DECISION AND ORDER On June 14, 2013, defendant, Gerald Vaughn, a Captain and Special Assistant to the Deputy Chief of the New York City Department of Correction (DOC), along with nine co-defendants (all of whom were fellow correction officers of different rank) were charged with attempted gang assault in the first degree and related charges stemming from the July 11, 2012 assault of Jahmal Lightfoot, an inmate in custody who was housed on Rikers Island at the time of the incident. On June 10, 2016, after a joint trial of nine of the ten defendants, of which six chose to be tried by a jury and three, including defendant Vaughn, chose to be tried by the Court, defendant Vaughn was found guilty of one count of attempted gang assault in the first degree, attempted assault in the first degree, assault in the second degree, falsifying business records in the first degree, and two counts of official misconduct.1 On September 16, 2016, after reviewing submissions and hearing from all parties, the Court sentenced defendant Vaughn to concurrent determinate sentences of five and one-half years, with three years post-release supervision on the attempted gang assault and attempted assault in the first degree charges; four years, with two years post-release supervision on the assault in the second degree charge; and definite one year sentences on each of the remaining charges. At sentencing, the Court noted the brutality of the beating, the severity of Lightfoot’s injuries, and the dereliction of duty with respect to all of the correction officers, particularly as the case involved high-ranking officials in the DOC (defendant Perez was Chief of Security of the entire DOC) and members of an elite squad within the DOC (the Emergency Services Unit – ESU). With respect to each of the eight defendants who were convicted, the Court found defendants Perez and Vaughn most culpable due to their rank and for having “put this crime in motion and for having ensured its continuance.” The Court opined the evidence established that Vaughn: contributed to the atmosphere of potential violence by making abusive and threatening comments to the inmates; was instrumental in carrying out Chief Perez’s unlawful order to assault Lightfoot; and was aware an assault was taking place and did nothing to stop it.2 For reasons not explained by defendant in his instant motion, in the over three years since defendant’s conviction, defendant apparently has not filed a direct appeal of his conviction with the Appellate Division, First Department. However, co-defendants Rivera, Parker, Parra, Rodriguez, Frierson and Maynard did so appeal and their convictions were affirmed by the Appellate Division. See People v. Rivera, 167 A.D.3d 550 (1st Dept. 2018). The Court found that the evidence at trial against these defendants was not only legally sufficient and not against the weight of the evidence, but that it was overwhelming. Id. at 551. The Court noted that there was no basis for disturbing the credibility determinations made by the respective fact-finders in the joint jury/nonjury trial, and that the triers of fact properly rejected defendants’ justification defense which was predicated on written reports by correction officers to the effect that Lightfoot was the initial aggressor and was swinging a knife at the officers. Id. Now, defendant moves, pursuant to C.P.L. 440.10 to vacate his conviction and dismiss the indictment, or, in the alternative, for a hearing, based upon three affidavits from individuals who were not called as trial witnesses by defendant. Defendant claims that these three affidavits — one from an inmate who avers that he was present when Perez gave the order to assault Lightfoot; a second from a warden who was present on Rikers Island on the day of the incident; a third from a paralegal who interviewed an inmate who stated to the paralegal that he was present when Perez gave the order: 1) establish that he is actually innocent of the crimes for which he was convicted; 2) constitute newly discovered evidence; and 3) provide the basis for an ineffective assistance of counsel claim. As will be detailed below, these three affidavits fall woefully short of establishing any of these claims rendering these claims meritless; therefore, defendant’s motion is denied without a hearing. The Evidence at Trial At the three-month-long trial, fifteen witnesses testified for the People and approximately one hundred exhibits were introduced into evidence by the People; the defense presented no witnesses or any other evidence. The People’s case included testimony from Lightfoot and another inmate, Jahmal Brooks who testified as to what occurred before, during, and after the assault and the role of each officer in the assault. In addition, there was video footage taken from the many video surveillance cameras located throughout the jail that corroborated much of Lightfoot’s and Brooks’ testimony with respect to what happened prior to and after the assault (however, there were no cameras in the room where the assault occurred). Most of the remaining witnesses were called to satisfy the People’s burden of disproving defendants’ justification defense in which they claimed in Use of Force (UOF) reports that they were required by DOC regulation to file, that their actions were justified due to Lightfoot’s alleged possession of a knife-like instrument, which he allegedly swung at them when they attempted to search him. The evidence at trial established that prior to the assault of Lightfoot in July 2012, there had been a significant number of inmate-on-inmate slashings at Rikers that year, and as a result, co-defendant Perez, had been put in charge of a task force to curb the violence on Rikers. Early in the day on July 11, 2012, a slashing between two inmates (Gilliam and Houser) occurred in the shower of Housing Unit 3B in the George R. Vierno Detention Center (GRVC), which was the same facility in which Lightfoot was housed.3 As a result of the slashing, several high-ranking officials, including co-defendant Perez and defendant Vaughn responded to GRVC and all of the inmates at GRVC were ordered back to their cells. All of the inmates in Housing Unit 3B were strip-searched and all of their cells were extensively searched for contraband. After getting dressed, each inmate, including Lightfoot, was taken out of their cell and placed in a specialized chair designed to find weapons secreted in the rectum and mouth. After passing these inspections without incident, the inmates were then lined up outside their cells to be taken to the intake area of GRVC to again be searched by ESU officers.4 Lightfoot and fellow inmate Jahmal Brooks were in the third group of ten inmates taken to the intake area. As they were being escorted in a line through a corridor leading to the intake area, each inmate was rear-cuffed and made to pass through a magnetometer, which Lightfoot and the other inmates passed through without incident. As Lightfoot’s line of inmates continued through the corridor, they approached co-defendant Perez and defendant Vaughn. According to both Lightfoot and inmate Brooks, defendant Vaughn stopped the line of inmates and began yelling and cursing at the inmates. Vaughn yelled, “all you mother fuckers wanna do is cut in my house…y’all the baddest motherfuckers? I’m the baddest mother fucker. Who the fuck want to fight? If you want to fight, step off the line. I’m tired of this shit.” Both Lightfoot and Brooks further testified (and the video footage corroborated) that as Vaughn was threatening the inmates, co-defendant Perez was next to him, leaning against a wall opposite the line of inmates holding a walkie-talkie. When Lightfoot made eye contact with co-defendant Perez, Perez told Lightfoot to look forward. Chief Perez then moved forward towards the line of inmates and pointed his walkie-talkie at Lightfoot and said, “we got a tough guy, kick his fucking teeth out.”5 Co-defendants Pollard, Richard, and Parker, all members of the ESU, also were present in the corridor when Chief Perez gave the order to assault Lightfoot. According to inmate Brooks, defendant Vaughn told the ESU officers to “tighten his ass up” at intake, which Brooks interpreted to be an order for a beat down of Lightfoot.6 The group of ten inmates, including Lightfoot and Brooks, were then escorted to the intake area and placed in one of the large holding pens with other inmates who already had been escorted there and were ordered to sit along benches at the rear of the holding pen. According to Lightfoot, Brooks, and the video footage, at approximately 10:42 p.m., defendant Vaughn approached the holding pen and pointed in the direction of Lightfoot. Vaughn, co-defendant Parker and other ESU officers then entered the holding pen. Co-defendant Parker then escorted Lightfoot, who was still rear-cuffed, to the search pen. According to inmate Brooks, defendant Vaughn then ordered the remaining inmates in the holding pen to stand up and face the wall so that they were turned away from the search pen. Defendant Vaughn exited the holding pen and engaged in a brief conversation with Chief Perez. At 10:43 p.m., co-defendant Parker and Lightfoot entered the search pen. According to Lightfoot and the UOF reports, co-defendants Rodriguez, Rivera, Parra and Pollard were already inside the search pen when the officers surrounded Lightfoot and ordered him to face the wall. Lightfoot was then uncuffed and ordered to put his hands behind his head and turn around when suddenly one of the five co-defendants punched him and another tackled him. As Lightfoot lay on the floor in a fetal position with his hands covering his face, the officers kicked and punched him. When one of the kicks landed in his groin area, Lightfoot dropped his hands from his face and the five co-defendants, who were wearing heavy-duty boots, began kicking Lightfoot in the face. For the next three minutes Lightfoot was repeatedly punched and kicked. Inmate Brooks testified that from the holding pen he could hear the officers beating Lightfoot and Lightfoot’s muffled groans. According to video footage of the intake area outside the search pen, while the assault was occurring inside the search pen, defendant Vaughn was standing outside the search pen with co-defendants Maynard and Frierson. During this time, Vaughn, who appeared to be talking on his cell phone, looked up from his phone in the direction of the search pen as if he heard something inside the search pen. In addition, during this time period the video footage showed co-defendant Perez intercepting the captain in charge of the intake area and escorting her away from the search pen. At approximately 10:46 p.m., the assault ended and Lightfoot was rear-cuffed and taken by co-defendant Maynard from the search pen to the GRVC medical clinic. At the clinic, Lightfoot told medical staff that he had been kicked and punched in the face and the doctors who treated Lightfoot observed that he had severe facial trauma and that his right eye was swollen shut. The following morning, due to the severity of his injuries, Lightfoot was taken to Bellevue Hospital where he was examined. A CT scan revealed that the bones at the bottom of Lightfoot’s right eye and the cheek bones of the left side of his face were fractured. The treating physician testified that Lightfoot’s injuries were consistent with blunt-force trauma and multiple blows to his face, and that Lightfoot would likely have decreased sensation in his face for the rest of his life. The remainder of the evidence addressed defendant and co-defendants’ attempt to cover-up their actions and the People’s discrediting of defendants’ proffered justification defense — that Lightfoot possessed a shank, which he swung at the officers in the search pen. Although none of the defendants testified, the justification defense was placed in evidence via the UOF reports that the defendants were required to file, which were the basis of the false filing charges and thus introduced by the People. The UOFs filed by the five co-defendants who assaulted Lightfoot (co-defendants Parker, Parra, Rodriguez, Pollard and Rivera) each set forth the same basic narrative: once inside the search pen, Lightfoot was uncuffed and ordered to remove his prison garb so that he could be strip-searched. As he was removing his pants, a sharp metal object fell to the ground, which Lightfoot immediately picked up and began swinging at co-defendant Rivera. Lightfoot then ignored the officers order to “drop the weapon” and to “stop resisting.” Because Lightfoot failed to comply with the orders, co-defendant Rivera punched him several times in the face and torso and Lightfoot then “grazed” Rivera with the metal object, which resulted in a laceration to Rivera’s upper right arm. The officers then attempted to restrain Lightfoot’s arms and legs, but he continued to resist and swing the sharp object at the officers, even after he had been brought to the ground. Co-defendants Parra and Parker admitted to punching Lightfoot in the face several times. It was only after the officers secured Lightfoot’s arms and legs that he dropped the weapon and the officers were able to handcuff him.7 The evidence at trial established that the statements contained in each defendant’s UOF report were palpably false and debunked defendant’s claim that Lightfoot was ever in possession of a metal object on the evening of July 11, 2012. As detailed above, the People established that Lightfoot had been strip-searched thoroughly prior to being escorted to the intake area; that he had been placed on a special chair designed to detect weapons; and had passed through a magnetometer prior to being taken to the search pen where the assault took place, all without incident.8 In addition, the People established that the weapon that was allegedly recovered after the assault was never in Lightfoot’s possession.9 In this regard, the People called a DNA expert who testified that she swabbed the piece of metal and the tape wrapped around it for DNA analysis and comparison. The expert opined that had Lightfoot possessed and swung the weapon, she would have expected Lightfoot’s DNA to match the DNA found on the weapon; however, she found that Lightfoot was excluded as a contributor to the mixture of DNA found on the shank. Moreover, the actions of the co-defendants who were standing outside the search pen while the assault was occurring inside further discredited the defendant’s claim that Lightfoot was the initial aggressor with a weapon. Despite being only a short distance away and allegedly hearing their fellow officers yell from the search pen, which was covered by only a white sheet, to drop the weapon and stop resisting, none of the officers, including defendant Vaughn, attempted to investigate or to aid their fellow officers. Indeed, co-defendant Frierson, who was also outside the search pen while the assault was occurring inside, did not go inside the search pen and activate his hand-held camera, although it was his responsibility to record any uses of force that evening. Finally, the People showed that Lightfoot did not slash or graze co-defendant Rivera with a metal object during the assault. The video evidence established that in the immediate aftermath of the assault as Rivera exited the search pen after allegedly having been slashed by Lightfoot, none of his fellow officers exhibited concern or checked Rivera’s condition, and Rivera did not immediately report being slashed as per DOC regulations. Further, the doctor who treated co-defendant Rivera two hours after the incident testified that the only injury that Rivera sustained that evening was a small scratch to the back of his right tricep under his shirt sleeve, which was undamaged. Rivera never told the doctor that he had been cut by an inmate with a metal object, but instead Rivera reported that he did not know how the scratch had been sustained. The doctor concluded that Rivera’s scratch was not likely caused by someone cutting him with a small metal object. The Evidence presented in Defendant’s 440 motion Defendant submitted sworn statements from three individuals, including two inmates, Christian Rivera and Kenneth Campbell, who did not testify at trial.10 The Rivera Affidavit In pertinent part, Christian Rivera avers that he was an inmate housed in GRVC on the date Lightfoot was assaulted and that he was on the line of ten inmates to be searched that included Lightfoot. Rivera further avers that he heard the order for the officers to beat up Lightfoot, and that he “can definitively state” that defendant Vaughn did not give the order. Rivera also states that he never saw defendant Vaughn abuse anyone and that he was not promised anything or coerced into making his statement. The Hamilton Affidavit Derrick Hamilton avers that he is a paralegal (presumably working on behalf of motion counsel) who interviewed Kenneth Campbell, who is currently an inmate in custody in New York State prison, who was presumably present when the order was given to assault Lightfoot.11 Hamilton further states that Campbell told him that defendant Vaughn was yelling and screaming at the inmates, but Campbell “emphatically” told him that Vaughn did not give the order to assault Lightfoot. Although Hamilton avers that he believes that Campbell was forthright in his statement and had no ulterior motive, he also avers that Campbell told him that he would not cooperate and testify to his statement unless he was paid to do so. The Duffy Affidavit Edmund Duffy avers that on July 11, 2012, he was employed as a warden by the DOC and assigned to Rikers Island. Duffy further states that he was working that evening and responded to the building where the assault of Lightfoot took place, but prior to the assault of Lightfoot, he went to investigate the inmate-on-inmate slashing that had occurred earlier that day in Housing Unit 3B. Duffy further averred that when he later returned to the area where the assault of Lightfoot had taken place, he saw Lightfoot with facial injuries, which Duffy photographed, and Lightfoot told Duffy that he “didn’t deserve this.” Duffy said that he told investigators that he did not hear co-defendant Perez order the officers to “knock his teeth out,” though investigators attempted to get him to inculpate Perez. Finally, without specifying a date, Duffy stated that he never observed defendant Vaughn engage in conversation with ESU or Chief Perez. Conclusions of Law Although the issue has yet to be decided by the New York Court of Appeals, the governing law in New York is that CPL 440.10(1)(h) embraces a claim of actual innocence. See People v. Jiminez, 142 A.D.3d 149, 155 (1st Dept. 2016); People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014). To vacate a judgment based on actual innocence, defendant must demonstrate with clear and convincing evidence, which was not presented at trial, that he was actually innocent of the crimes for which he was convicted. See People v. Velasquez, 143 A.D.3d 126, 136 (1st Dept. 2016). To gain a hearing on an actual innocence claim, defendant must raise serious doubt about his guilt, or, at least, show such merit to his claim so as to warrant a fuller exploration by the court. See Jiminez, supra, 142 A.D.3d at 155-56, 158. Finally, affidavits submitted in support of actual innocence claims must contain sworn allegations of fact and any hearsay statements submitted in such affidavits are not to be considered reliable and probative evidence. Id. at 156. Here, defendant failed to make the requisite prima facie showing to warrant a hearing with respect to actual innocence. Initially, two of the three affidavits contain no reliable, probative evidence. Warden Duffy’s statement sheds no light on defendant Vaughn’s actions in the corridor, in the holding pen, or outside the search pen. Further Duffy’s statement that he never observed defendant Vaughn in conversation with ESU or co-defendant Perez is non-specific and vague. Indeed, Duffy cannot be referring to defendant Vaughn’s conversations with Perez or ESU that took place before and during the assault of Lightfoot since Duffy was not present to overhear any such conversations. Thus, Duffy’s statement has no evidentiary value. Similarly, Campbell’s statement is inherently unreliable given that it is patent hearsay and further undercut by Campbell’s refusal to testify at a hearing or retrial unless paid to do so. Even if the Court were to consider Campbell’s statement together with Rivera’s statement, these two statements do nothing to negate the competing evidence that this Court heard, weighed, and relied upon to convict defendant. That competing evidence consisted of the testimony of inmate Jahmal Brooks, who testified credibly with respect to: defendant Vaughn’s yelling and cursing at the inmates in the corridor; Chief Perez’s order to assault Lightfoot; defendant Vaughn’s order to the ESU officers to “tighten up” Lightfoot; and Vaughn’s entry into the holding pen and his order to the inmates in the holding pen to turn around and face away from the search pen. In addition, the video footage showed defendant Vaughn’s incriminating actions in the corridor when co-defendant Perez pointed at Lightfoot, his incriminating actions inside the holding pen when Lightfoot was taken to the search pen, and his presence right outside the search pen while Lightfoot was being assaulted just feet away inside the search pen. When viewed against this evidence, Rivera’s and Campbell’s statements — that they were on the line of inmates in the corridor with Lightfoot and Brooks and that defendant Vaughn did not give the order to assault Lightfoot — are insufficient to raise a question of actual innocence. This is so because, at best, these statements merely serve to contradict one aspect of Brooks’ testimony — that Vaughn gave the second order to assault Lightfoot — and such competing testimony does not satisfy the threshold to warrant a hearing on actual innocence.12 See Jiminez, supra, 142 A.D.3d at 157. However, even more significantly, these statements do not even address all the other evidence that demonstrates defendant Vaughn’s role and participation in the assault of Lightfoot. Indeed, neither Rivera’s or Campbell’s statement makes mention of defendant Vaughn’s actions inside the holding pen or outside the search pen. As opposed to being a “mountain of evidence” as defendant asserts, these three affidavits amount to more of a mere mole hill. Defendant thus has failed to establish his actual innocence by clear and convincing evidence, and has failed to raise serious doubt as to his guilt; therefore his claim of actual innocence is denied without a hearing. See People v Velazquez, 143 A.D.3d 126 (1st Dept. 2016)(insufficient prima facie showing of actual innocence to warrant a hearing); People v. Jiminez, 142 A.D.3d 149 (2016)(evidence insufficient to warrant a hearing on actual innocence claim). Defendant’s next claim — that the three affidavits constitute newly discovered evidence if presented at a new trial would change the outcome of the trial — is equally unavailing. To vacate a judgment of conviction based on newly discovered evidence, the evidence: (1) must be such as will probably change the result if a new trial is granted; (2) must have been discovered since the trial; (3) must be such as could have not been discovered before the trial by the exercise of due diligence; (4) must be material to the issue; (5) must not be cumulative to the former issue; and, (6) must not be merely impeaching or contradicting the former evidence. See CPL 440.10(g); People v. Salemi, 309 N.Y.2d 208 (1955); People v. Velasquez, 143 A.D.3d 126, 133 (1st Dept. 2016). Here, defendant fails to satisfy these essential elements. Initially, inherent in any claim of newly discovered evidence, the evidence must be newly discovered. As stated above, motion counsel appears to admit, and the record establishes, that trial counsel was aware of Rivera, Campbell, and Duffy at the time of trial and that counsel was provided with their contact information. See p. 10, fn. 10, supra. Moreover, the statements of inmates Rivera and Campbell merely contradict the testimony of Brooks and fail to cast any doubt on the bulk of Brooks’ testimony and the video evidence regarding the actions of defendant Vaughn. Thus, in light of all the competing evidence against defendant Vaughn detailed above, even if the Court were to consider the statements of these three witnesses, the Court’s verdict would not change. Therefore, defendant’s motion based on this ground is denied. Lastly, defendant received meaningful representation at trial and his claims regarding counsel’s deficiencies fall well short of the threshold necessary to make out a claim of ineffective assistance of counsel under either the Federal or State standard. At the outset, this Court is fully familiar with the work of defendant’s trial counsel, Marc DeMarco, Esq., who has appeared before this Court on numerous occasions both before and after defendant’s trial in 2016. Mr. DeMarco is an extremely able and experienced trial attorney who has always represented his clients zealously. Indeed, the trial record reveals that counsel was eminently familiar with the facts of the case and raised what he reasonably perceived could be factual issues in the case, such as the lack of corroboration of Brooks testimony with respect to defendant Vaughn’s direction to the ESU officers to tighten up Lightfoot. Counsel’s performance also included thorough and effective cross examinations of all the People’s witnesses, a cogent closing argument, and a motion to suppress defendant Vaughn’s UOF report based on a Fifth Amendment claim that any statements by defendant in such a compelled report are immunized. See People v. Vaughn, 51 Misc.3d 1223(A)(Sup. Ct. Bx Co. 2016). Defendant’s claims regarding counsel’s performance are meritless. Significantly, defendant’s papers are devoid of either an affidavit from Mr. DeMarco, or an explanation as to what efforts were made to secure such an affidavit, notwithstanding that Mr. DeMarco is an attorney who still regularly practices in the state and federal courts of New York City. This is not surprising because had defendant procured such an affidavit it most likely would have provided a plausible strategic explanation by Mr. DeMarco for his failure to call these witnesses to testify on behalf of defendant Vaughn. As explained above, Warden Duffy had no relevant information to impart regarding defendant Vaughn’s actions before, during, or after the assault of Lightfoot. Inmate Campbell stated that he would not testify unless paid to do so. Although not included in their affidavits, if called as witnesses, inmates Rivera and Campbell who were present in the corridor would most likely have testified to Vaughn’s aggressive and threatening behavior, which would have cast Vaughn in a negative light. Moreover, inmates Rivera and Campbell also were present when Vaughn and ESU officers entered the holding pen and escorted Lightfoot to the search pen and when Vaughn told the remaining inmates to turn away from the search pen. Thus, a seasoned attorney such as Mr. DeMarco could have determined with respect to calling Rivera and Campbell as defense witnesses at a bench trial, that the cons outweighed the pros, and made a sensible strategic decision not to have them testify. When viewed holistically, the record of Mr. DeMarco’s performance demonstrates that defendant has fallen woefully short of sustaining his burden to establish that he was deprived of meaningful representation and that he was prejudiced in any way by counsel’s failure to call these three individuals as witnesses at trial. Thus, this claim too is devoid of merit. Accordingly, defendant’s motion is denied without a hearing. This is the decision, order and opinion of the Court. Dated: February 28, 2020
