SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS: CRIMINAL TERM PART 1C-G-------------------------------------------------------------------------X DECISION & ORDERTHE PEOPLE OF THE STATE OF NEW YORK

INDICTMENT NO:-against- 439/1988

LOUIS HOLMES, a.k.a. SHABAKA SHAKUR, Defendant.------------------------------------------------------------------------XDESMOND A. GREEN, J.S.C.

Assistant District Attorneys Morgan Dennehy, Howard Jackson, and Jessica Wilson for the People

Leah Busby, Esq., Ronald L. Kuby., and Danielle Von Lehman, Esq., for the Defendant

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A CPL 440 hearing in this matter was granted pursuant to this court’s decisionand order rendered on June 19, 2013. The hearing was commenced before me on July1, 2014 and concluded on December 4, 2014.1

Defendant’s CPL 440 motion is based on his claims of ineffective assistance ofcounsel, newly discovered evidence and actual innocence.

Defendant’s motion based on newly discovered evidence and ineffectiveassistance of counsel is Granted.

With respect to defendant’s claim of actual innocence, defendant has failed toprove a prima facie case by clear and convincing evidence and that branch of

1 People v Michael Jones, 115 AD 3d 984 (App Div 2nd Dept 2014) Hearing dates in thismatter, with transcripts generated accordingly, are as follows: July 1 to July 3, 2014; July 7,2014, July 9 to July 10, 2014; August 5, 2014; December 4, 2014. Oral argument was heardthereafter and post hearing submissions was received by the court in February 2015.

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defendant’s motion is Denied.

Regarding defendant’s claim of newly discovered evidence, there is sufficientbasis to find that the evidence, proffered by defendant as it relates to former DetectiveLouis Scarcella, is “newly discovered”.

Since defendant’s sentencing in 1988, he has appealed and f iled three prior CPL440 motions. 2

Defendant was convicted after a relatively short trial on February 15, 1989 3 andsentenced on March 9, 1989 to two consecutive terms of 20 years to life on the chargeof Murder in the 2nd Degree for the dual homicide of Fitzgerald Clarke and StevenHewitt. (Goldstein, J., at trial and sentence.) Defendant has been incarcerated for over26 years and is currently serving his second life term.

According to the trial record, the incident resulting in the death of Hewitt andClarke, occurred on January 11, 1988 over a disagreement about a car. At trial, jurorsheard the testimony of Harley Young, an eyewitness to the murder who said that thedefendant was the killer.

Jurors also heard the testimony of Detective Louis Scarcella 4 who claimed tohave taken a statement from defendant that implicated defendant in the murders.

The court had an opportunity to assess the demeanor and credibility of thewitnesses who testified. In order of appearance, they are: Lisa White, Lanette Holmes,Edda “Vivian” Rivera, the defendant, Louis Holmes a.k.a. Shabaka Shakur, formerDetective Phillip Mahony, Carmelo Sanchez 5, Jorge Nicholls and former DetectiveLouis Scarcella.

2 See, People’s response dated October 17, 2012 for outline of defendant’s post-conviction procedural motion history. Defendant’s judgment of conviction was affirmed onappeal, People v Holmes, 188 AD 2d 618 (2nd Dept 1992), leave denied, 81 NY 2d 887 (1993)

3 Defendant’s trial took about three days, February 8, 9, 14 and 15, 1989. Jurors startedtheir deliberation at about 1pm on the afternoon of February 14, 1989. At 5:35pm they had notreached a verdict and thus was given dinner and then sequestered in a hotel to resumedeliberations. At 2:25pm on February 15, 1989, the jury verdict to convict was announced.

4 At defendant’s trial, jurors requested a read back of Detective Scarcella’s testimonyregarding what the defendant told him. The portion of the statement, “I just got out” was redactedas ruled by the court. (Trial Transcript dated February 15, 1989 P 454-456)

5 Both Mr. Mahony and Mr. Sanchez were called by the prosecution to testify at thishearing.

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Defendant’s underlying attorney Abraham Nathanson is now deceased. Thealleged eyewitness who testified at defendant’s trial, Harley Young, said to be thebrother of Fitzgerald Clarke, is also deceased.

Inconsistencies abound, as defendant points out in the trial record, but also inthe record of this hearing. Certain witnesses were found to be more credible thanothers. Lanette Holmes and Lisa White were found to be credible.

As this court stated previously, such inconsistencies do not make out a clear andconvincing presentation supporting defendant’s assertions of actual innocence.However, it does not defeat defendant’s claim of ineffective assistance of counsel.

Summary of Facts

Lanette Holmes and Lisa White Alibi Testimony

Defendant provided three alibi witnesses to the court, that of Edda Vivian Rivera,Lanette (formerly Jones) Holmes and Lisa White.

Two of the witnesses, a former girlfriend (now his wife) and a friend, placeddefendant in their presence on the date and time of the incident occurring January 11,1988.

Both, Mrs. Holmes and Ms. White, now in their late-forties, were known to thepolice and defense attorney at the time of the incident. The police questioned bothwithin days of the incident and both told the police that the defendant was with one orthe other at the time of the incident.

Lanette and Lisa were best friends since the age of 13 and in their late teens atthe time of this incident. Both went to high school together, lived within a 15 minute walkof each other in a Queens neighborhood and both consistently spent time together.While, Lanette had completed high school and was working in her neighborhood as acashier at Woolworth’s, Lisa was starting community college, later obtaining herassociate’s degree and registered nursing license.

At the time of this incident on January 11, 1988, Lanette had known thedefendant for about a year and was dating him for six months. He would visit her atLisa’s house since Lanette spent a lot of time there. Defendant also worked at a SocialSecurity building near where Lanette worked at the Woolworth’s. Lisa only knew thedefendant as a “cool guy” through her association with Lanette.

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Lisa knew nothing else about the defendant.6

At the time of the hearing, Lisa had not spoken to Lanette in twenty years. Afterthe defendant was arrested, they “remained friends for a good couple of years and thenwe grew apart as we got older.” Currently, the two do not have a relationship. 7

Lisa wrote a letter in October 2009 as a result of another friend, Denise Revels,who had been contacted by the defendant to reach out to her because the defendant“was trying to get an appeal and needed an af fidavit.” 8 Lisa wrote the letter herself andhad it notarized without any pressure from anyone. She does not recall talking to thedefendant by phone since his arrest and she did not visit him in prison. 9

On January 11, 1988, both Lisa and Lanette, in separate testimony rememberedthat they were with each other during the day at Lisa’s house. Lanette left from Lisa’shouse to go to work.

They each testified that later that evening, the defendant was at Lisa’s housewaiting for Lanette. Lisa testified in conjunction with the police report of her interviewdated January 12, 1988, that the defendant had come to her house about 9 pm or 9:30pm and was there until 11pm when he left to visit his girlfriend, Lanette. 10

After a period of time, “a couple of hours” waiting for Lanette to come back toLisa’s house; whether Lisa called Lanette or Lanette called Lisa and also spoke to thedefendant, Lanette told the defendant to come over to her house. It was a 15 to 20minute walk there. Lanette testified that the defendant arrived at her house at 11pmthat night and did not leave until the next morning.

Here, almost 30 years later, Lisa remembers the defendant leaving her house at11 pm and Lanette remembers the defendant arriving at her house at 11pm.

It is undisputed that Lisa remembers the defendant arriving at her housebetween 9 pm and 9:30 pm.

The police received a radio run at 10:15 pm reporting that two males were shot

6 Transcript dated July 1, 2014 of Lisa White Hearing testimony, P 38-39.

7 Id P 22

8 Id P41

9 Id P 21

10 Id P 18

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at Gates and Irving Avenue in Brooklyn.11

Police reports indicate the death of the victims at approximately 10:15 pm, tied tothe series of 911 calls which were received at that time. 12

According to his certificate of death, Fitzgerald Clarke died at the scene, thespace for time of death is indicated as unknown. The death certificate of Steven Hewittreports that he died at Wyckoff Heights Hospital in Brooklyn at 11:22 pm.

The only alibi notice that was served was for Lanette. Defendant’s trial attorneytold Lanette that he would call her to testify. As such, during the course of the trial, shewas not permitted to enter the courtroom for the proceedings. However, towards theend of the trial, defendant’s attorney told her “. . .they didn’t have anything on him [thedefendant] and everything was ok. He [the attorney] don’t need any witnesses or alibisor anything.” Had she been called to testify, Ms. Holmes stated that she would havedone so. 13 Ms. Holmes spoke to Mr. Nathanson on several occasions by phone, andrelayed the information that defendant had been at her house, “I remember him kind ofblowing me off a lot [,] really.” 14

Lanette had submitted two affidavits, one in 2005 and one in 2010. Her af fidavitdated January 22, 2010 indicates that she went to defendant’s lawyer’s office and toldhim that she wanted to testify. And, in her hearing testimony, she recalled doing that.15

Despite being known to both police and defense attorney, no alibi notice wasserved for Lisa White.

Lisa, now, a registered nurse, testified at the hearing that she initially did notwant to have anything to do with cooperating because her “very strict” mother instructedher not to get involved. She stated, “My mother forbade me to get caught up in anyissues, so she said leave that alone. It’s not your business.” 16 However, she said that

11 Police Report follow-up #5 (DD5 561/562) dated January 12, 1988 signed byDetective Louis Scarcella

12 Police Sprints dated January 11, 1988 records two calls at 2215, two calls at 2216, onecall at 2223, one call at 2221.

13 Transcript dated July 1, 2014 of Lanette Holmes’ Hearing testimony P 57

14 Id P 85- 88

15 Id P 89-90

16 Transcript dated July 1, 2014 of Lisa White Hearing testimony, P 19.

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her mother raised her that “right is right” and that if an attorney had contacted herto testify, she would have testified for the defendant. 17 Lisa also stated that she regretsnot coming forward at the time of the incident. 18

Neither Lanette Holmes or Lisa White has ever been convicted of a crime. Bothare licensed and certified for the jobs they currently hold; Lanette, as a home attendant19 and Lisa, as a registered nurse.

E.Vivian Rivera’s Testimony

At the time of this incident on January 11, 1988, Ms. Rivera was approximately28 years old, a 5th grade dropout, addicted to drugs and lived with her sister in thevicinity of the crime, at 1493 Gates Avenue in Brooklyn. At 54 years old she isunemployed and currently lives in Bushwick, Brooklyn.

Vivian knew both of the victims by their nicknames, “Cee” and “Tony” 20, having datedboth of them. She dated “Tony” for about two to three weeks and previously dated“Cee” for about two months before he went to jail because of a shootout in a clubwhereupon he got caught with a gun. 21 Admitting that she was a crack cocaine user in1988, Vivian also told the court that she had criminal convictions 20 years ago for drugswhich she purchased from the building next door to where she lived.22

Vivian also knew the defendant by the nickname “Sha”. She’d known him forabout three months at the time because he was dating her niece, Eileen Garcia. 23

Eileen, who lived with Vivian was known by the nickname, “Lilly”. Vivian saw Sha, Ceeand Tony together, knew them to be “very close”, because Cee told her that they allgrew up together, and she saw the three of them in the next door building 1493 GatesAvenue in Brooklyn where they sold drugs. 24 A lot of her family lived or hung out there,

17 Id P 36 - 38 and P 19

18 Id P 20

19 Transcript dated July 1, 2014 of Lanette Holmes’ Hearing testimony, P 91.

20 “Cee” is Fitzgerald Clarke and “Tony” is Steven Hewitt

21 Transcript dated July 1, 2014 of E. Vivian Rivera, P 94.

22 Id P 95

23 Id P 96

24 Transcript dated July 1, 2014 of E. Vivian Rivera, P 97.

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including her drug addled brother Elvis “Papo” Rivera and she still visits the area wheresome of her family still lives.25 Through exhibits presented by the defense, Vivianpointed out where the buildings were and where the drug spot was, in addition to vacantlots and the location of the scene of the incident.26

Vivian testified that she went to Gates Avenue in Brooklyn, where the crimeoccurred, about 5:00 pm or 6:00 pm. She didn’t see anyone outside, “so I decided to goin the building and cop” “. ..I seen Cee...kept walking and went downstairs.” 27

“At some point” on January 11, 1988, Vivian testified that she heard gunshots.Prior to hearing gunshots, she was upstairs in the building talking back and forth withCee and Tony. Tony gave her $40 after she asked for money. “He [Tony] left out thebuilding”, after Cee apparently called him from downstairs. She “went towards thebasement to finish doing what I was going to do. [To ‘cop’ drugs]” 28 Vivian said she wasinside the building about 25 to 30 minutes and it was getting dark outside.29 After she“copped”, she said she heard the shots and indicated four “pops” or gunshots heard. 30

Vivian stated that she was the first one to run out of the building and that “youcould see Tony on the floor...right in the middle of the street.” Then, her brother calledand pointed out where Cee was laying in the lot. From the time she entered thebuilding, got the money and copped the drugs, until the time she heard the shots,Vivian testified that “five or ten minutes” had elapsed.31

She said that she was “crying hysterical” and there was a guy next to her cryingand she asked why the guy was crying and was told that it was “Cee’s” brother [HarleyYoung]. Vivian stated that she didn’t know ‘Cee” had a brother and “he never used to bethere.” 32

Vivian did not currently know “Cee’s” brother’s name and she did not remember

25 Id P 98-100

26 Id P 101-106

27 Id P 107

28 Id P 108-109

29 Id P 110

30 Id P 111

31 Id P 112

32 Id P 113-115

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whether she saw “Sha” earlier that day or the day before. That was the first time sherecalled seeing “Cee’s” brother. At that point, Vivian testified that she had not taken anydrugs yet. After the trial, she found out that “Cee’s” brother said “Sha” was the shooter.She knew that they had enemies because of the drug business and they “used to talk tome about the shootouts that they used to have.” She did not talk with the defendant’sattorney and did not know when the trial started but would have come forward. “...whenI found out that his brother said that he saw him [defendant] and I knew his [“Cee’s”]brother was inside with me. He lied. He was lying. He walked out the building with me.All the guys walked out the building with me. There was no one in the front. There wasnobody next to Tony when we walked out that building.” 33

Vivian admits that she cannot read and that the af fidavits she was contacted toprovide were prepared by others and read to her. One police statement and twoaffidavits contained errors. She stands by the affidavit she signed in 2013 that was readto her previously and at the hearing. Vivian consistently and emphatically stated that“Cee’s” brother Harley Young could not have witnessed the shooting because he cameout of the building with her after all the shots were over. She found out aboutdefendant’s arrest through her niece and told “my niece that’s a lie because he wasinside the building with me.” 34

Later, in response to a question about the time line, of the incident, Viviantestified that she entered the building on Gates Avenue about a half hour prior tohearing the shootings.

On cross, the People probed her prior convictions and time she served in jail, allof which Vivian admitted to.

Vivian did not believe that she was impaired by drugs on January 11, 1988, didnot recall speaking to detectives several hours after the murders and did not see HarleyYoung speaking to police at the scene after the murders.

She was insistent that Harley Young did not witness the murders, because heexited the building with her.

33 Id P 116-119

34 Transcript dated July 2, 2014 of E. Vivian Rivera Hearing Testimony P 125- 147; P148and 2013 Affidavit, Exhibit L, P 149-153

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Defendant’s Testimony July 2 - 3, 2014

Defendant testified at the hearing that at the time of the underlying action he was22 years old, and on felony probation. He was involved in the illegal drug tradebusiness with the now deceased Hewitt and Clarke and he possessed and carriedunlicensed guns. He lived in Brooklyn, attended Brooklyn Technical High School andworked at the Queens County Registrar Department doing data processing concerningmortgages and deeds. (P 207-209)

After his conviction by trial, when he was sentenced on March 9, 1989 toconsecutive terms of 20 years to life, defendant spoke to the court maintaining that hewas innocent and did not shoot Clarke and Hewitt. 35

At the time of his incarceration, the Inmate Overview Report dated from March14, 1989 from the New York State Department of Corrections 36 shows that defendantrequested participation in an academic program, a vocational program and a workprogram. Since his incarceration, the report also shows defendant, at various times, hasbeen an assistant in the facility’s law library and in 2013 completed a two year collegedegree program.

Defendant knew both victims, having attended high school with Steven Hewitt(Tony) starting in 1978 and he met Fitzgerald Clarke (Cee), later, during his freshmanyear, through his friendship with Hewitt. By January 11, 1988, defendant had knownthem both for about nine to ten years. They all were friends who hung out together anddated girls together (P 219-220)

Defendant also met Harley Young, “Cee’s” brother, but had only met him aboutfour or five months prior to January 11, 1988. Young was older, in his thirties, had livedin Florida and defendant didn’t really know him. Defendant knew “Cee’s” other familymembers having “been around them a lot”. The victims and defendant were all involvedin selling drugs. Defendant testified that when he came home from prison in 1987 hedid not have any money, looked for a job, but didn’t have a job and got involved inselling drugs with someone else. He stated he went broke because he didn’t know whathe was doing. (P 221)

According to defendant’s testimony, when Steve Hewitt found out “he came tome, he said, I’ll pay you a thousand dollars a week to pick up drugs and drop it off atthe spot, pick up money and bring it back to the house and that’s it. You don’t got to donothing else. So I took it.” By January 1988 defendant had stopped selling drugs and

35 Sentencing Transcript March 9, 1989 P 7.

36 Also known as a “probation report”, the certified document (certification page datedJuly 9, 2014) was submitted into evidence at this hearing as People’s Exhibit 3.

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was working at the Queens County Registrar’s Department. He stated he did not wantto go back to jail. He had a youthful offender for armed robbery in 1982 for which hereceived five years probation and an attempted robbery conviction in 1984 for which hereceived a prison sentence of one and a half to four and a half (1 ½ to 4 ½ ) years.Defendant testified that he pled guilty to both charges because he was guilty of thecrimes. (P 222-223)

Harley Young also sold drugs and defendant, along with Steve and “Cee”, wouldgo to Florida by arrangement of Young to pick up drugs to bring back to New York. InJanuary 1988, Young was involved with Steve and “Cee” supervising the drug spot at1495 Gates Avenue. (P 223)

Defendant testified that he would spend a lot of time on Gates Avenue becausehe had a girlfriend who lived in the building next door. Defendant described the layoutof the area, the landmarks, the streets and identified the location of 1495 Gates Avenuefrom the map presented at the hearing. His girlfriend, Eileen “Lily” Garcia’s apartmentwas at 1493 Gates Avenue. (P 224-226)

Defendant stated that he knew everyone on the block because at one point hehad taken over supervising the drug spot for Steven and “Cee”. On January 11, 1988,defendant went to Gates Avenue with Steven Hewitt between 6:00 pm and 6:30 pm.Defendant was going to 1493 Gates Avenue to see his girlfriend, “Lily” and Hewitt wasgoing to the drug spot at 1495 Gates Avenue (P 230-231)

While on Gates Avenue with Steve, defendant testified that he was continuing aconversation started about three weeks earlier regarding his car that Steve wanted tobuy, but no arrangement had been agreed upon. (P 233)

At the time, Steve said he was going to buy the car and get money from the drugspot to pay for it and defendant left to go home to get the car’s title. Before defendantleft, Harley and “Cee” came. “Cee” wanted to know about the car deal and gave hisopinion that he thought the asking price was too much. (P 234)

As friends, defendant had more of an easy relationship with Steve in that theyrarely argued and his relationship with “Cee” was contrarian or competitive in nature.They were partners “...it was never any animosity between us or any violence.”Defendant said he didn’t pay any mind to “Cee” because Steve said he was going togive him the money for the car, so he took a taxi, about 15 minutes, to get to his housein order to get the title. (P 235)

Defendant returned with the title and found out that “Cee” had convinced Stevethat he was asking too much for the car. Defendant stated that the argument really wasnot about the car, but that it was because they were planning a trip to Florida to pick updrugs and they wanted the defendant to go, but the defendant did not want to gobecause of “a bunch of stuff happened the last time we went to go down there and I

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didn’t want to get jammed up.” “...I was no longer selling drugs, but they still wanted meto help them out with certain things. And I really didn’t want to get involved in that.” (P236)

Defendant gave Steve the title. There wasn’t enough money at the spot andSteve was to give defendant the money for the car at the end of the week or weekendwhen more money was made at the spot. Defendant stated he would turn over the carthen. Harley Young was there but he took no part in the argument about the car. (P237)

Steve insisted that he and defendant had a deal saying, “yeah, don’t worry aboutit” and defendant went inside 1493 Gates Avenue at about 7:00 pm to his girlfriend,“Lilly’s” house. (P 238)

Defendant testified that as he sat on the couch in “Lilly’s” house he realized hehad a gun in his coat pocket. “Lilly’s” mother had told him not to bring guns into thehouse. He went to his coat pocket that he’d hung up when he came in, took out thegun, took the clip out of it, checked the chamber to make sure it was not loaded, put thegun back in his coat pocket with the clip in his pants pocket and sat back on the couch.He ate and laid down. In scooting over for “Lilly” to sit, the clip fell out of his pantspocket. “Lily” went “ballistic” because defendant had a gun in her house. Defendantwent out to put the 9 millimeter gun in his car and decided to take off. He testified thathe never had a .38 on him that day, January 11, 1988. Rather than drive far becausethere was exposed electrical wires on the car, defendant drove around the block andparked the car near “Lilly’s” house, got out and walked to the train station. (P 239-240)

Defendant testified that he took the train and went to South side, Jamaica,Queens, to see Lanette, leaving Gates Avenue around 8:20 pm to 8:30 pm. Lanettewasn’t home and folks 37 at her house told him that she was at Lisa’s house. Defendantwalked fifteen minutes to Lisa’s house. Defendant had known Lanette for about a yearat the time of the incident after meeting her on Jamaica Avenue in Queens in front ofthe Woolworth store where she worked. Defendant started out as good friends withLanette and knew Lisa through his friendship with Lanette. “Lisa’s house was quieter,so we wold go over there to hang out.” (P 241-243)

Defendant arrived at Lisa’s house a little after 9:00 pm. Lanette was not thereand Lisa said “she’s supposed to be coming over” and to wait. After a while defendantspoke to Lanette when she called to tell Lisa that she wasn’t coming over and for him tocome to her house. Defendant recalled the conversation taking place between 10:00pm and 10:30 pm, then hanging out with Lisa another ten minutes or so and takingabout fifteen to twenty minutes to walk over to Lanette’s house arriving there close to

37 Testimony showed that Lanette’s house was very busy with family and friends and asocial network ensued where folks had a good time talking and playing cards.

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11:00 pm. (P 244-245)

He hung out with Lanette and her family “for a minute and then snuck into herroom in the back.” Defendant left from Lanette’s house the next morning to go to workabout 8:30 am in order to get to work at 9:00 am. He found out that Steven Hewitt andFitzgerald Clarke had been killed when he got arrested. (P. 246)

Defendant was arrested at work on January 12, 1988 at around lunch time. Hestated he did not know why he was being arrested but thought it had to do with hisspending the night at Lanette’s house because he was on parole. (P 247)

Though he did not have an imposed curfew, defendant said that his paroleofficer had cautioned him not to spend nights away from his home. At arrest, defendantwas taken to the 83rd Precinct and was put in the bullpens until that evening. Defendantwas interviewed by Detective Philip Mahony who took his statement. “I told him that Iwas in Queens at the time last night.” Defendant said that Detective Mahony explainedwhat happened in Brooklyn and told him that people said I was in Brooklyn. Defendantsaid he told him that he was in Brooklyn earlier that evening then went to Queenswhere he stayed the night and went to work in the morning. (P 248)

Defendant stated that he did not lie. His statements were not conflicting. Both ofhis statements were true. He was in Brooklyn and later that night he was in Queens. Headded that he was not going to lie because he really thought it was a parole violationand was not going to jam himself up by saying he wasn’t there in Brooklyn. (P 249)

Defendant stated he asked Detective Mahony to contact his alibis as thedetective “started talking about the argument and money owed for the car. And I waslike, yeah, we was discussing the sale of a car. Detective Mahony told defendant thatHewitt and Clarke got shot “and we have people saying you did it.” “So I said absolutelynot...when I left they was alive. And I was in Queens with Lanette, [and] her girlfriendLisa.” Detective Mahony asked defendant for their information and said “would youmind us checking you out? I said no, no problem. I give them Lanette’s telephonenumber. You can check it out. I was there.” At the precinct on January 12, 1988,defendant was not able to make any phone calls, he did not call Lanette and he did notcall Lisa. (P 250)

According to his notes of the phone interview with Lanette, Detective Mahonyspoke to her at 8:00 pm on January 12, 1988. Defendant testified that he did not tellLanette what to say about his whereabouts on January 11, 1988. Subsequently, whenLanette came to see the defendant she told him that the police had asked her about hiswhereabouts at her house and that police spoke to Lisa. “ I said that’s g ood. She said,yeah, but they were threatening her saying that she could get arrested for, you know,helping me.” By then defendant knew what he’d been arrested for and “knew whatScarcella had done.” About fifteen to twenty minutes after he was interviewed byDetective Mahony, Detective Scarcella who was present during Mahony’s interview,

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separately interviewed the defendant in another room. He told Lanette not to speak withthe police anymore unless she had a lawyer because he did not want police to twist herwords up “and trying to jam you the way this guy [Scarcella] just did me.” (P 251-252)

Defendant testified that as soon as Detective Scarcella walked into the room hestarted making accusations against defendant for the murders of Hewitt and Clarke.Scarcella said he knew we were drug dealers, “called us like three amigos”. “He saidthat I know ya’ll three was together and then something happened and you split up fromthem. And now you’re not dealing with them anymore. But you’re getting ready to godown for these murders. He said we have evidence. We have a witness who says youdid it. We have a gun with your fingerprints all over it. And he said Steven Hewitt,before he died, said that you shot him. So he said we have all the evidence we need.You’re going down. So I’ll give you one opportunity to, you know, tell me whathappened. And I told him I don’t know what you’re talking about, but I had nothing to dowith their murders and that was it. And then at that moment when I told him that, he gotfrustrated. And then he started like banging on the table and telling m e, I’m trying tohelp you here and you’re sitting here lying to me. You think I don’t know. I know whathappened. The only way you’re going to get around this is if you tell me something. Tellme it was self-defense. Tell me they was trying to kill you.” (P 253)

Defendant continued, that Detective Scarcella got louder saying that nobodycares about them, they’re drug dealers and they deserve to die. Scarcella tolddefendant, “If you want to save yourself, you’re going to have to, you know, dosomething, say something. Give me some type of reason to save you.” Defendant saidhe got frustrated with him “because I’m trying to tell him I don’t know what he’s talkingabout and now he’s blaming me. And the things that he’s saying don’t make sense.Because these is my friends that I’ve known for a long time, right. And then on top ofthat, you know, he’s saying Steven told him, and my fingerprints are on the guns. I’mlike, you, this guy is crazy. I told him, look, I don’t want to talk to you no more. That’swhen he start banging on the table.” [And Scarcella says] “You know, I’m trying to helpyou and this is how you’re acting, you’re going to F yourself. And I told him, you know,you F yourself, all right.” “He’s like, all right, that’s how you going to be? Remember, Igave you this shot. You’re on your way upstate. Just remember that I sat here and triedto give you an opportunity, and he walked out.” (P 254)

No notes were taken by Detective Scarcella. He did not ask defendant to signanything. He did not show defendant a statement and ask defendant to read it. He didnot read a statement to defendant. He did not ask defendant if he was willing to bevideotaped. No one from the District Attorney’s office came to the precinct with videoequipment to talk to the defendant. According to defendant, the next time he sawDetective Scarcella was at the pre-trial hearings. Defendant testified that a statementattributed to him by Detective Scarcella was not his statement. “All I kept telling him wasthat I had nothing to do with it. I told him that directly. I had nothing to do with it and Ijust told the other officer that. And he [Scarcella] just kept going at it. And it ended with

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me telling him to go F himself and him walking out.” The statement, defendant’s exhibitQ was placed on a screen and defendant in detail stated that he did not say a singleword that was in the statement. “..the only thing I told him that I didn’t want to talk to himanymore. I told him I don’t want to speak to him at all.” (P 255-257)

Defendant stated that he did not shoot Hewitt and Clarke on January 11, 1988.When asked why he thought Harley Young would lie, defendant said he believed thatHarley thought he may have done it because he saw him arguing earlier and Harley didnot know his relationship with the victims. In addition to that, defendant believes thatpolice officers reinforced that thought in Harley’s mind when they interviewed him in theprecinct. (P 258)

Defendant told both Detectives, Philip Mahony and Louis Scarcella, that “I didnot have anything to do with their murders”. After his arrest, an attorney namedAbraham Nathanson was appointed to represent the defendant. Defendant stated hehad a number of “problems” with Nathanson. Nathanson was told about alibi witnessesand didn’t get back to Lanette. “After about six months of that” defendant stated he went to the judge and prison law library then filed a motion to have Nathanson removedas his attorney. (P 259)

On his second motion for such relief, the judge denied it because the trial wascoming up. None of the witnesses defendant requested was called to testify byNathanson. Defendant testified that it was not until after he pressed Lanette to not letNathanson “brush her off” and for her to tell the court that she wanted to testify in hisbehalf, that Nathanson filed a “late notice” of alibi for Lanette.38 Defendant also statedthat prior to trial no notes were produced by Detective Scarcella related to thedetective’s interview of defendant. Defendant did not testify at trial though he stated hewanted to and felt “helpless” because his attorney told him that he would not let himtestify because Scarcella got on the stand and testif ied that defendant said he “just gotout”. As a result, Nathanson requested a mistrial. And, because the attorney thought itwas an issue for appeal, he would not let defendant testify because doing so wouldnullify the issue for appeal. Defendant stated when he again asked about havingLanette testify, his attorney told him that he didn’t need her because the prosecutionhad not proven their case. Nathanson then declared to the court that the def ense wouldnot be calling witnesses and that he explained it to defendant. However, defendantstated that he was not fully aware that he still had the right to testify, [apparentlydefendant was not further allocuted on this issue by the court]. Defendant maintainedhis innocence stating that he did not shoot the victims. (P 259-263)

38 CPL 250.20; Alibi notice for Lanette is dated February 7, 1989, a day after the pre-trialhearing in this matter. According to the record, jury selection also started on February 6, 1989.

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On cross examination, defendant admitted that he was carrying a loaded gun39 atthe time he left his green BMW at Gates Avenue, approximately 8:30 pm, and took thetrain to Lanette’s house in Queens, arriving there at about 9:00 pm. After being told byfolks there that Lanette was likely at Lisa’s house, within five to ten minutes, he walkeddirectly there 40 and later, back to Lanette’s. Defendant testified that throughout his time“in the streets” and with the type of people he was associated with, he had ownedseveral guns to protect and defend himself. (P 265 to 276)

Though he drafted both affidavits, defendant clarified that his affidavit of 2005was incomplete and his recollection of events in his 2012 affidavit was accurateregarding what he did once he called Lanette. He explained to the court that he left outsome things in his first submission and was unfamiliar with forming a detailed affidavitand that the 2012 affidavit was more detailed. Both affidavits are to be consideredtogether, except that one is in greater detail. (P 283-290)

On cross examination, among other things, as the record reflects, during thesecond day of his CPL §440 hearing testimony, the defendant admitted that he knewDerrick Hamilton.41 Hamilton served time in the same facility with defendant and theyworked together in the law library and discussed their cases. Defendant also admittedthat he talked about the benef icial possibilities of a post-conviction decision in his favoras it relates to a subsequent civil action.

Defendant’s Investigation for his CPL 440 Motion

During trial and in pre trial discussions with his attorney, Mr. Nathanson,defendant reviewed statements made by Vivian Rivera compared to those made byHarley Young. (P 209)

Defendant pressed his attorney to find Vivian Rivera because her testimonycontradicted that of Harley Young’s. “He [Harley Young] specifically said at first that henever saw the murder. Then at trial he said something different. He said he did see themurder.” Defendant testified he made diligent efforts to find Vivian, but she could not be

39 The gun with the clip he’d had earlier at his girlfriend “Lilly’s” house.

40 Defendant stated the walk to Lisa’s house was about 15 minutes. Transcript, July 2,2014, P 276

41 People v Derrick Hamilton, 115 AD 3d 12 (App Div 2nd Dept Jan 15, 2014) Defendantmade a prima facie showing of actual innocence to warrant a hearing on his claim. Hamilton wassubsequently exonerated.http://www.nydailynews.com/new-york/nyc-crime/brooklyn-man-wrongfully-convicted-murder-exonerated-article-1.2071932

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found and he also spoke to investigators and other attorneys in “Innocence Projects”.(P 210)

In the CPL 440 motion he filed in 2006, he included the affidavit of LanetteHolmes, but did not know the whereabouts of Vivian Rivera or Lisa White. The motionwas denied. Subsequently, defendant says he heard that Lisa had moved back to NewYork from Atlanta and in approximately 2008 retained an “internet investigator” to findVivian. That investigator could only provide limited information and therefore anotherinvestigator, Kevin Hinkson was retained. (P 211)

Mr. Hinkson had tracked Vivian to an apartment in Brooklyn but she had movedand the trail went dry. Defendant had no more money to pay Mr. Hinkson. Whileworking in the law library assisting another inmate, defendant found out from the inmatethat he knew Carmelo “Melo” Sanchez, a relative of Vivian’s. (P 212)

It was not until after the inmate was released that he was able to contact “Melo”and provide “Melo’s” contact information to defendant. Defendant contacted “Melo” andasked him to find Vivian. (P 213)

Once “Melo” got in contact with Vivian, he informed defendant that, “yeah, shesaid she remembers. She said that she knows you didn’t do it, that her brother Papotold her you didn’t do it.” Defendant asked for Vivian to see the investigator, Hinkson,but she kept missing dates and was going through some medical thing. Consequently,defendant wrote an affidavit in 2011 and incorporated Vivian’s DD5 statement therein.Defendant sent both the draft affidavit and a copy of the DD5 to “Melo” to give to Vivianto see whether she recalled making certain statements and whether such was correct.(P 214-215)

Thereafter, defendant asked “Melo” to take Vivian to see the investigator,Hinkson. Because of Vivian’s statements, defendant realized that her brother, “Papo”was also a witness but did not know to what extent, because “Papo” did not give astatement to the police. (P 215)

Defendant initiated a search for “Papo”. “Melo” found “Papo” in a rehab place.“He said, yeah, I remember it [the murders] I was standing right there. I know it wasn’thim [the defendant]” Hinkson interviewed “Papo” and Vivian for an affidavit; butbecause she did not have identification, it could not be used, so defendant usedVivian’s affidavit from 2011 [for his instant motion]. (P 216)

Claims defendant made in his 2006 CPL 440 motion was that of newlydiscovered evidence in that defendant heard that the murders of the victims herein wascarried out by their rivals, a “violent Jamaican drug gang”. Defendant testified that hespoke with three individuals, Raga, Robert Hill and Ralph that confirmed it. However,“Robert Hill was the only one who was willing to give me an affidavit because nobody

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else wanted to get involved.” Defendant was also pointed to a book called “Born Fi’Dead” by Laurie Gunst that included a shoot out “Cee” had with the Jamaican gang. (P217)

Defendant also located an article from the New York Daily News archives,reporting the shootout, that mentioned Fitzgerald Anthony Clarke, a.k.a. “Cee”.Defendant found out that case was “abated due to the death of defendant.” (P 218)

The death certificate was the same as in the instant case. The case was abatedMarch 9, 1988, a year before defendant went to trial and defendant stated that theinformation was never turned over to him or to his attorney by the prosecutor. This wasthe basis of the “Brady claim” in defendant’s 2006 motion. (P 219)

Phillip Mahony Testimony July 9, 2014

Called by the prosecution to testify, Phillip Mahony, currently employed with EpiqSystems as an attorney doing document review work, specializes in consumerbankruptcy. After he retired from the NYPD in 2002, he entered law school, graduatedin 2005 and was admitted to the New York Bar in 2006. Mahony started with the NYPDas a police officer in 1980 and in 1988 he was a Detective with the 83 Squad andBrooklyn North in Bushwick, Brooklyn. Thereafter, he was promoted to Sargent andthen Lieutenant. Mahony stated that he had no independent recollection and hardlyremembered anything about the incident on January 11, 1988. As such, he testif iedbased on his review of the police files, reports, DD5s, his grand jury testimony, hisHuntley pre-trial hearing testimony and other documents regarding this matter that waspresented to him by the defense. (P 387-391)

“Any knowledge that I have now would come directly from the documents, notfrom my memory.” Mahony recognized the documents with his signature, identifyingnumbers and his handwriting. In particular, there were handwritten notes documentingan interview Mahony conducted of the defendant.42 (P 392-393)

In explaining his note taking practice, Mahony stated that his notes were not averbatim record of what the defendant said. The notes were then documented on aDD5 #10. 43 Defendant’s first statement to Mahony is “I wasn’t on Gates Avenue lastnight. Steve Hewitt came to my house and borrowed my BMW at about 6 pm or 6:30pm. I was in Queens all night with my girlfriend Lanette...” The statement included

42 The notes were admitted into evidence as Defendant’s Exhibit P.

43 The DD5#10 of Detective Mahony’s interview of defendant was marked in evidence asPeople’s 1.

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Lanette’s phone number and her address. Mahony testified that he typed thatinformation into the DD5 because that’s what defendant told him at the interview. Thesecond statement reads, “I did go to Gates Avenue last night by train on my way toQueens. I took a train there to see my girlfriend “Lilly”, (Eileen Garcia). Her sister wasthere too.” And, the third part of the statement on the DD5#10 read, “Me and SteveHewitt drove from my house to Gates Avenue together in the green BMW license plateVVDX345 that I bought from Steve. I haven’t paid him all the money yet. I went in tosee my girlfriend Lilly, then I talked to Steve about the car because I owed him moneyfor it. I went back home for the title and gave it to Steve. Fitzgerald wasn’t there. About15 minutes later, I left for Queens. I took a train there. I was on Gates Avenue for abutan hour altogether before I left. I first went to my girlfriend’s friend Lisa’s house andthen from there to Lanette’s. I was at Lisa’s house at about 9:00pm and Lanette’s atabout 11:00pm. I didn’t shoot anybody. I didn’t see any shooting.” Mahony stated hedocumented the statement because it is what the suspect at the time, Louis Holmes,told him. (P 395-400)

Mahony explained that the statements, obtained through his conversations withthe defendant after reading Miranda rights, were in intervals of 15 minutes to 30minutes with defendant explaining the “contradictions”. (P 408-410)

On the bottom portion of Mahony’s handwritten notes, separated by a large whiteblank space is the “orphan” statement “you know what happened. I gave him the car.They were going to kill me.” 44 Though it is written in Mahony’s handwriting, he could notrecall where it came from and stated that if the statement had come from the defendanthe would have written it in his DD5. That statement is not reflected in Mahony’s DD5nor in Mahony’s Grand Jury testimony. (P 415-416)

Continuing on cross examination, Mahony agreed, “absolutely” that thestatement was important and that such a statement is “...not a full confession, but it’senough to shall we say, put him in the soup.” When asked again, whether Mr. Holmesmade the statement, “you know what happened. I gave him the car. They were goingto kill me”, Mahony answered, “I would say he didn’t, because it’s not in my DD5s or–it’s something I would have wrote in the DD-5s if he confessed directly to me. If he[defendant] said that directly to me, I would have put it in my DD5 for sure.” Whenpressed as to who might have told him that and whether Scarcella told him, Mahonystated “I have no memory of why that’s there [in my handwriting] or who told me.” (P439)

Mahony testified that the handwritten notes, “notations of things that are said”are typed up into DD5s generally quickly “while it was fresh in your memory” and theDD5s to One Police Plaza. (P 437-438)

44 Defense counsel, Ron Kuby, characterized it as an “orphan statement”. “...little orphanstatement because nobody seems to know where it came from.” (Transcript July 9, 2014 P 440)

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Agreeing that “...the more important the statement, the more important it is thatyou document where it came from”, Mahony also agreed that “if a defendant is makinga confession...it’s equally super-important to note where it came from..” ( P 442)

Mahony also reviewed his Huntley/Wade pre-trial hearing testimony held beforeJudge Goldstein in February 1989. Mahony saw from the records that a “riding ADA”was called to take a video statement of the suspect and that in 1988 it was automaticprocedure on a murder case where there was a statement from a suspect to have itrecorded by video. However, upon review of the DD5#10, Mahony stated that theADA’s office was notified but there is no indication of whether the ADA responded ortook a videotaped statement. The record does not show that a videotaped statementwas ever taken of the defendant. (P 401-403; P 432)

Mahony agreed that having a videotape of defendant’s statement would be the“platinum level” and having an audiotape of defendant’s statement would be the “goldstandard”. Mahony has no idea whether an audio tape or video tape of defendant wasdone. However, on DD5 #2 there is an indication that “At 0400 hours, riding ADA TomMerrill responded” to record a statement by Harley Young. Talking about levels andusefulness of recording statements by suspects, Mahony agreed that the defensecharacterization as “silver level” of a suspect’s written signed statement, witnessed bythe officer is “...also very useful, yes.”(P 443-446)

The “orphan statement” was not signed by defendant. Mahony did not take thestatement from defendant, he did not show it to the defendant, did not ask thedefendant to repeat the statement or ask the defendant to sign it. The first time in 26years that Mahony noticed the statement is when he reviewed it with the DistrictAttorneys office this afternoon.(P 448-449)

Referring again to DD5 follow up report #10, there was also no mention in any ofthe three statements that Mahony did take from defendant that Fitzgerald Clarke wasthere. In defendant’s third statement, it says Clarke was not there, but when Mahonytestified before the Grand Jury, he said that Clarke was there. (P 449-450)

The defendant was identified live through a one-way mirror. Another detectivewas involved in making the arrest and two supervising officers signed off on the DD5.45

(P 406-407)

However, the supervisor who signed off on Mahony’s DD5 is different from the

45 Detective Viggiani was involved in making the apprehension and arrest. Sargent JimDugan and Lieutenant Nick DeLuise signed off on the DD5 as indicated by their initialsidentified by Mahony. Mahony stated that both supervising officers are deceased. LieutenantDeLuise was the commanding officer at the 83 squad and Mahony’s boss. (Transcript July 9,2014, P 434)

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supervisor who signed off on Detective Chmil and Detective Scarcella’s DD5s. Mahonycould not recall why there was a difference.

According to Mahony’s testimony from the transcript at the pre-trial hearing, thedefendant was “...taken from the cell into the lieutenant’s squad room” at about 7pmand Mahony stated “I remember Detective Chmil was present and Detective Scarcella,Louis Scarcella. They were there also. They were from Brooklyn North Homicide TaskForce, assisted me on the case. They were in and out of the room. I think I was the onlyone in there steadily.” After he obtained defendant’s statements as aforementioned,Mahony says that he does not remember asking Scarcella to go back in and questionthe defendant again. (P 424-428) As to whether he’d ever asked Scarcella to go back inand question a suspect after he’d obtained statements, Mahony stated “sitting herenow, without reviewing all my homicide records and so on, I don’t remember havingdone that.” (P431)

Mahony testified that the defendant, “...gave those three statements, correct. Butat the time, you know, he didn’t implicate himself in the actual shooting.” (P 431)

Defense counsel presented a screen shot view of it’s exhibit R4, a handwritten81/2 by 11 white page indicating interview of alleged eye-witness Harley Young onJanuary 12, 1988 at 0200 hours (2 am). Mahony indicated that it looked like hishandwriting but he did not remember taking the statement or writing it with“...interlineations and circles and cross-outs”. (P 452-453)

Noticeable at the bottom of the first R4 exhibit page is that Young stated he didnot see a gun. On the second page of the exhibit, Young says he did see defendantwith a hand gun, that he lost sight of Clarke and later found out that Clarke died.

In his canvass for witnesses, Mahony did not come across or investigate DonaldCoakley or Elvis “Papo” Rivera, but on redirect by the People, he did say that it iscommon that there may have been witnesses who would not have made themselvesavailable to police. (P 452-454)

Also on redirect, Mahony clarified that it was not the policy of the New York CityPolice Department (NYPD) in 1988 to audio record statements given by suspects andthat to the best of his recollection he “always” followed police department policy. (P 454)

However, on cross examination, Mahony did say that if he as detective chose to,he could have audio taped the defendant “...in an unobtrusive place and recordclandestinely...” But Mahony did not do that and he did not know of anyone that did. (P 445)

Defendant’s statement, recorded on Mahony’s DD5#10, People’s exhibit 1, thathe didn’t shoot anybody and did not see any shooting was not documented in Mahony’shandwritten notes. (P 455) As aforementioned, this is one of the three statements that

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Mahony said defendant told him.

Exhibit I, of defendant, shown to Mahony was a DD5, dated January 11, 1988, ofthe interview of Vivian Rivera, signed by Detective Chmil. The DD5 shows that Vivianmentioned her brother “Papo” was at the scene of the crime. She told Chmil or Chmilwrote that Vivian told him that her brother “Papo” shouted to an officer at the scene thatthere was “another guy shot down the street.” Vivian then walked down the street andsaw Cee laying in a lot. (P 456-457) Earlier, Mahony testified that “Papo” was notknown to him.

Carmelo Sanchez Testimony July 10, 2014

At the time of the incident, Carmelo Sanchez who is a cousin to Vivian resided at1493 Gates Avenue in Brooklyn. He currently is a property manager/buildingsuperintendent residing at a different address on Gates Avenue in Brooklyn. Sanchezwas called, via a judicial material witness order, to testify for the prosecution althoughhe stated that he did not want to do so.

Sanchez was convicted twice. Once in 2005 for weapons possession in Queenswhere he stated he had a pocket knife. Prior to that he was convicted in 1996 forAttempted Criminal Sale of A Controlled Substance in the 3 rd Degree for which Sanchezsays he was set up but plead because he did not want to go to jail. He says he did notdo the crime and never took drugs or sold drugs. (P 462-467)

In 1988, Sanchez lived next door, near his second cousin, Vivian and her nieceLilly (Eileen Garcia) and he worked at a Bodega for his father-in-law. He knew thedefendant for about six months from the neighborhood and that defendant wasconnected with the building at 1495 Gates Avenue, a known drug spot. Sancheztestified that he did not know the victims personally, just by names. He is close withVivian and knew that she had a severe drug addiction in 1988. Sanchez stated that hehad not had contact with the defendant until two years prior to the hearing when he wascontacted by another cousin of his, Eddie, who was incarcerated with the defendant.Eddie had been asked by the defendant to reach out to Sanchez in order to get incontact with Vivian. Sanchez gave his telephone number to Eddie’s mother who passedit along to Eddie to give it to the defendant. Subsequently, the defendant contactedSanchez by phone. About two to three months prior to the hearing, Sanchez again hadphone contact with the defendant. (P 468-472)

Sanchez testified that he did not know the defendant had been locked up “allthese years”. Defendant asked him to find out what Vivian might have rememberedabout the incident on January 11, 1988. Whereupon, Sanchez assisted in getting anaffidavit to and from Vivian for the defendant. Confirming that he knew Vivian could notread or write much, he admitted to his own unfamiliarity with reading and writing statingthat he had only reached 9th grade of school and would be surprised if Vivian had

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finished the 9th grade herself. Sanchez did not recall the contents of the affidavit norwhether he read all or any part of it to Vivian. He only recalled that he obtained theaffidavit from Mary, a mutual friend, to give to Vivian who had to get it notarizedwhereupon he picked up the document from Vivian and returned it to Mary. (P 474-480)

Sanchez knows Elvis “Papo” Rivera, a brother of Vivian and received a call froman investigator who wanted to get in contact with Vivian and Papo. Sanchez stated hisonly involvement was bringing the two to the address he received from the investigatorfor a meeting. Sanchez did not attend the meeting and does not know what was said atthe meeting. He does not know where “Papo” is currently and the last time he saw“Papo” was about three months prior to the hearing. Sanchez had some contact withVivian the day before he testified at the hearing. (P 481-483)

During the course of his conversation with Vivian, two years ago when thedefendant asked him to reach out to her, Sanchez stated that Vivian told him sheremembered being with Cee’s brother in the Gates Avenue building hearing the shotsand they both went outside to see who got shot. (P 484)

Sanchez had told the prosecuting attorney when he was first contacted by theDistrict Attorney’s Office that he did not want to talk with him and wanted to have nocontact with them. Sanchez, at the hearing by order of subpoena, maintained that hedid not want to testify for the prosecution and retained an attorney, Spiro Ferris whowas present at the hearing on June 10, 2014 for his testimony. (P 488)

Jorge Nicholls Testimony July 10, 2014

Jorge Nicholls, who describes himself as defendant’s best friend and has beenconvicted of a number of crimes 46, was living in Brooklyn in 1988 and he knew bothvictims through his association with the defendant. Nicholls did not witness the murders.He learned that the defendant had been arrested from the defendant himself who calledhim from jail. Nicholls, though called by the prosecution, testified to rebut the statementthat Michael Kimbrough made to police that defendant had confessed to him. 47

Nicholls stated that Kimbrough, an associate of his, was at his home when thedefendant called from jail, sometime after he was arrested. The defendant spoke onlyto Nicholls and not to Kimbrough. “Mr. Kimbrough wasn’t a friend or associated with Mr.

46 Jorge Nicholls admitted that he was convicted of possession of cocaine with intent tosell; burglary and weapons possession. He testified the arrest/conviction for weapons possessionwas in 2003.

47 Defendant’s Exhibit N, Follow-up police report #14 DD5 of Michael Kimbrough’sstatement was shown to Nicholls at the hearing.

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Shakur.” Because of those factors, Nicholls testified that he personally knew that thestatement made by Kimbrough was not true. (P 493-492)

On cross examination, Nicholls testified that Kimbrough “never spoke to thedefendant, ever”. He based that on the nature of their relationship as well as hisunderstanding of that relationship that defendant and Kimbrough would never havespoken. (P 497-498)

Nicholls currently works security for a construction company and says he neversold drugs although he had been convicted for selling drugs. He explained that he wascharged with “possession with intent” and it was cocaine for his personal use. Nichollstestified that he was not involved in the drug trade with defendant and the victims in1988. The last time he used drugs was in 1991 when he got arrested. (P 499-500)

Proceedings Transcript, August 5, 2014

In addition to Mr. Sanchez, a judicial material witness order was signed for thePeople’s witness, Michael Kimbrough, who did not appear. The People had difficultylocating him and ultimately determined that Kimbrough was out of state.

ADA Jessica Wilson appeared on the record to inform the court that she spokewith Mr. Kimbrough by phone and that he was out of the state. Detective Investigatorsof the District Attorney’s Office had located Kimbrough and provided a telephonenumber for him. Kimbrough was also identified through matching photos with that on filewith Department of Motor Vehicles. He did not testify at defendant’s trial. AlthoughKimbrough had allegedly stated to police, as reflected in a DD5, that the defendant hadshot Clarke and Hewitt, Kimbrough was not previously contacted by the ConvictionReview Unit.

Information was provided to the court that Kimbrough recanted what he told thepolice 26 years ago. However, the People had not introduced any evidence at trialregarding Kimbrough.

According to Ms. Wilson, the investigators were in contact with Kimbrough onJuly 9, 2014 through text messaging. Kimbrough did not want to speak with theinvestigators, whereupon they told Ms. Wilson and she took the phone and lef t avoicemail message for Kimbrough hoping he would talk with her.

The next day, Ms. Wilson received a call from Kimbrough. Kimbrough told Ms.Wilson that maybe what he told detectives was not true and that he was probably tryingto get a deal; that he never got a phone call from the defendant.

Kimbrough stated that the information he had regarding the defendant as relatedto the incident on January 11, 1988, he’d heard from “a Panamanian named Jamel ...

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[who] heard it on the street”.

A material witness order was also signed for the People to obtain Omar Nicholsas their witness. Kimbrough stated to Ms. Wilson that he did not know Omar Nichols butfrom her conversation with him, it appeared that Nichols was a friend of Jamel’s.

Ms. Wilson stated that while Kimbrough stated he could not remember anydetails, “he certainly remembered the circumstances about it.”

Louis Scarcella Testimony December 4, 2014

Both sides had rested by August 2014. The hearing was reopened to allow thefollowing.

Louis Scarcella, retired NYPD Detective, was called by the defense to testify. Heappeared with his attorneys, Joel Cohen and Alan Abramson. At the time of thisincident, Scarcella had been a detective for six years having previously served for 16years as a police officer. His command was Brooklyn North Homicide which was madeup of senior detectives whose jobs were to assist precincts in homicide investigations.

Prior to his testimony at this hearing, Scarcella stated that he reviewed the priorhearing testimony, his trial testimony, two DD5s and he spoke about five times for aboutten to twenty minutes each time with his former partner, retired Detective Steve Chmil.The conversations did not help refresh Scarcella’s recollection nor did it refresh Chmil’srecollection about what took place on January 11, 1988.That night, Scarcella showedup at the 83rd Precinct. He does not recall whether he was called there or whether it waspart of a “catching order”. (P 3-8)

Rather than direct assignments, a “catching order” was made up by supervisors.The detectives responded on their own under the direction of a supervisor in both thehomicide squad and the precinct unit. Scarcella stated he would go where ever he wasneeded pursuant to specific requests along with standing orders and working his owncases. At the time of this incident, Chmil had been Scarcella’s partner for about 16months. (P 8-9)

This case was assigned, by the supervisor working that night, to both DetectiveMahony from the 83rd Precinct and Detective Chmil from Brooklyn North Homicide. (P10)

Defendant’s exhibit R1 of the DD5 dated January 11, 1988 at 1:00am, indicatedthat Scarcella was present and interviewed Police Officer Camaratta. Camaratta gaveScarcella a statement including the name of the defendant, Louis Holmes and thename of the witness, Harley Young. (P 12-13)

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Scarcella had no recollection of running the defendant’s rap sheet or gatheringinformation about the victims and does not know whether he visited the scene. He saysit was Detective Mahony who informed him when the defendant was brought into theprecinct. Scarcella stated that although he assisted, Detectives Mahony and Chmil wereequally responsible for the case and they both had duplicate folders. “That’s the way itwas back then.” He testified that he did not believe he was present when Mahonyquestioned the defendant and could not remember whether Chmil was in the room. (P14-16)

Although he didn’t remember the specifics of what Mahony told him afterMahony concluded his interview with the defendant, Scarcella testified that Mahonyasked him to speak with the defendant. Scarcella recalled that he was asked to do so inorder to talk to the defendant about the crime and possibly obtain a statement, but hedoes not remember asking Mahony whether Mahony had gotten a statement from thedefendant. According to his DD5, Scarcella’s interview of the defendant began at 20:48hours (8:48 pm) and he says he spoke to the defendant for about 20 to 30 minutesincluding introducing himself, telling defendant where he worked, what his job was andconveying information about his family. (P 17-19)

Scarcella continued that he and defendant started talking about both of theirfamilies. He did not remember telling defendant that he knew the victims were drugdealers and he has no recollection of referring to defendant, Clarke and Hewitt as the“three amigos” but he admitted it’s possible that he did refer to them as such. (P 20-21)

Defendant’s Exhibit Q of the DD5 dated January 12, 1988 of the typewrittenstatement taken by Scarcella purporting to be from defendant was read by Scarcella:“Man, you know I just got out. I spoke to the cops before on another case, and all it gotme was jail. You know what happened. You have it all. They were going to kill me. Iknow C and Steve for about two years. They deserve to die. The two of them are part ofan organization. They are drug dealers. The organization is bigger than you and me. Iknow a girl in the building. The drugs are just too much. Man, I can’t say anything more.I have to go away.” Notes Scarcella had written on pages of a legal pad and clipped tothe back of the DD5 he says were lost or destroyed. (P 22-24)

After he puts the DD5 with his notes into a case folder the case detective takespossession of it and in this case it would have been both Mahony and Chmil with one ofthem making sure each had a copy. (P 25)

Scarcella stated that he typed his notes into the DD5 form within a minute to 90seconds of leaving the interview room. He stated that under the circumstances and thenature of the statement it was the procedure at the time to call an assistant districtattorney to videotape the defendant however it was not his call, he did not do it andbelieved it was the job of the case detective, either Chmil or Mahony to call the ADA.(P26-28)

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Scarcella did not remember whether he asked the defendant to sign the notes orthe statement and upon review of the records defendant did not sign and it’s notindicated on the DD5 whether any of the assigned detectives were asked to come intothe room for defendant to repeat the statement. (P 29)

Scarcella admitted that the “only proof whatsoever that you know of, that Mr.Shakur ever made these statements, was your [Scarcella] testifying to it.” (P 30)

A number of public pronouncements were made by Scarcella and a video wasshown of an interview of him stating “No one believes detectives. No one believespolice officers.” And then he said, “Go to the video.” In the same clip Scarcella said thathe had been accused many times of beating confessions out of people and his answerto that was “Take a look at the video.” Scarcella admitted that when he said take a lookat the video, “that’s because the video is going to show that the defendant actuallyconfessed without coercion.. [and] it will be the defendant’s own words out of his ownmouth...” However, in this case, Scarcella says he does not remember if he did call theD.A. or not. (P 31-33)

In addition to not remembering whether he knew the defendant’s statement thathe just got out was true, the substance of Scarcella’s testimony at trial was differentfrom the recorded statement on the DD5. While on the DD5, Scarcella recorded, “Youknow what happened. You have it all”, at trial he stated, “man, you know the story. Youknow how it is..” 48 The phrasing of the statement was pointed out to be similar to onesScarcella attributed to other defendants in cases, he handled and testif ied at, such asthat of David Ranta, Hector Lopez, and Jabbar Washington.49 (P 33-41)

When asked whether he investigated the substance of defendant’s statements,such as how long defendant actually knew the victims and what organization defendantwas talking about, Scarcella stated he did not remember. (P 43)

Then, Scarcella was queried about the “orphan” statement in Mahony’s notes. Itwas not Scarcella’s handwriting and while a part of the statement in Mahony’s notes,

48 Trial transcript P. 187

49 The purported statement, “you got it right. I was there.” and “I was there.” reflected innotes by Scarcella regarding these three cases were probed in a New York Times article datedJune 12, 2013. In this case it is compared to Scarcella’s DD5 of defendant’s statement indicating,“...you know what happened, you have it all.” And, at trial, Scarcella testifying that defendantstated, “man, you know the story. You know how it is.”http://www.nytimes.com/2013/06/13/nyregion/several-murder-confessions-taken-by-brooklyn-detective-have-similar-language.htmlhttp://www.nytimes.com/interactive/2013/06/13/nyregion/scarcella-confession-documents.html?_r=0

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“they were going to kill me”, is reflected in Scarcella’s DD5, he stated that he did not tellMahony what defendant had told him. Scarcella stated, “He [defendant] possibly statedthis to Mahony. How do I know that.” (P 45-47)

The prosecution had no questions for Scarcella at this hearing.

Trial Excerpts

The double homicide trial was very short, consisting of three days, February 8, 9,14, which included jury selection. The jurors deliberated for less than a day, getting thecase at 1:05pm on February 14, 1989, ending at 5:35 pm, they broke for dinner andthen was sequestered in a hotel. The jury rendered its verdict to convict the defendanton two counts of Murder in the 2nd Degree, the next day at about 2:35 pm.

All of the witnesses who testified at trial did so at the behest of the People. Thedefense did not call any witnesses.

During the charge conference, the court queried whether the defense wanted thecourt to charge manslaughter, defense counsel indicated he talked it over with his clientand did not want a manslaughter charge.

At the conclusion of the verdict rendered on February 15, 1989, the defenseindicated he would reserve motions until “motion day”, a reasonable interpretationmeaning at the next adjourn date which was the day of sentencing on March 9, 1989.However, at sentencing defense counsel made no motions. At sentencing statementswere given by the People, the Defense, victim impact statements from a relative ofeach of the victims and defendant spoke, maintaining his innocence.

Notable is the People’s summation which consisted of impermissible shifting ofburden to defendant. Defense counsel objected. The court sustained and gave acurative instruction. Defense counsel did not call for a mistrial. As such, that issue wasnot preserved for appeal.

Ten pages, numbers 26 to 36, of the 205 page Trial Transcript dated February 8,1989 were found to be missing from the court’s copy, the People’s copy and thedefense copy.

Harley Young Testimony February 8, 1989

Harley Young testified as an eye witness at trial. He stated that he is the brotherof Fitzgerald Clarke, he knew Steven Hewitt since 1978 and he had known thedefendant for about eight months.

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On January 11, 1988, Young and Hewitt had gotten together about 5pm to 5:30pm that day. Young was staying in Brooklyn with his mother and sister though heresided in Florida.

He met the defendant in August of 1987 and saw him about four or five times amonth as defendant lived in his neighborhood. Prior to the homicides Young had aboutfour to five face to face conversations with defendant in the eight months he’d knownhim.

During that day Young and Hewitt were en route to 225 th Street in the Bronx.However, “on our way there Steven decided to stop at Gates Avenue and Irving to seeLouis.” Hewitt approached defendant and had a conversation. (P 77-78)

According to Young, he overheard defendant say that he could not give up hiscar, a green BMW, because he needed it for work. The vehicle, owned by defendant,was parked on Gates Avenue between Irving and Knickerbocker. The conversation tookplace near where the car was parked. (P 79-80)

Young continued that during the conversation it was decided that the defendantwould go home and bring the registration for the BMW back to Hewitt. Defendant calleda taxi and left. Young and Hewitt remained in the area waiting. Young and defendantwere each in separate nearby buildings about twelve feet apart. Defendant had goneinto the building for about three minutes and came out with the title. Then he got in ataxi and returned fifteen minutes later and gave Hewitt the title. Then Young and Hewittleft to go into the adjacent building. Clarke came and they told him about thetransaction. When asked what were you guys doing in there, Young responded that“they were playing pool. I was just waiting on Steve [Hewitt]”. It was the first time thatday that Young saw Clarke on Gates Avenue. (P 81-84)

Hewitt and Clarke had a conversation. Young said that when they all wentoutside from the basement and defendant was there and defendant kept saying that hecan’t give his car up, that he needed it for work. Young stated that the conversationbegan to get loud with defendant repeating that he needed his car to go to work. At apoint during the heated conversation, the people involved walked away from oneanother and defendant went back into the house that he had been in bef ore, thebuilding furthest from the corner. (85-87)

Young says defendant was in the building for “a minute” then on his way into thehouse closest to the corner, defendant was coming out and walked towards whereClarke and Hewitt were standing. Defendant then got into the BMW and drove away forabout 15 minutes. When he returned, somebody told Hewitt that “he’s back. We allwent outside again. (P 88-89)

Claiming that he was about to push the door, Young said defendant was comingout of the adjacent building and defendant walked to the corner where Hewitt and

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Clarke were. “Then about a minute time, I heard two shots.” (P 92) Young was notasked on direct and he did not state what time he heard the shots.

Young testified that as soon as he opened the door, somebody came rushing in“Steven (Hewitt) got shot, Steven got shot.”. Young said he rushed outside and saw thedefendant chasing Clarke down the street. Young said it was nighttime but he saw thefaces because there was a big light on the outside of the church across the street. (P93)

Continuing on direct, Young stated he saw defendant chase Clarke, point a gunand fire two more shots. Clarke ran for four more paces and fell. Defendant continuedrunning the vacant lot. Young said he ran in the opposite direction then he saw Hewittlying in the middle of the street and someone was trying to administer CPR. Young saidhe shouted for someone to call an ambulance. (P 94-95)

Young then states that he saw defendant running one block over going towardsthe subway station. He estimated the distance from where he was to be about 25 to 30feet using markers in the courtroom as a guide for the jury. (P.96-97)

On cross examination of Young, it was established that Young never got to hisdestination in the Bronx as the defense queried, “So from 5:30 till about 10 pm, havingstarted out for the Bronx, you remained in the Gates Avenue area. Is that fair to say?”Young answered, “yes, sir.” (P 102)

From that point, the defense attorney focused on the fact that Young knewVivian Rivera, that he knew she lived in the “second building” in the area of GatesAvenue and that Young knew Vivian was the girlfriend of Hewitt. (P 103)

Young saw Vivian that night as she, Hewitt, Clarke and Young were all inside thebuilding closest to Irving Avenue at one point, the same building Young was in when heheard shots.(P 104-105)

Young saw Vivian inside the basement of that building along with Clarke, Hewittand “some other people”. They were back and forth from the building to the street.Young stated he saw Vivian, Hewitt’s girlfriend, again that evening, of January 11,1988, in the street “during the commotion” after shots were fired. Young stated he didnot know Vivian’s brother, “Papo”. (P 106-108)

At the time the shots were fired about four or five people were out in the street.Young stated he did not know any of them personally. Young spoke to police officersafter the incident and he saw police officers talking to other people. Young hadawakened at 8 am that day and did not go to work. As testified on direct, Young metHewitt at 5:30 pm.( P109-110)

When asked whether he told a police officer that he saw two persons being shot

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at, Young stated “no sir, I did not.” He stated that he did not witness the shooting of twopersons. (P 111)

Young stated that Hewitt’s body was lying in the middle of the street at Gatesand Irving Avenue. (P 112-113)

When he heard the first two shots, Young said that he was “just beyond the door,in the hallway.” Later he saw and heard other shots, ran to his brother and found himlying in the street bleeding. He went first to his brother, Clarke, not to Hewitt.Subsequent to the shootings, Young was interviewed by Detective Mahony in the 83rd

Precinct. (P 115-116)

When asked whether Young told Mahony in the morning of January 12, 1980,that he went up to the corner where Hewitt was on the ground and then someone said,“another person is lying in the lot. I went to the lot and found my brother.” Youngclaimed he did not tell Mahony this. Young stated that he also did not tell Mahonyduring that same interview that he did not see a gun. (P 116-117)

On redirect, Young testified that he was engaged in conversation with Mahonyface to face but that he is not sure Mahony was writing down every single word he said.(P 118)

Just before the shots rang out, Young said that he saw Clarke and Hewitt“standing facing each other, conversing privately right at the corner of the building” neara garage at the corner with a wire fence and adjacent to the house building on my wayin. (P 119)

While near where the commotion around Hewitt was on the street, Young statedhe saw the defendant “on the other street over from Gates Avenue running towards thesubway, like running towards Broadway.” (P 120)

On re-cross, Young clarified that he meant running in that direction, using thesubway reference for a landmark.

Detective Anthony Viggiani Trial Testimony

Detective Anthony (Tony) Viggiani, with the NYPD for eight years and threeyears as a detective, and assigned to the 83 Squad for three years responded to 1478Gates Avenue on January 12, 1988 at 8:05 am. At that time, Efrain Miranda gave him afirearm that Miranda obtained from a garbage can outside of his residence. Viggianivouchered the weapon and had comparisons made by ballistics experts of bullets foundin one of the two decedent’s bodies. (P 20-25)

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Efrain Miranda Trial Testimony

Efrain Miranda, an unemployed former corrections officer with two years ofmilitary service testified that he found a .38 revolver in a garbage bin in front of wherehe used to live near the vacant lot. He described the weapon as having brown pistolgrips and blue gun metal, a 4 inch, 2 roll barrel made in Brazil. He checked the weaponand could tell that it had been f ired with six empty shell cases. Miranda’s familiarity withweapons flows from his military training and experience as a corrections officer as wellas his ownership of several different types of guns. (P 37-42)

Eileen Garcia Trial Testimony

Eileen Garcia, a girlfriend of the defendant, for about five to six months, livesnear Gates Avenue. She stated she saw the defendant every day and knew that heowned a green BMW having rode in it herself. She also knew the victims, Clarke andHewitt since the summer. (P 57)

On January 11, 1988, Eileen saw the defendant, Clarke and Hewitt talking infront of her building at 1493 Gates Avenue between Irving and Knickerbocker inBrooklyn. She was outside with them and then went inside. Defendant came into herhouse and they had a conversation about Clarke’s brother getting into defendant’sbusiness about selling his car. (P 60-63)

Eileen told defendant to forget about it, asked him if he wanted something to eatand then fixed him a sandwich. She then had a conversation about 7 pm to 7:15pm,with the defendant about a gun she though he had on him because she saw a clip.After he ate he pulled out a clip. Eileen told defendant to get the gun out of her house.She said defendant told her he had to go anyway and was going to his house inProspect which by her estimation is 20 minutes from her place. Eileen said thatdefendant kissed her goodbye and left. She went to her window and watched him getinto his BMW and leave. (P 63-67)

It was 15 to 20 minutes later when Eileen said she saw that defendant’s car wasback and parked. Later on in the night, “about an hour, hour and a half or two hours”Eileen said she heard gun shots, about 10 pm to 11 pm and the news was on. (P 68-69)

On cross examination, Eileen said she did not see defendant with a gun on thenight of January 11, 1988 but defendant told her he had one in his pocket and she sawthe clip. She also testified that she told an ADA that defendant did not have a gun onhim and she knew her statement was being recorded by ADA Thomas Merrill. (P 69-70)

Eileen concluded her testimony by professing her love for defendant and said

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she continued to feel that way but was not sure whether she’d do anything to hurt him.(P 72)

Detective Phillip Mahony Trial Testimony

Detective Mahony testified right after Harley Young. His trial testimony on February 8,1989, essentially comports with the way he testified about his interview of defendant atdefendant’s CPL 440 hearing on July 9, 2014.

This was his case. He did not record verbatim, but recorded the substance of hisinterview of people connected with the case. The homicides on January 11, 1988 tookplace on Gates Avenue between Irving and Knickerbocker Avenue in the Bushwicksection of Brooklyn. Mahony ordered the Crime Scene Unit to investigate the incident.

A number of People’s exhibits, photo of Clarke’s body, and photos of the carwere admitted through Mahony’s testimony to show the location and general layout ofwhere the crime took place.

Mahony’s interview of the defendant took place at 7pm where he first readdefendant’s Miranda rights. Mahony read the Miranda script from his notes into therecord. Defendant agreed to answer questions. Mahony reiterated the substance ofwhat he told defendant and what defendant told him from their continuous conversationwhich formed the statements he took from defendant as recorded in Mahony’s DD5interview of defendant. Mahony said that his interview of defendant, who was alreadyunder arrest, was conducted in his natural voice with out yelling, or any abusive tactics.

Mahony said that following his interview of defendant he did have a short conversationwith Detective Scarcella and then “...Scarcella went into the detectives’ room and had aconversation with Louis Holmes.” (P 167-168)

On cross examination, Mahony told the court that he had interviewed Harley Young inthe late night of January 11, 1988, running into the early morning of January 12, 1988.Mahony did not recall making written notes of Young’s interview but he typed up a DD5of it. Notes were produced of that interview and investigation that Mahony admitted wasin his handwriting. Mahony did not have copies of the notes and stated “I haven’t seenthis.” (P 168-170)

Mahony testified that he did not recall Young telling hm that he did not see the gun thatwas used to shoot his brother. Defense exhibit A was handed to Mahony to refresh hisrecollection. Mahony stated the document did not refresh his recollection. (P 172-173)

After some back and forth, and bench conferences, defense exhibit A, followup 2 on thesecond page, was shown to Mahony and Mahony admitted that Young did tell him that

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he did not see the gun that was used to shoot his brother. (P 174-175)

Mahony was asked about his grand jury testimony on January 15, 1988, three daysafter defendant’s arrest where Mahony was examined and questioned by ADA SusanMondo. What Mahony told the grand jury, different in form from the actual statementrecorded on his DD5, was read before the jury. Mahony testified that the statement wastruthful when he testified before the grand jury. (P 176-180)

On redirect examination, Mahony stated that he “basically” had two conversations withHarley Young, “a brief conversation at the scene of the crime and then a more in-depthconversation in the Precinct Detective Office later that night.” Mahony did not remembermaking the notes of the more lengthy conversation he had with Young but noted thetime indicated on the notes was 0200 (2 am). Certain portions of the notes werecrossed out. (P 181-182)

Detective Louis Scarcella Trial Testimony

Detective Louis Scarcella’s trial testimony on February 8, 1989 was also basically inconformity with the way he testified at defendant’s CPL 440 hearing on December 4,2014.

Scarcella assisted Mahony and others in the investigation of this matter. He waspresent at the 83 Squad from 10 am to 9pm. He saw Mahony and within five minutesthereafter, had a conversation with defendant. Defendant was sitting in LieutenantDeLuise’s Squad Commanders’ office in the 83rd Precinct. Only Scarcella and thedefendant were in the room and in their conversation, Scarcella stated that they alsotalked about drugs in general, in the area and in New York. (P 183-186)

Scarcella did not remember the conversation he had with defendant word forword but remembered and then told the jury the substance including the phrase “I justgot out” which is the exact statement as recorded in his DD5 of his interview ofdefendant. A sidebar took place. Defense attorney objected that it was prejudicial andasked the court for a declaration of a mistrial. The court denied the application andsuggested a curative instruction. After the sidebar, the court admonished the jury todisregard the “last statement” as spoken by Scarcella. A brief recess took place.Outside the presence of the jury, the court directed Scarcella not to say that part of thestatement, “I just got out.” (P 187-190)

Jurors were brought back into the courtroom. The direct examination of Scarcellacontinued. Scarcella used his DD5 notes and read the statement he said he took fromdefendant without the prejudicial phrase. (P 191-192)

On cross examination, Scarcella stated that the interview of defendant took

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about 20 to 30 minutes and that he made handwritten notes but did not have them. Hestated that the notes “...are probably[,] at this time destroyed.” (P 192-193)

The defense pointed out that the statement read by Scarcella was less than aminute and queried where was the other 20 to 28 minutes of the conversation.Scarcella stated that he only took notes as to what was pertinent. Scarcella did notremember asking the defendant “did you shoot those guys” says that he “must have”asked the question. (P193-194)

However, Scarcella admitted that defendant never flat-out told him “yes, I shotthose guys.” After an hour and a half interview by Mahony prior to that conducted byScarcella, defendant did not confess to Mahony. (P 195)

On redirect, Scarcella stated that he got along well with the defendant and afterhe concluded his interview of defendant, he typed up his DD5 within one minute.Scarcella said that his notes reflected verbatim what he put in the DD5.

Cammarata Trial Testimony

Police Officer Philip Cammarata was the first officer to arrive on the scene, onJanuary 11, 1988, before any other backup units responded. His duty was to protect thecrime scene, try to obtain witnesses and contain them in the area and keep the crowdaway from the bodies. He was also directed to a green BMW which he roped off. (P202-203)

Cammarata was a uniform patrol officer with the 83rd Precinct and he respondedvia a marked RMP (Radio Motor Patrol Car) to the corner of Irving Avenue and GatesAvenue in Brooklyn. At the time of his trial testimony he worked street crime inplainclothes and was with the NYPD for five and a half years. When he got to the scenehe observed a male in the street apparently having been shot on the corner of Irvingand Gates. There was also a screaming, yelling crowd gathering. (P 198-199)

Later he learned that the person shot in the street was Steven Hewitt. People onthe street screamed that another male had been shot about a quarter of the way downon Gates Avenue. Cammarata saw that Hewitt was in very bad shape and he ordered arush ambulance. The ambulance arrived within 30 seconds thereafter. (P 200)

Cammarata could not tell if Hewitt was breathing and had not seen anyoneworking on him when he arrived at the site. The two bodies were about 100 yards apart.The other individual was Fitzgerald Clarke who was laying face up with his eyes openand not known to be breathing. (P 200-201)

When he left the location about a half hour later, a number of units anddetectives were there. (P 204)

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On cross examination, defense explored the location of the bodies and distanceof the areas where the bodies were found. (P 205-207)

Cammarata testified on cross that Harley Young told him on January 11, 1988that he saw both victims being shot. (P 208 L8-16)

Donald Coakley Trial Testimony

The trial continued on February 9, 1989 with the testimony of an addedprosecution witness, Donald Coakley.

The first time Coakley talked to anyone about this matter was the day before trialfor about 20 minutes when he spoke to an ADA from the Kings County DistrictAttorney’s office. (P 240)

Coakley knew the defendant, Harley Young and the two victims. He stated he attendedthe funerals of Clarke and Hewitt. Subsequently he saw Young and members of theirfamilies.

At the time of the homicides Coakley said he heard the shots and saw the bodiesbut did not talk to police officers at the scene. He came to court to testify because theADA had been looking for him for about a month, though he had been ducking thePeople’s calls. An ADA called Coakley’s sister in order to make contact with DonaldCoakley. (P 236-238)

Coakley had known the defendant for about three to four months and saw himabout twice a week. Coakley did construction work for Clarke and Hewitt on theirbuildings. As a result of the regular work he did, for which he was paid, Coakleybecame friends with them. However he did not consider Young to be a friend. (P231-232)

On January 11, 1988, Coakley was in a building at Gates and Irving Avenues. Hetestified that Clarke, Hewitt, and Young was also there as well as other people and theywere “hanging out” playing pool downstairs in the basement. (P 219-220)

It was about 8:00 pm and Clarke, Hewitt and the defendant “...were arguingabout some money or something.” (P 221) However, Coakley says that he did not hearit, but he saw them speaking. Coakley apparently went to the store and when he cameback saw the defendant, Clarke and Hewitt talking. “Louis (defendant) was walking,coming up the block. And Fitzgerald (Clarke) was in his car, and Harley (Young) was onthe other side.” (P 223)

Then Coakley said he saw Clarke and Young come inside while he was standingin the lobby. Then he saw defendant coming up on Gates Avenue about 75 feet in

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relation to the vacant lot going towards Irving. Young was coming up on the left handside of Gates Avenue. (P 224-227)

Coakley then stated that he saw Hewitt lying in the street. (P 227)

Coakley maintained that he remained in the building while Young, Clarke andHewitt all walked out of the building onto the street and thereafter he heard a shot. Helooked through the door down to the corner and saw Hewitt. There were no policeofficers. Shortly after he saw a lot of police officers and emergency service vehicles. (P232-234)

Coakley never spoke to police officers about the incident.(P 235-236) He claimedhe was scared to go to police. (P 244)

Objections/Court’s Rulings

Upon application to the court outside the presence of the jury, defense attorneyasked that Coakley’s testimony be stricken for failure of the prosecution to provideRosario material relating to notes the ADA took regarding his interview of Coakley. (P245) The court determined that what the ADA wrote was not Rosario material. (P 246-247)

Defense counsel renewed his request for the testimony to be stricken as well asthat a mistrial be declared. The request was denied by the court. (P 248)

Over the objections of defense counsel, the court ruled that the weapon, the .38revolver, recovered from a garbage can near the scene, was admitted into evidencebecause there was enough connection to the defendant, that someone said they sawdefendant shoot a gun, that the weapon tested is the weapon that caused decedent’sdeath and defendant was seen running by. The ADA gave an offer of proof that theweapon, People’s number 1, was used in the homicide of Hewitt pursuant to ballisticsevidence. No ballistics evidence was recovered from Clarke’s body but the “gun wasrecovered near the body of Clarke, in the vicinity that Harley Young saw the defendantshoot Fitzgerald Clarke.” (P 250-251)

Ballistics, Medical Examiner and Other Trial Testimony

There were three additional witnesses, two regarding ballistics evidence andLloyd Hewitt, Steven Hewitt’s father.

Detective Robert Seebach, NYPD Firearms Examiner, Ballistics Squad,employed for 27 years and a detective for five years, works to “identify and examine

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small arms and their components that come into the custody of the NYPD and otheragencies.” With the Ballistics Squad for close to 16 years, Seebach has examined andtested over 26,000 firearms. He has previously testified 440 times as a ballistics expertin New York State court of law proceedings. (P 261-262)

The first time Seebach saw the weapon in this matter, People’s Exhibit 1, was onJanuary 21, 1988 as it was brought to the Ballistics Laboratory from the 83rd Precinct forexamination. (P 262) Seebach examined the weapon and found that its six chamberscontained evidence of a “prior discharge.” He was able to make such a determinationby “flash marks or darkened areas around the outer perimeters of the chambers.”However, he testified that he is not able to determine when that discharge happened.After that, he test fired the gun. (P 263-265)

Along with the gun, Seebach also received six .38 Special caliber dischargedshell casings. The shell casings, were marked as People’s exhibit 1-A. Based on histesting of the gun, Seebach formed an opinion that the “revolver as well as thecartridges, were indeed operable. It fired.” (P 266-267)

On cross examination, Seebach testified that the revolver is fed with bullets anddoes not feed by a clip and that a clip had nothing to do with the operation of a revolver.Seebach reiterated that he could not tell as there is no test to determ ine when thedischarge of the revolver occurred. (P 268-269

Detective Thomas Natale, with NYPD for 22 years and a detective since 1983, is

assigned to the Ballistics Squad as a microscopic evidence examiner. He classifies,identifies, and compares bullets and shells to weapons suspected in NYPD shootingcases. Natale has been doing this type of work since 1985 and underwent a yeartraining period with an in-house examination delivered by older members of theBallistics Squad. He passed the exam and was deemed qualified to do the work. Natale has conducted “many thousands” of examinations and has testified as aballistics expert over 370 times. (P 270-272)

Natale recognized People’s Exhibit 1 as a .38 Special caliber Taurus revolverand he saw the weapon for the first time at trial during his testimony. (P 272)

A microscopic examination of the weapon was conducted by Natale on January20, 1989. He compared test specimens taken from the revolver to a bullet taken fromthe body of Hewitt by the medical examiner. (P 273) Defense counsel objected. Thecourt sustained and ruled the last statement of Natale stricken at this time.

Outside the presence of the jurors, the court ruled that the testimony of theMedical Examiner was needed first unless the defense consented to the order. Defensecounsel did not consent. (P 274) There was no problem with the chain of custody of thegun. (P 275)

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The court would not allow hearsay as to the chain of custody of the bullet asNatale was not the proper person to say where the bullet came from. (P 276) Defensecounsel pointed out the uniqueness of the case where ballistics testing was done over ayear after the “proposed finding.” (P 277)

The object Natale compared was marked for identification as People’s exhibit 9,(the bullet taken from the body of Hewitt by the medical examiner). Natale was shownPeople’s 1-A (an envelope containing two .38 discharge shells and two .38 caliber leadbullets from the ballistics test) for identification. Defense counsel objected. A sidebartook place. Then the court informed the jury there would be a recess until 2:30 pm (P 278-279)

After the lunch recess, the Medical Examiner (M.E.), Marie Macajoux, M.D. wascalled to the stand to testify.

Licensed to practice medicine in New York State, Dr. Macajoux specializes in thefield of pathology which “deals with all aspects of disease with special reference tocause and development of abnormal conditions.” She is also trained as a ForensicPathologist, a “medical subspecialty dealing with the application of medical facts to alegal problem.” (P 287)

Dr. Macajoux has been an Associate Medical Examiner since 1986 and performsautopsies. In the three years she has performed about 1500 autopsies and witnessedmore than 2,000 autopsies being performed. She has previously testified about 60times in her capacity as an Associate M.E. (P 288-289)

On January 13, 1988, Dr. Macajoux witnessed the autopsy of the body of StevenHewitt by Dr. Michael Ferenc. She stated that Dr. Ferenc is no longer working at theM.E.’s office. (P 289)

As a result of the examination of the body findings are generated regarding thecause of death in a certified autopsy protocol or official report of the M.E.’s office. (P 290-291)

The report was admitted into evidence. It related gunshot wounds to the chest,back and left arm of Hewitt. There were for gunshot wounds along with some abrasions.Dr. Macajoux traced the path of the bullet entry and exit. (P 292-294)

People’s number 9 was given to Dr. Macajoux and she established thefoundation and chain of custody regarding the bullet removed from Hewitt’s body by Dr.Ferenc. (P 295) Before admitting it into evidence, defense counsel conducted a voirdire. (P 295-298) Then the court conducted a voir dire of Dr. Macajoux. (P 298-301)

Defense counsel continued his voir dire and objected to People’s 9 going intoevidence. The court overruled. Dr. Macajoux was present at the autopsy of Hewitt. (P

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301-303) Dr. Macajoux resumed her description of the wound paths. She determinedthe cause of death of Hewitt to be “gunshot wounds of chest, back arm, lungs, aortawith hemorrhage.” (P 303-304)

Dr. Macajoux was also present during the autopsy, performed on January 12,1988 by Dr. Michael Ferenc, of Fitzgerald Clarke. People’s 11 (autopsy report regardingClarke) was moved into evidence. The examination of Clarke revealed a “gunshotwound over the right side of the chest which exited over the left side.” (P 305-306)

The entrance wound of the bullet that killed Clarke was in the front lateral side ofhis right chest. (P 308) There were three exit wounds on Hewitt’s body. (P 309)

Detective Natale was brought back to the stand to continue his testimony. Hedescribed what’s involved in a microscopic comparison in a ballistics setting. Heidentified People’s 1-A. admitted into evidence without objection. People’s 1 wasobjected to. The court moved it in over the objection.. (P 310-315)

On cross examination, Natale stated that between January 13, 1988 andJanuary 20, 1989, the bullet was in the Ballistics files and had not been tested for overa year. (P 322) Natale said “if I had received a test from a weapon in connection withthis case, certainly I would have done that examination immediately.” He stated that hedid not receive a test from the weapon in connection with the homicide in this case. (P 323)

Because the ballistics numbers for each homicide in this matter was doneseparately, according to Natale the connection that it was for the same case was notknown. (P 323) The connection of the two separate ballistics numbers for this matterwas done at the request of the People. (P 324)

On re-cross, Natale stated that he did not know whether any fingerprints weretake from the gun. (P 325)

Lloyd Hewitt, the father of Steven Hewitt and Beverly Lemarsley, the sister ofFitzgerald Clarke both testified as to their identification of the victims.

A stipulation was received by the court that “if Police Officer Joseph P. Romeowere to testify, he would state that People’s 1 in evidence, the gun was tested for latentprint examination. All surfaces were processed for latent prints and nor prints forcomparison or identification were found.” (P 330, 332)

The People rested. (P 330, 332) Defense rested and motioned at the end of it’scase to dismiss “each and every count of this indictment for failure to prove guilt beyonda reasonable doubt under the law.” Defense motions were denied by the court. (P 331-333)

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The court submitted two counts of Murder in the Second Degree for each of thetwo victims, along with one count of Criminal Possession of a Weapon in the SecondDegree in the alternative, and one count of Criminal Possession of a Weapon in theThird Degree, in the alternative. (P 335, 339) The defendant wanted a circumstantialevidence charge for the entire case, however, over the defense objection, the courtlimited that charge only as to count two, for Steven Hewitt. (P 336)

Defense did not want a manslaughter charge and defense did not want anidentification, what he termed a Daniel charge. (P 337)

Deliberations, Verdict and Sentencing

The trial was adjourned to February 14, 1989. Summations were given at thattime. The court gave it’s charges on the law to the jury. There were no exceptions bythe People. There were two exceptions by the defense. (P 447-448) There were noother requests to charge. (P 449) Jurors began their deliberation at 1:05 pm. (P 450)The jury came back to the courtroom at 5:35pm. They had not reached a verdict. Theywere taken to dinner at 5:38 pm and then sequestered at a hotel. (P 459, 460)Deliberations ceased until jurors were back in the jury room on the morning of February15, 1989. (P 460)

On February 15, 1989, the jury had a note requesting explanation of murder inthe second degree and manslaughter. They entered the courtroom at 12:15 pm. Thecourt read the charge of Murder in the Second Degree. The court also gave the PenalLaw definition of Manslaughter in the First Degree. (P 461-463) The forepersonindicated in response to the court’s question that the reading by the court answered thejury’s questions. The jurors left the courtroom at 12:20 pm to continue deliberations. (P 464) Defense counsel took exception to the court’s charge because the court did notuse the phrase “beyond a reasonable doubt, in any fashion at all.” The court noted theexception. (P 464)

When the court reconvened for the afternoon, it received the jury’s note that averdict had been reached. The jurors were brought into the courtroom at 2:25 pm andthe court took the unanimous verdict of conviction on counts one and two. The jurorswere polled. Jurors were discharged and left the courtroom at 2:30 pm. (P 465-468)Defense reserved post verdict motions for sentence day. (P 468-469) The courtadjourned the matter to March 9, 1989 for sentencing. (P 469)

At sentencing on March 9, 1989 no motions were made by the defense.Statements were made by the ADA, relatives of each victim, the defense attorney tomitigate sentencing and by defendant who maintained his innocence. Defendant wassentenced to two consecutive terms of 20 years to life. He was informed, by the clerk ofthe court, of his right to appeal. (P 2-8)

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Conclusions of Law

All of the witnesses who testified at the hearing, appear to have been known tothe defendant at the time of trial. It is likely that defendant’s attorney at the time likelyhad strategic reasons for not putting on some of the witnesses as they may have beendeemed too biased, were drug addicted and had prior records.

Alibi

However, alibi notice was only served for one of the witnesses and she was notcalled to testify. Alibi notice should have been served for other potential alibi witnesses.Most certainly, alibi notice should have also been served for Lisa White who wasinterviewed by the police in 1988 at the time of the NYPD investigation of this matter.

The issue of alibi here is evaluated in consideration with defendant’s freestanding claim of actual innocence and his claim of ineffective assistance of counsel.The issue was not brought up in defendant’s direct appeal and there is no proceduralbar as it dehors the record. CPL §440.10(2)(b); People v DeLarosa, 287 AD 2d 735(App Div 2nd Dept 2001)

An alibi is a defense, basically asserting that the defendant could not havecommitted a crime because he was not at the scene, but elsewhere during the time ofthe commission of a crime.

As aforementioned, copies of NYPD 911 sprints of phone calls show a numberof calls were made during the 10 pm to 10:25 pm hour reporting shots heard at thelocation of the homicide on Gates Avenue in Brooklyn.

A copy of his death certificate shows that Steven Hewitt died at the hospital at11:22 pm. Fitzgerald Clarke died at the scene. There is no time indicated on Clarke’sdeath certificate for time of death. Police reports and testimony thereto generallypinpoint a time of 10:15 for the shootings.

While pursuant to statute, CPL §250.20, defendant must serve alibi notice in atimely fashion in response to a demand by the People, the court has discretion to allowa late notice of alibi. Indeed the alibi notice that was served here for Lanette was late.

An alibi witness may also be called by the defense without having previouslyserved such alibi notice, and again, the court has discretion whether to allow it. Ifallowed, the People may demand time to prepare reciprocal discovery and in such acase the statute allows the court to grant an adjournment of up to three days.

Here, defense counsel did not serve alibi notice for all alibi witnesses nor did he

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seek to have other alibi witnesses testify without such notice.

Once defendant puts in his defense of alibi, he still has no burden of proof.People v Wintje, 68 NY 2d 637 (Ct of App 1986)

It is the prosecution who bears the responsibility, as in all other respects, toprove its case beyond a reasonable doubt. People v Peterson, 96 AD 2d 871 (App Div2nd Dept 1983)

With respect to alibi, the entire burden is on the People to disprove defendant’salibi beyond a reasonable doubt. People v Campbell, 70 NY 2d (Ct of App 1987)

A defendant who exercises their constitutional right to testify may also provideevidence of alibi without being bound by the statutory requirement of alibi notice. CPL§60.15; People v Rosado, 153 Misc 2d 477 (Sup Ct Bx Cty 1992)

It is clear, from their testimony at the hearing, that had both Ms. Holmes and Ms.White testified or even if only Ms. White had testified it would have impacted thedecision of the jury in favor of the defendant, since they both placed defendant withthem during the time of the murders.

But for the insistence that Harley Young could not have witnessed the murders,this court is constrained to discount Vivian’s testimony, primarily because of herrecollection regarding the time she was at the location and heard the shots. By hertestimony the murders would have occurred between 6:00pm and 6:30 pm. Young, whosubstantially corroborates Vivian’s testimony, in that he was there with her, places themat the location as early as 5 pm stating that they were there until 10pm yet he does notexplain what defendant, or anyone else, was doing for all of those hours.

Also, early in her testimony, Vivian stated she copped drugs but later in responseto a question from the court, she stated that at the time she heard the shots she hadnot taken any drugs yet. Whether or not she had ingested any drugs at that time, shetestified that it would not have impaired her recollection.

Young’s trial testimony is especially troubling as he appeared to have perjuredhimself on the stand by saying he did not initially tell Cammarata that he did not see theshooting. It is conceivable, and their testimony supports the inference, that Vivian andYoung was at the drug den together. Based on Vivian’s testimony neither of them sawwho did the shooting and neither of them saw defendant at the time of the shooting.

However, Vivian Rivera’s testimony speaks for itself, and as such cannot beconsidered alibi testimony. Defendant presented the affidavits of Vivian along with“Papo” in support of his motion claiming new evidence.

Further, Vivian’s testimony only serves to rebut that of Young’s, regarding what

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he claimed he saw, but if she had given the same testimony at trial as she gave at thehearing it would likely, have served to benefit the defendant since Young’s testimonycorroborated her testimony to the extent that they were together. And, Young placedthem together at primary points of Vivian’s testimony. His testimony deviates where hesays he saw the shooting.

However, based on Vivian’s testimony, even if they were both there at the time ofthe shootings, if Vivian did not see the shooting, it is reasonable under the facts andcircumstances to believe that Young did not see the shooting either. This court is notmaking such determination as such factual determination would be for a jury at trial.

Pursuant to the Court of Appeals in People v Baldi, 54 NY 2d 137 (Ct of App1981) and the more recent Second Department case of People v Hamilton, 115 AD 3d12 (2014) defendant has established his claim of ineffective assistance of trial counselwith respect to defendant’s failure to serve alibi notice for Lisa White.

While the People point out what it believes are some inconsistencies betweenthe testimonies of Lisa White, Lanette Holmes and the defendant 50concerning whocalled who and the time Lanette was said to be at work versus the time Lisa called herto let her know defendant was at Lisa’s house; it is indisputable that the defense failedto serve alibi notice for Lisa White.

And, it is clear that they all place the defendant in Queens at the time of thehomicides. Even Eileen Garcia’s testimony does not place the defendant in Brooklyn atthe time of the murders as she testified at trial that the defendant left her housebetween 7 and 7:15 and 20 minutes hence she saw his car back in the area.

Defendant says he left Eileen’s got in his car, which was not working well, cameback parked it and took a train to Lanette’s in Queens. He stated as such at the tim e ofthe incident to Mahony 51 and he testified to this at the CPL 440 hearing.

The evaluation of any inconsistencies, as with the testimonies of the policeofficers in this case and other witnesses, would be for the finder of fact at trial.

At trial, defendant’s other girlfriend, Eileen (Lilly) testified for the People.Although the People argued in closing that she placed defendant at the scene at thetime of the shootings, Eileen actually testified that the defendant was with her at about7 pm to 7:15 pm when he left in his car to go home and she did not hear the shooting

50 People’s Post-Hearing Memorandum of Law in Opposition to Motion to VacateJudgment dated August 7, 2014 P 85-89.

51 Also see, Phillip Mahony’s testimony, Transcript of Pre-Trial hearing, dated February6, 1989.

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until around 10 or 11 pm. 52

Defendant testified that he did not go home, but went to his other girlfriend,Lanette’s house. It is not inconceivable that he did not tell Eileen he was going toLanette’s house from her house. It is clear from Eileen’s trial testimony that defendantwas not with her at the time of the homicides.

Here, defendant has shown that the testimony of Lanette and Lisa would haveserved to establish his alibi defense.

Defendant has maintained his CPL§ 440 burden establishing by apreponderance of the evidence that trial counsel was ineffective for not serving alibinotice for alibi witnesses. CPL 440.30(6)

Newly Discovered Evidence

In 1900 the New York State Court of Appeals ruled that new evidence must besuch that it “would probably change the result if a new trial were granted, or where thereis not sufficient proof that it could not have been discovered before the trial by theexercise of due diligence.” People v Priori, 2 Bedell 459 (Ct of App 1900)

Defendant has made a prima facie showing of entitlement to a hearing on theissue of newly discovered evidence. People v Clifford Jones, 24 NY 3d 623 (Ct of App2014)

Pursuant to CPL § 440.10(1)(g) on a motion to vacate a judgment of conviction,newly discovered evidence may only be considered if it satisfies six enumerated criteria: Newly discovered evidence:(1) must be such as will probably change the result if a new trial is granted;(2) must have been discovered subsequent to the trial;(3) must be such as could not have been discovered before trial by the exercise of duediligence;(4) must be material to the issue;(5) must not be cumulative, and (6) must not be merely impeaching or contradictory to former evidence. Defendant mustprove such by a preponderance of the evidence. CPL §440.30(6); People v Tankleff, 49AD 3d 160 (App Div 2nd Dept 2007); People v Salemi, 309 NY 208 (Ct of App 1955)

Defendant, in his initial submission here, characterized the aforementioned

52 Trial Testimony February 8, 1989 P 66 to 68.

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witnesses as newly discovered evidence with the accompaniment of their affidavits insupport of his motion, however they were known to the defendant during the time of histrial and thus cannot be considered newly discovered evidence.

In his later submission, defendant characterizes the information regardingDetective Scarcella’s alleged propensity to fabricate confessions, as newly discoveredevidence and something he could not have known about at the time of his trial.

However, defendant maintains his innocence and that he did not provide astatement to Detective Scarcella. Furthermore, defendant testified at the hearing thathe knew something was up or not right regarding Detective Scarcella and DetectiveScarcella testified for the prosecution at defendant’s trial whereupon defendant had theopportunity on appeal and in his prior motions to the court to bring up that issue.

Defendant’s allusion to the multiple cases that were or are being investigated bythe Kings County District Attorney’s Office wherein Detective Scarcella was involved,while troubling as a whole and provides context for the type of pattern and practice thedefense attempted to establish, is not wholly dispositive in this instance. 53

However, there is a distinction between what defendant knew at the time and thelater information that would have led to him establishing that Scarcella may have had apropensity to embellish or fabricate statements.

While the decision in this matter was pending, People v Hargrove, Kings CountySupreme Court was decided on April 14, 2015 which found “new evidence of DetectiveScarcella’s wrong doing significant” on the issue of reliability of the identification madeby one witness. In that case, the newly discovered evidence required a new trial.

Here it is both the new evidence of Scarcella’s propensity to embellish or

53 A number of convictions have been overturned in those cases, some dealing withrecantation of eyewitness testimony, forensic evidence, and other evidence sufficient to believedefendants in those matters were wrongfully convicted. In particular, defendant cites the case ofDavid Ranta, who also said that Detective Scarcella fabricated his confession. Though that wasnot proven, and there was other evidence sufficient to show that Mr. Ranta was wrongfullyconvicted; it was overwhelmingly found that heavy handed police tactics had implicated thewrong man. To that end, defense in this matter provided the court with an Email from the formerDistrict Attorney that stated, “During the course of the Ranta investigation, CIU Chief JohnO’Mara uncovered some questionable conduct by former NYPD Detective Scarcella. Inannouncing our decision to release Mr. Ranta, we made it clear that the decision was made inpart because of the conduct of Detective Scarcella.”http://www.nytimes.com/2014/02/21/nyregion/man-framed-by-new-york-detective-to-get-6-4-million-without-filing-suit.html?_r=0

The Kings County Conviction Integrity Unit under District Attorney Hynes and continued byDistrict Attorney Thompson also investigated defendant’s instant case.

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fabricate 54 as well as the lack of alibi notice for Lisa White that necessitates a new trial.A motion to vacate on the basis of newly discovered evidence is addressed to thesound discretion of the court. CPL 440.10 (1); People v Bryce, 88 NY 2d 124 (1996)

This issue could not have been raised in a direct appeal as they are significantnew facts and are appropriately raised in this CPL 440 motion. Defendant here hasestablished the newly discovered evidence by a preponderance of the evidence.

However, that, in and of itself, does not provide this court with clear andconvincing evidence that defendant did not commit the murders.

While not directly on point regarding this matter, defense cites People v Marzed,161 Misc 2d 309 (Sup Ct NY Cty 1993) in its supplemental memorandum of law assupport that the new evidence is “devastating to Scarcella’s credibility”. However inMarzed, defendant moved to set aside the verdict when he learned that the policeofficer who testified had been prosecuted for perjury in an unrelated case. Here, thenew evidence is a bit murky as Scarcella has not been prosecuted for perjury in anycases.

It is notable that the testimony here of Mahony did not corroborate that ofScarcella’s. Mahony specifically testified that the defendant did not confess to him andhe did not know where the “orphan” statement came from.

Furthermore, despite Scarcella’s public statements about having confessionsvideotaped, here there is no evidence that defendant’s statements were video taped oraudio taped and defendant did not repeat the statement in Scarcella’s DD5 to the casedetectives nor does defendant’s signature appear on the statement.

While Mahony specifically states that he took statements from defendant,reflected on his DD5, dated January 11, 1988, that do not implicate defendant in thesemurders, Mahony seemed to have an independent recollection that the one “orphan”statement in his handwriting that would have implicated defendant was not taken fromdefendant.

The totality of circumstances, regarding the “orphan” statement and thestatement in the Scarcella DD5, provide this court with, a reasonable probability that thealleged confession of defendant was indeed fabricated.

Insistent that the defendant would have been convicted without Scarcella’sstatement, the prosecution here relies more heavily on the testimony of Harley Young, a

54 In addition to the other cases cited, that of Derrick Hamilton, Robert Hill, AlvenaJennette and Darryl Austin, prosecuted around the same time as this case, demonstrates atroubling pattern and practice. People v Hargrove, Supreme Court, Kings County, April 14, 2015

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person known by the prosecution to have had contact with the criminal justice system.55

Had alibi notice been served for Lisa White, who had no contacts with thecriminal justice system, her testimony would have refuted that of Harley Young’smaking it probable that the result in this case would have been different. [see CPL440.10(g)]

Actual Innocence

Pursuant to People v Hamilton, 115 AD 3d, 12 (App Div 2nd Dept 2014)holding that a freestanding claim of actual innocence is cognizable in New York, thisdefendant has also made a prima facie showing sufficient to warrant a full exploration ofhis actual innocence claims.

In support of his claim, as aforementioned, defendant submitted affidavits of alibiwitnesses and alibi witnesses testified at this hearing. People v Jones, 115 AD 3d (AppDiv 2nd Dept 2014)

Also, on a claim of actual innocence, new evidence may be considered whetheror not it satisfies the aforementioned Salemi factors. People v Bermudez, 25 Misc 3d1226 [A] (2009)

However, the issue at the conclusion of the hearing granted on defendant’sactual innocence prong is whether defendant has proved his case by, the standard setin Hamilton of, clear and convincing evidence.

The standard of clear and convincing requires reliable evidence which makes ithighly probable that the alleged activity, in this case, was not committed by thedefendant. People v Dominie, 42 AD 3d 589 (App Div 3rd Dept 2007)

Defendant posits that the newly discovered evidence of Detective LouisScarcella’s involvement in other cases leading to overturned convictions along with hisinability to recollect why he took the actions he took in this case and did not f ollowstandard procedure is evidence that Detective Scarcella fabricated the defendant’s

55 Subsequent to the CPL 440 hearing, the prosecution informed the court that HarleyYoung had an arrest in New York State prior to the underlying trial in 1989, however the recordis sealed. The People did not inform the court whether Young had any criminal justice contactselsewhere such as Florida, where Young resided. The People also did not convey whether Younghad any contact with the criminal justice system in the recent aftermath of defendant’s trial.

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statement. And, that because of such fabrication, this court should find for thedefendant.

However, defendant here has not shown that what Detective Scarcella may havedone, had any bearing on his actual innocence.

“At a hearing all reliable evidence, including evidence not admissible at trialbased upon a procedural bar–such as the failure to name certain alibi witnesses in thealibi notice—should be admitted.” People v Hamilton, 115 AD 3d 12 (App Div 2nd Dept2014)

However, the evidence and witnesses presented by the defense did not meet thestandard of clear and convincing evidence for actual innocence whereby the indictmentwould be dismissed pursuant to CPL 440.10(4).

The one witness who might have provided such evidence if he were here totestify and recant his trial testimony is that of Harley Young. However, Mr. Young isdeceased.

“Mere doubt as to the defendant’s guilt, or a preponderance of conflictingevidence as to the defendant’s guilt, is insufficient, since a convicted defendant nolonger enjoys the presumption of innocence and in fact is presumed to be guilty.”People v McKenzie, 2014 WL503572 (Sup Ct Bx Cty 2014)

“Actual innocence means factual innocence, not mere legal insufficiency ofevidence of guilt and must be based on reliable evidence which was not presented atthe trial”. Citing Hamilton, See, People v Lobban, 2014 WL 1236884 (Sup Ct Kings Cty2014)

Other evidence submitted by defendant such as the possibility that a Jamaicangang called the “Renkers” murdered Clarke and Hewitt is speculative, lacking inprobative value and does not constitute clear and convincing evidence. People vSchultz, 4 NY 3d 521 (2005)

Notwithstanding that, the trial testimony of Young provides a great deal ofinconsistency as to whether Young actually saw the defendant shoot anyone. Coupledwith that is the fact that a gun recovered that is tied to the murders did not actuallyimplicate the defendant in any way.

Although the prosecution argues that they would have convicted the defendantwith Young’s testimony standing alone, and that even if the testimony aboutdefendant’s statement was false, “there is no reasonable likelihood that this false

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testimony affected the jury’s verdict.”56 However, the fact that a decorated sitting NYPDDetective, of senior status, testified that he took a statement from the defendantimplicating the defendant in two murders certainly served to bolster Young’s testimony.In addition, the fact that the jurors asked for a read back of Scarcella’s testimony aboutthe statement leads to the inference that they gave his testimony great weight.

From the hearing testimony of the former detectives on this case, it is notable,that Mahony stated he did not remember asking Scarcella to interview the defendantafter he had already done so, while Scarcella apparently, independently,57 remembersthat Mahony specifically asked him to interview the defendant.

Scarcella testified that he was not in the room when Mahony interviewed thedefendant. Mahony says other officers on the case was in and out the room. Defendantrecalls that Scarcella was in the room when he was being interviewed by Mahony.However, when Scarcella interviewed the defendant there is no doubt that no one elsewas in the room with them. Both defendant and Scarcella agree on this point.

It is noted that the prosecution’s assertion here is inapposite to that at trial w herethe ADA, during summation, pressed jurors to believe the testimony of DetectiveScarcella as truth and that if he were going to make up a statement, “he certainly couldhave done a better job than this. If he was going to make something up, members ofthe jury, why not come in here, a handsome man, come in here and sit down and say, ‘Iadvised this defendant of his rights, and he said to me that he shot these two guysbecause they deserved to die.’ If he was going to make up a statement, certainly thatwould have been a better statement to bring before this jury, certainly.” 58

Mr. Scarcella’s own testimony about the statement he took, that it was notvideotaped, not signed by the defendant, not done in accordance with the usual andcustomary police procedures, and that he lost or destroyed his handwritten notessometime before the trial in 1989 while Mahony had preserved his handwritten notes(copies of which were introduced in evidence at this 2014 hearing), is particularlytroubling and causes serious doubts.

If the testimony of Mr. Scarcella were perjured. Jurors would have been leftprimarily with the testimony of Harley Young. Mr. Young’s testimony, riddled with

56 People’s Supplemental Post-Hearing Memorandum of Law in Opposition to Motion toVacate Judgment dated January 20, 2015, P 13.

57 As aforementioned, Scarcella indicated he had no independent recollection of the caseand testified according to the documents he reviewed. There was no indication on any of thedocuments in question that Mahony asked Scarcella to interview the defendant.

58 Trial Transcript, February 14, 1989 P 393 L 9-25; P 394 L 2-7.

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inconsistencies that were dealt with at trial and known to the defendant at the time ofhis appeal, speaks for itself. However, this court, in evaluating defendant’s actualinnocence claim, has also reviewed the trial transcripts.

The ADA also closed on this point, admitting to the jurors that the case againstdefendant was circumstantial, that there was no testimony from Harley Young oranyone else that the defendant shot Hewitt. 59

According to Mahony’s handwritten notes, at the time of the incident Young toldhim that he did not see the defendant with a gun, yet at the time of trial, Young testifiedthat he saw the defendant shoot his brother Clarke. In addition, at the scene on January11, 1988, Young told Officer Cammarata that he saw defendant shoot both Hewitt andClarke, but at trial Young did not testify that he saw defendant shoot Hewitt.

Ineffective Assistance of Counsel

The People argue that this court should deny defendant’s ineffective assistanceof counsel claim because it did so in it’s decision of June 19, 2013 which granted thishearing on defendant’s current claim of actual innocence and such hearing wasenlarged to include any relevant claims thereto.

However, in that decision, this court decided the issue primarily on proceduralgrounds and held that “there is no basis for this court to make such determinationwithout the testimony of Mr. Nathanson or that presented by his case file, regarding thisdefendant”, citing People v Cotto, 259 AD 2d 88 (App Div 1st Dept 1999) “because trialcounsel, the only person who could have provided any material information not alreadybefore the motion court was deceased.”

In a post-conviction CPL 440 motion claiming ineffective assistance of counselthe court can properly look into defendant’s claims existing outside of the record.People v Brown, 45 NY 2d 852 (1978)

This is so even if some of the facts and circumstances relied upon may bediscernible from the record on appeal. People v Hoyte, 273 AD 2d 48 (App Div 1st Dept2000)

Here, the alibi issue itself is an on the record matter, since notice was served forLanette.

However, defense counsel’s omission in not serving alibi notice for Lisa is an offthe record matter which could not be found by looking at the record before the court asthere is no mention of Lisa in any evidence or testimony that was brought before the

59 Id, P 396

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court during any stage of the proceedings.

The court has said in DeLarosa, that a claim of ineffectiveness for failure toserve a notice of alibi is an off-the-record matter. In that case, the court remanded for ahearing to determine the possible strategic reasons of trial counsel.

The issue of alibi is a claim relevant to the issue of actual innocence andpursuant to the hearing a fuller exploration was undertaken by this court which revealedthat defense counsel had not served alibi notice for other alibi witnesses.

This is not a fact that can be disputed by Mr. Nathanson, were he here to testifysince the record reflects that only one alibi notice was served. This fact is attested to bythe People. As such, this court reverses that portion of its prior decision rendered priorto the CPL 440 hearing.

Alibi notice was only served for Lanette, now Mrs. Holmes, and as she was thedefendant’s girlfriend in 1988, defense counsel’s strategy may have been not to call herbecause of her perceived bias and because he thought there was overwhelmingreasonable doubt in this case.

However, had the jurors heard the testimony of Lisa White who had no suchobvious bias, as alibi for defendant, such testimony would have served to providereasonable doubt. Lisa’s testimony here is properly considered alibi testimony. People vMilazo 18 AD 3d 1068 (App Div 3rd Dept 2005)

Had Lisa testified, Lanette would have also had to testify. People v Dalton, 38NY 2d 222 (Ct of App 1976)

Defense counsel at trial should have served alibi notice for all possible alibiwitnesses, especially that of Ms. White. Defendant has shown that he was severelyprejudiced by this omission and such omission serves to substantiate defendant’sineffective assistance of counsel claim.

Further compounding the dilemma is the fact that appellate counsel should haveknown of the lack of alibi notice for Ms. White and should have raised it in defendant’sdirect appeal. Appellate counsel was ineffective for failing to raise the alibi issue indefendant’s direct appeal. 60

60 In defendant’s Coram Nobis application, People v Holmes, 55 AD 3d (App Div 2nd

Dept 2008) the issue of ineffective assistance of appellate counsel was raised regarding thefailure to assert that defendant’s trial counsel was ineffective because of failure to properlyinvestigate the case, and to call and locate alibi witnesses, among other things. The court denieddefendant’s application and permission to appeal was denied. People v Holmes, 12 NY 3d 758(2009)

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“A single substantial error which seriously compromises a defendant’s right to afair trial will constitute ineffective assistance of counsel.” USCA Const. Amend 6;People v DeLarosa, 287 AD 2d 735 (App Div 2nd Dept 2001)

As the court in Milazo state, the failure of a defendant’s trial counsel to timely fileand name alibi witnesses in the notice of alibi is grounds for ineffective assistance ofcounsel “if it precluded the presentation of an alibi defense which could have changedthe outcome of the case.”

In addition, as was the case in Milazo, in this matter, as Ms. White was notrelated to defendant, had no perceived bias and had not been convicted of a crime,there was no strategic or legitimate explanation for counsel’s failure to pursue her alibias a defense.

Here, it is reasonable to conclude that the alibi testimony of Lisa White couldhave changed the outcome of the case. In that regard, defendant has demonstratedthat he was not provided with meaningful representation. People v Baldi, 54 NY 2d 137(Ct of App 1981)

Furthermore, defendant has proved by a preponderance of the evidence that trialcounsel was ineffective as alibi notice was not served for several witnesses. CPL440.30 [6]

The remedy for ineffective assistance of counsel is to grant a new trial. People vOliveras, 21 NY 3d 339 (Ct of App 2013)

Additionally, after a careful review of the record, the papers submitted, theproceedings before this court, and taking into consideration the totality of facts andcircumstances with an application of an interest of justice analysis; it is this court’sopinion that the cumulative effect of numerous prejudicial errors committed during thecourse of the underlying trial tends to support defendant’s contention that he was notgiven a fair trial.

Our legal standard, of proof beyond a reasonable doubt, remains as highly validtoday as it was in 1897 when our highest state court enunciated the following:

“A reasonable doubt is not a mere whim, but it is such doubt asreasonable men may entertain, after a careful and honest review andconsideration of the evidence in the case. It is a doubt founded in reasonand coming from reason, or a doubt coming from reason, and whichsurvives reason.” People v Barker, 7 EH Smith 111 (Ct of App 1897)

Therefore, defendant’s motion is denied in part and granted in part to the extentthat a new trial is ordered and it is further,

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ORDERED, that this matter is remanded back to the trial court.

This constitutes the Decision and Order of the Court.

Dated: May 29, 2015Kings County, New York

_________________________ Desmond A. Green, J.S.C.

Notice of Right to Appeal for a Certificate Granting Leave to Appeal

Defendant is informed that his right to appeal from this order determining the withinmotion in not automatic except in the single instance where the motion was made underCPL 440.30(1-a) for forensic DNA testing of evidence. For all other motions under CPLarticle 440, defendant must apply to a Justice of the Appellate Division for a certificategranting leave to appeal. This application must be filed within 30 days after your beingserved by the District Attorney or the court with the court denying your motion.

The application must contain your name and address, indictment number, the questionsof law or fact which you believe ought to be reviewed and a statement that no priorapplication for such certificate has been made. You must include a copy of the courtorder and a copy of any opinion of the court. In addition, you must serve a copy of yourapplication on the District Attorney.

APPELLATE DIVISION, 2ND DEPARTMENT45 Monroe PlaceBrooklyn, New York 11201

KINGS COUNTY SUPREME COURTCriminal Appeals320 Jay StreetBrooklyn, New York 11201

KINGS COUNTY DISTRICT ATTORNEYAppeals Bureau350 Jay StreetBrooklyn, New York 11201

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