonee Conde, who also did not testify at this hearing, worked at the Waterfront restaurant and confirmed Mr. Munoz worked there at the time of the murder. However, Mr. Munoz's cousin, alleged to have fled in the middle of the night during a drug raid on her home, is hardly a credible source to confirm Mr. Munoz's employment or place of residence at the time of the homicide.

The People also argue that Mr. Bermudez and Mr. Munoz do not look alike. They go so far as to describe how Mr. Munoz's mustache is smaller and thinner than Mr. Bermudez's mustache. (People's Post Hearing Memorandum at 73). To dissect any individual's features in the manner the [*37]prosecution seeks to do, would result in no two people, absent identical twins, ever looking alike. Clearly, these two men have substantially similar appearances.

The People also fail to address Mr. Munoz's motive to commit the crime, while Mr. Bermudez had none. The People still maintain, 18 years after this crime, that Mr. Lopez named Wool Lou because he was protecting Mr. Bermudez. Yet, they remain unable to show any relationship between Mr. Lopez and Mr. Bermudez.

There has never been any forensic evidence to link the defendant to this crime, no blood, no fingerprints, not even a sighting of his car. The People never obtained a search warrant for the defendant's home. Despite the prosecutor's gratuitous statement in his trial summation that the defendant got rid of the gun (Trial Tr. 1619), there was never a shred of evidence to support this claim. The prosecution made no effort to search the defendant's apartment for a gun, for the clothes the shooter was alleged to have worn, or for the gold Gucci link chain the shooter was wearing.

The People make much of the fact that Mr. Bermudez owned a gold chain, however, this was never disputed. Many young men own gold chains. The defendant and his friends testified his chain was a thin "Figaro" chain, not the type of chain described to have been worn by the shooter, a thick "Gucci" link chain. Further, the defendant and his alibi witnesses consistently described the clothing Mr. Bermudez was wearing on the night of the crime and that clothing did not match the clothing worn by the shooter. The defendant and his alibi witnesses testified the defendant was wearing blue jean pants that night. All of the eyewitnesses to the crime testified the shooter had been wearing shorts.

Mr. Boyce, Mr. Hall, and Mr. Darden, the deceased's best friends, have consistently, since the time of the crime, insisted the defendant was not the shooter. They were all standing right by Mr. Blount when he was shot. They candidly admitted that the stress they experienced at the time of the crime, and their focus on the shooter's gun, or attention directed elsewhere, interfered with their ability to identify the face of the shooter, and yet, they always knew the defendant was not the killer. They knew the defendant's body type was wrong, he was far too heavy to have been the shooter. They knew that the shooter had been a thin man. Thus, despite the death of their good friend, they testified in support of the defense.

I find the defendant's trial testimony and his alibi convincing. His numerous alibi witnesses were steadfast in their testimony that they were never in the Marc Ballroom and were nowhere near 13th Street and University Place at the time of the crime.

The People never produced any independent evidence that the defendant's alibi was false, despite its complexity. Only minor inconsistencies that would be expected amongst multiple alibi witnesses were ever revealed. The defendant's alibi involved a long sequence of events: going to a garage to pick up the defendant's newly repaired BMW automobile, driving by numerous clubs, going out to eat and stopping for snacks, taking a sick friend home, going to the Bronx, going back out, and getting a flat tire when a tire rim was damaged going over a pothole. If the defendant and his friends were going to create a false alibi, they could have constructed a much simpler one. Instead, Fernando Bermudez, Leonard Macaluso, Nelson Aquavias, Adelso Swarez and Euclides Santana all testified credibly that they were with the defendant in Inwood at or around the time the murder was committed. [*38]

The People have now abandoned their trial theory. This alone warrants a new trial. However, the People argue despite Mr. Lopez's false testimony and the recantation of all of the eyewitnesses, minor coincidences, such as the fact that the defendant ate at a restaurant five blocks away from the location of the crime an hour before the murder, should defeat his claim of innocence. The minor coincidences cited, cannot withstand a full and fair review of the evidence and the reasonable inferences that flow from that evidence.

I find the seeds for a wrongful conviction began as a result of a series of careless and suggestive identification procedures. Mr. Bermudez was identified by four young eyewitnesses who sat together and discussed his photograph. These witnesses, despite the death of an acquaintance or friend, were still youngsters, and failed to follow the rules. Jaime Velasquez saw a picture of a cute guy. Mr. Iyesi, Mr. Kent and Mr. Thompson also looked at the photograph. Together, they all decided the defendant resembled the shooter. Before long, he became the shooter.

The dangers of improperly conducted identification procedures were discussed by Jennifer Dysart, Ph.D., an expert in the field of eyewitness memory and identification, who testified at the CPL 440 hearing. She explained the phenomena of co-witness contamination and unconscious transference when joint identifications occur. The witnesses reinforce each others choices, strengthening their belief they have made the right selection. Dr. Dysart discussed studies which demonstrated that mistaken eyewitness identifications are not limited to stranger-on-stranger identifications, but also occur in acquaintance identifications. In other words, believing you have seen an individual briefly on a prior occasion is no guarantee that a misidentification will not occur.

The witnesses' incorrect selection at the CATCH unit was reinforced by the selection of defendant's photograph in the photo array procedure only hours later. Unaware of the irregularities at the CATCH unit, Det. Massanova compounded that suggestiveness by a suggestive instruction which indicated to the witnesses that the shooter was in the array.

Despite this, during Mr. Lopez's videotaped statement, when he stated the shooter was named Lou, Det. Massanova knew Mr. Lopez was hiding something. First, Mr. Lopez had claimed not to know the shooter. Then he claimed he only knew the shooter's nickname, Wool Lou. Next, he admitted he knew where the shooter could be found, in a playground on West 92nd Street. Finally, during the videotape he gave up the shooter's name, Lou or Luis.

Mr. Lopez told the police and prosecutor about Lou, but minimized his actual relationship with Lou, to avoid being charged as an accessory to murder. We now know, not only from Mr. Lopez's recantation and habeas testimony, but also from others from the West 92nd Street neighborhood, that Mr. Lopez and Mr. Munoz were good friends. According to Mr. Munoz himself, he was friends with Mr. Lopez for five years. Mr. Munoz told the District Attorney's investigators that he and Efraim Lopez did drugs together and broke into cars together, far more than having Mr. Lopez yelling "What's up?" to Mr. Munoz from 15 to 25 feet away.

Mr. Lopez was starting to reveal more of the truth as time wore on and he remained in continuous police custody. He gave up his friend Lou. He told the police where to find Lou. But then he was unexpectedly provided with a way out. He was instructed to pick the shooter from a photo array that did not contain a picture of his good friend Lou. Instead the array contained a picture of a man who looked a great deal like Lou. He pointed to the photograph of that man. That man was Fernando Bermudez. This turned out to be his get out of jail free card.

Shortly before trial, Mr. Lopez was brought to the District Attorney's office from prison. He [*39]was informed he had been assigned a lawyer, and not long thereafter he signed a cooperation agreement. He knew what he needed to say at trial to avoid prosecution for his involvement in Mr. Blount's murder. At trial he falsely testified Mr. Bermudez was Woolu.

I find no credible evidence connects Fernando Bermudez to the homicide of Mr. Blount. All of the People's trial evidence has been discredited: the false testimony of Efraim Lopez and the recanted identifications of strangers. No other evidence supports a finding that Mr. Bermudez committed this crime.

I find, by clear and convincing evidence, that Fernando Bermudez has demonstrated he is innocent of this crime.

Accordingly, the judgment of conviction is vacated, and the indictment is dismissed.

Defendant's motion to vacate his conviction upon the ground of newly discovered evidence, pursuant to CPL 440.10(1)(g), is granted. Further, defendant's motion to vacate his conviction upon the ground that material evidence adduced at the trial was false, or should have been known by the prosecutor to be false, is granted. CPL 440.10(1)( c). Defendant's motion to vacate his conviction based upon the ground that unduly suggestive identification procedures took place which violated defendant's rights under the constitution of this state and the federal constitution is granted. CPL 440.10(1)(h). Pursuant to CPL 440.10(1)(c)(g) & (h), a new trial is the appropriate remedy. However, I find by clear and convincing evidence, that the defendant has demonstrated his actual innocence. Accordingly, defendant's motion to vacate his conviction is granted and the indictment is dismissed with prejudice. The record will be sealed thirty days from the date of the issuance of this decision.