DECISION AND ORDER Samuel Edmonson (hereinafter: defendant) moves this Court to vacate his judgment of conviction, entered under Kings County Indictment: 2849/1989, pursuant to Criminal Procedure Law (hereinafter: C.P.L.) §440.10(1)(g), on the basis of newly discovered evidence coming to light since his conviction. The new evidence consists of: (1) the testimony of Keith Christmas, who recanted his eyewitness trial testimony; (2) the purported affidavit of Thomas Porter, also known as Thomas Sutton, recanting his trial testimony; and (3) impeachment material concerning former Detective Louis Scarcella (hereinafter: Det. Scarcella). The defendant contends that the newly discovered evidence undermines the evidence presented at trial and is sufficient for this Court to conclude that, had the jury known of the evidence, there was more than a reasonable likelihood that the verdict would have been different. The People oppose the defendant’s motion in its entirety. The People argue that this Court should not credit the recantation testimony of Keith Christmas and Thomas Sutton, and that the impeachment material concerning Det. Scarcella has no impact upon the determination of the instant motion, due to the detective’s minor role in this case. This Court conducted a hearing on the defendant’s motion on November 9, 10, 16, 17, 18, and 19, 2021. For the reasons set forth below, this Court grants the defendant’s motion vacating his judgment of conviction entered under Kings County Indictment 2849/1989 and a new trial is ordered. Procedural History After trial by jury, on June 14, 1990, the defendant was found guilty for the murders of Kenneth Rankin (hereinafter: Rankin) and William Maye (hereinafter: Maye), the attempted murder of Brian Fleming (hereinafter: non-fatal victim), three counts of felony weapons possession and Enterprise Corruption. On July 11, 1990, the defendant was sentenced to an aggregate prison term of seventy-five years to life in prison, with a fine in the amount of $18,900,000 (Aiello, J., at trial and sentence). On July 12, 2000, the defendant, by his counsel, moved to vacate his judgment of conviction pursuant to C.P.L §440.10, citing (1) newly discovered evidence consisting of the recantation of Thomas Sutton and the existence of parole records; (2) ineffective assistance of trial counsel; and (3) the existence of known misrepresentations by the police of prosecutor thereby depriving the defendant of a fair trial. The People opposed the defendant’s first C.P.L. §440.10 motion and on October 3, 2000, the defendant’s motion was denied in its entirety (Douglas, J.). The defendant was granted leave to appeal the decision on his first C.P.L. §440.10 motion, and that appeal was consolidated into the defendant’s direct appeal. The judgment of conviction and court’s determination of the defendant’s first C.P.L. §440.10 motion was affirmed by the Appellate Division, Second Judicial Department (hereinafter: Appellate Division). People v. Edmonson, 300 AD2d 317 (2d Dept 2002). Leave to appeal the Appellate Division’s determination to the Court of Appeals was denied by a judge of that Court. People v. Edmonson, 99 NY2d 614 (2003) (Rosenblatt, J.). Thereafter, the defendant filed a writ coram nobis in the Appellate Division, on the basis of ineffective assistance of counsel, and the defendant’s application was denied on February 17, 2004. People v. Edmonson, 4 AD3d 482 (2d Dept 2004). On May 14, 2004, a judge of the Court of Appeals denied the defendant’s application for leave to appeal the determination of his writ coram nobis. People v. Edmonson, 2 NY3d 798 (2004) (Ciparick, J.). On December 6, 2004, the defendant filed a pro se writ of habeas corpus in the Untied States District Court for the Eastern District of New York. On October 10, 2005, counsel for the defendant filed a memorandum of law in support of the defendant’s pro se writ. On November 29, 2006, the district court denied the defendant’s writ. Edmonson v. Artus, No. 04-CV-5477, 2006 US Dist LEXIS 98216 (EDNY, 2006). According to the, the Kings County District Attorney’s Office (hereinafter: KCDAO), the KCDAO received correspondence dated February 18, 2015, advising them that a witness, later determined to be Keith Christmas, was interested in recanting his trial testimony. Mr. Christmas, by his attorney, offered to provide relevant information related to his trial testimony in exchange for immunity from prosecution for the murder of Talmage Levant. The KCDAO declined to grant Mr. Christmas’ request for immunity and there were no further communications. On May 30, 2020, the defendant by his attorney filed the instant motion pursuant to C.P.L. §440.10(1)(g), on the ground of newly discovered evidence, moving to vacate the defendant’s judgment of conviction or in the alternative for a hearing. The People opposed the instant motion and this Court ordered said hearing January 8, 2021, which was ultimately held in November of 2021, due to the worldwide COVID-19 Pandemic and witness availability. Findings of Fact At hearing the defendant called two witnesses: (1) Keith Christmas, and (2) Det. Scarcella. Summary of Testimony — Keith Christmas Keith Christmas testified against the defendant in the grand jury and in the 1990 trial that resulted in the defendant’s judgment of conviction at issue here. Since his testimony in 1990 to the time of the hearing Mr. Christmas did not have any contact with the defendant. Keith Christmas was a lieutenant in a drug trafficking organization run by the defendant and testified that he had little to no contact with the defendant at the time he was a part of the organization. Mr. Christmas further testified that in the late 1980′s, there was an issue with money missing from the sale of drugs under his supervision and the defendant ordered John Amonte to kill Mr. Christmas. John Amonte subsequently shot Mr. Christmas resulting in an extended hospital admission at Brooklyn Hospital for his injuries. During his stay at the hospital, Mr. Christmas was approached by Det. Scarcella and his partner, Detective William Morris (hereinafter: Det. Morris), for the first time. Mr. Christmas testified at the hearing that when he was approached by Det. Scarcella and his partner they told him: “We heard about what happened with you and your team, they tried to kill you. You are going to be arrested for murder, and you are going to go down with the shit (sic) for people who tried to kill you.” Hearing Transcript, dated November 10, 2021 (hereinafter: HR 11/10/21); Page 25, Lines 16-19. Subsequently, the detectives returned to meet with Mr. Christmas while he was still in Brooklyn Hospital. They told him about the potential charges he faced and the length of time he would spend in prison, then asked if he had any information about other murders, drug dealers, or anything specifically about the defendant and John Amonte. After the second meeting, the defendant was arrested and indicted on multiple charges including several counts of murder. When Keith Christmas was discharged from the hospital, he was incarcerated pending disposition of his charges. Mr. Christmas believed that he was housed in Brooklyn House of Detention by the New York City Department of Corrections (hereinafter: DOC). He further testified that on several occasions Detectives Scarcella and Morris would remove him from Department of Corrections’ custody for a day to meet with him and bring him to various locations. On the occasion of the first such removal, Mr. Christmas testified that he was taken to the Kings County District Attorney’s Office (hereinafter: KCDAO) and questioned over several hours by Detectives Scarcella and Morris about the drug trafficking organization, how it was structured, who was involved, and murders the organization was suspected of committing. Mr. Christmas testified that at this meeting the detectives insinuated that he would be charged if he did not cooperate by providing information. These types of meetings occurred multiple times over several months. In addition to meetings at the KCDAO, Det. Scarcella and Det. Morris would take Mr. Christmas out of DOC custody and bring him to crime scenes to coach and rehearse his testimony. In particular, they brought Mr. Christmas to a crime scene at South Oxford Street in Kings County, so he could testify in the instant case against the defendant. The detectives would also show the defendant crime scene pictures as an aid in having Mr. Christmas retell the fabricated account. In exchange for participation, Mr. Christmas was taken out of custody by Det. Scarcella and Det. Morris to eat at various locations and engage in sexual conduct with various women, as well as being told that he would receive a lighter sentence. Keith Christmas testified that his trial testimony was completely fabricated. He stated that he testified at the defendant’s trial that John Almonte picked him up and drove him to South Oxford Street. Mr. Christmas was handed a paper bag containing a 9 mm handgun. Mr. Christmas saw the defendant arrive at that location with decedent Rankin. He further observed the defendant speak with decedent Rankin as Mr. Christmas gave John Almonte the gun. John Almonte then fired the gun at Rankin, shooting him multiple times. Mr. Christmas testified that this story was developed as a result of the meetings with Det. Scarcella and Det. Morris, and that he was not actually present to witness the homicide of decedent Rankin or the subsequent homicide of decedent Maye. In exchange for his false testimony against the defendant, Mr. Christmas entered into a cooperation agreement that limited his incarceratory exposure to two-to-four years of state’s prison. Mr. Christmas served two years of incarceration in full satisfaction of all charges pending against him. Approximately ten to fifteen years ago Keith Christmas attempted to meet with Chief Detective Investigator Joseph Ponzi (hereinafter: Chief Ponzi), whom he had encountered briefly while preparing to participate in the prosecution against the defendant. Mr. Christmas went to the KCDAO in an attempt to tell the truth about his prior testimony and Mr. Christmas testified at the hearing that Chief Ponzi dismissed him saying: “I don’t want to hear about it” (HR 11/10/21, Page 40, Line 8). In addition, Mr. Christmas met with a private investigator, Robert Rahn, and an attorney, Raymond Sprowls, in regard to the recantation of his testimony without any success. Despite a clause in the cooperation agreement allowing for the re-prosecution of any crimes covered therein if Mr. Christmas provides contrary testimony, by Mr. Christmas’ own account, he has attempted to atone for his false testimony regarding the defendant approximately four or five times prior to this hearing. Finally, Mr. Christmas testified that he stands to receive no benefit for his hearing testimony, in favor of a person that ordered his death over thirty years ago, other than to clear his conscious. Based upon this Court’s ability to observe the witness, his body language and demeanor, as well as listen to the witness’ testimony, this Court finds the testimony of this witness to be credible, reliable and worthy of belief. Summary of Testimony — Detective Louis Scarcella Prior to testifying in the instant C.P.L. §440 hearing Det. Scarcella stated that he reviewed the defendant’s C.P.L. §440 motion, his DD-5 reports, memo book entries, vouchers and an application for a search warrant. In addition, he spoke with family, friends, his attorney and members of the KCDAO. Generally, Det. Scarcella testified that he had no independent recollection of the investigation into the defendant, and no particular recollection of Keith Christmas. Det. Scarcella testified that the majority of the investigation was managed by his partner Det. Morris and Chief Ponzi1. Det. Scarcella testified that he first met Keith Christmas in Chief Ponzi’s office at the KCDAO, through Mr. Christmas’ then attorney, Michael Vecchione. Det. Scarcella testified that he was present for several meetings with Mr. Christmas at the KCDAO and took Mr. Christmas to a crime scene. Det. Scarcella further testified that he did not recall: (1) whether Mr. Christmas was in DOC custody at the time; (2) taking Mr. Christmas out of DOC custody for the meetings or crime scene visit; (3) preparing any written reports pertaining to Mr. Christmas, whether they be DD-5′s, written statements or notes; (4) arresting Mr. Christmas2; or (5) being involved in a cooperation agreement concerning Mr. Christmas and the prosecution of the defendant. Despite the detective’s lack of ability to recall the above-described interactions with Mr. Christmas, Det. Scarcella testified definitively that he did not take Keith Christmas to eat or for any other frolics or detours while he may have been with him. In addition, Det. Scarcella did not independently recall showing a photo array to an individual referred to as “JP”, concerning the investigation into the defendant, but the detective did adopt the associated paperwork as accurate. Although Det. Scarcella did not remember who “JP” was specifically, he did vaguely remember a person by the name of John Prince but could not recall any additional information about that person, his involvement, or lack thereof. Again, Det. Scarcella lacked the recollection of arresting the defendant on the instant matter. However, based upon a report he authored, entered into evidence at the hearing, the detective adopted the position that Chief Ponzi, Parole Officer Alvin Epstein, and he arrested the defendant. Despite the vast inability to remember the events of approximately thirty years ago, the detective was able to provide, in painstaking detail, his career path from the NYPD Academy, though private work during a citywide layoff, to his chronological assignments when returning to duty as an NYPD Officer and detective. Finally, during his testimony, Det. Scarcella was confronted with similar testimony arising out of other C.P.L. §440 hearings, where the majority of his testimony reflected a diminished or insignificant role in the underlying investigation and an inability to remember. Based upon this Court’s ability to observe the witness, his body language and demeanor, as well as listen to the witness’ testimony, this Court find’s Det. Scarcella to be incredible, due in large part, to his convenient inability to recall certain facts while adamantly testifying to others in an attempt to bolster his integrity. At the hearing the People called four witnesses: (1) Thomas Porter, also known as Thomas Sutton, (2) Chief Joseph Ponzi, (3) Emmanuel Buntin, and (4) John Prince. Summary of Testimony — Thomas Porter, also known as Thomas Sutton Consistently with most of the witness’s trial testimony, Thomas Porter testified at the instant hearing, under order by a judicial subpoena, that in the late 1980′s he owned a number of buildings in Brooklyn, New York. At that time, he was approached by the defendant and people working under the defendant to rent spaces in those buildings for a ‘boys club’. Subsequently, Mr. Porter learned that the spaces used by the defendant and his organization were being used for the trafficking of narcotics. When Mr. Porter objected to this, he testified that the defendant threatened to burn down his buildings and, if Mr. Porter went to the police, harm Mr. Porter’s family. In addition, he was further directed by the defendant to do masonry work in the locations used by the defendant and his organization to fortify those locations to protect against police entry. Mr. Porter further testified that at some point he observed the defendant, Keith Christmas (known to Mr. Porter as ‘Understanding’), John Amonte and another individual known as’ Black’, bring Willie Maye to one of his buildings because there was an issue with the money Maye was supposed to handle for the defendant related to the drug trafficking. Maye was taken to the basement of one of the buildings, beaten badly, then Mr. Porter heard gunshots before seeing Maye being carried from the location. Mr. Porter’s testimony was unclear, based upon inconsistencies whether he initially testified at the defendant’s trial that he observed Maye’s bloody body removed from the location or that he observed the body wrapped up and removed. Mr. Porter added at the instant hearing that Maye’s body was propped up against his parents’ door and fell in once the door was answered. This, as well as multiple other details, were not provided at the time of trial despite the witness testifying to those details at the instant hearing. This witness claimed at the hearing that these details were omitted at the trial because he was not asked about them specifically. In addition, Mr. Porter testified that he became acquainted with Det. Morris3 and would call him at when it would be beneficial for the police to raid Mr. Porter’s buildings and catch the defendant and his organization in the act of trafficking narcotics. Thomas Porter testified at the hearing, that approximately one month after testifying against the defendant at trial, the brother of John Amonte approached the witness on the street and asked him to sign a document. Mr. Porter claims now that he did not have his eyeglasses, read or understand what he was signing at the time. The document was a recantation of Mr. Porter’s trial testimony, stating that the testimony was fabricated. However, Mr. Porter did testify that the signature on the affidavit was his and that it was notarized. Despite this, Thomas Porter testified that his original trial testimony was not fabricated, and was accurate based on his observations, not the product coercion. Thomas Porter testified that prior to testifying at the instant hearing, he met with an assistant district attorney from the KCDAO. This meeting, in preparation for the hearing, was audio recorded and a transcript was generated. The transcript reflects that during the preparation session the assistant district attorney asked a litany of closed-ended, leading questions to which the witness agreed to the contents of the question. Although it is this Court’s earnest belief that the assistant district attorney did not proceed in this fashion for the purpose of coaching the witness, this inartful style of preparation calls into question the credibility of this witness and his ability to accurately recall and describe the events he may or may not have witnessed. In addition, Mr. Porter’s testimony is rough with inconsistencies. For example, Mr. Porter testified that during the late 1980′s he had a substance abuse problem with an addiction to heroine and crack cocaine (Hearing Transcript, dated 11/16/21 (hereinafter: HR 11/16/21], Page 129, Lines 15-21), then Mr. Porter during his same testimony denied his addiction to crack cocaine and testified solely to the use of heroine (HR 11/16/21, Pages 164-65, Lines 18-5); in addition, Mr. Porter did not have an independent recollection of the events from over thirty years ago when he met with the assistant district attorney to prepare for the hearing (HR 11/16/21, Pages 170-71, Lines 24-1), then testified that he remembered “the most important parts…like if it was yesterday” (HR 11/16/21, Page 171, Lines 15-22). Based upon this Court’s ability to observe the witness, his body language and demeanor, as well as listen to the witness’ testimony, this Court cannot credit the testimony of Thomas Porter as accurate and reliable. Summary of Testimony — Chief Detective Investigator Joseph Ponzi Chief Ponzi testified at the hearing that he began his career at the KCDAO as a detective investigator, rose through the ranks as deputy chief and eventually became chief of the detective investigators. At the time of the investigation into the defendant’s organization, Chief Ponzi was a deputy chief in charge of special investigations. Chief Ponzi became part of a joint NYPD/KCDAO task force (hereinafter: task force) into the defendant’s narcotics trafficking organization in the summer of 1988. Chief Ponzi testified that he recalled learning of Keith Christmas for the first time when he was advised by an assistant district attorney, assigned to the task force, that Mr. Christmas would be coming into the KCDAO to proffer. Chief Ponzi testified that he was present for that interview and multiple others but could not independently recall all topics covered on particular dates without the aid of notes. Chief Ponzi testified that he administered a polygraph examination to Keith Christmas on multiple occasions related to incidents involved in the investigation and that, with the exception of one occasion where no determination could be made, the finding was that Mr. Christmas was truthful about his involvement in the defendant’s organization. When conducting these sessions with Mr. Christmas, Chief Ponzi testified that he would generally be alone with the subject, but others could have been watching from an adjacent room. Chief Ponzi further testified that although he was the main conduit between the KCDAO’s investigation and Keith Christmas, he had no knowledge of whether Detectives Morris and Scarcella met with Mr. Christmas independently of him. During his hearing testimony, Chief Ponzi could not recall whether he was present for several photo-array identification procedures related to the investigation into the defendant’s organization and recalled certain names of civilian witnesses as familiar, without remembering other details. Chief Ponzi further testified that Mr. Christmas was relocated after the trial for security purposes and Mr. Christmas did, on occasion, keep in touch with Chief Ponzi. However, the chief did also testify that Mr. Christmas did not attempt to meet with him or recant his trial testimony. Finally, Chief Ponzi testified that he had met with assistant district attorney on multiple occasions for the purpose of preparation prior to testifying in the instant hearing, and that he and Det. Scarcella are personal friends who discussed having to testify but not the substance of their testimony prior to the hearing. Based upon this Court’s ability to observe the witness, his body language and demeanor, as well as listen to the witness’ testimony, this Court finds the testimony of this witness to be credible, reliable and worthy of belief. Summary of Testimony — Emmanuel Buntin Emmanuel Buntin testified that he has been a notary public since prior to 1990. At the hearing he was shown a copy of Thomas Porter’s recantation affidavit, that was entered into evidence. Upon examination of the document, specifically the portion purporting to be his notarization, Mr. Buntin testified that although the signature looked like his, it was not. Mr. Buntin further testified that he had only one notary stamp and the stamp on the affidavit could have been his, but it didn’t look like it because his stamp produced a “clearer” image. Hearing Transcript dated November 17, 2021 (hereinafter: HR 11/17/21), Page 235, Lines 2-10. In addition, he has notarized and stamped over 3,000 documents in the past thirty years and has no independent recollection as to whether he notarized the recantation affidavit of Thomas Sutton or not. Based upon this Court’s ability to observe the witness, his body language and demeanor, as well as listen to the witness’ testimony, this Court finds the testimony of this witness to be credible, reliable and worthy of belief. Summary of Testimony — John Prince John Prince testified at the hearing that on June 30, 1987, at approximately 1:00 PM he was on South Oxford Street working on his car when he observed, what he described as an incident involving two cars. Subsequently he gave a basic description of the individuals in the cars to the police. It is not clear from the hearing testimony how Mr. Prince described the incident to the police, but what is clear is that he never stated that the driver of the “red car” was the shooter. Subsequently, on July 28, 1988, police came to his home and showed him a photo array. Although he could not remember the names of the police personnel, he did recall that he was not instructed whom to select and he did inform the police that one of the people in the array looked like a person from one of the cars, but he was unsure. Thereafter, Mr. Prince wound up at a police precinct on December 18, 1989 and viewed a lineup. Again Mr. Prince could not recall if he spontaneously went to the precinct or was called to go there by police. Once inside he did view a lineup and identified, with certainty, one of the individuals in the lineup as the person driving the red car (Hearing Transcript, dated November 19, 2021 [hereinafter: HR 11/19/21], Page 297, Lines 22-25). However, the witness was contradicted by his trial testimony, in which he testified that when he made an identification at the lineup, he was “not one-hundred percent sure” (HR 11/19/21, Page 302, Lines 12-13). Based upon this Court’s ability to observe the witness, his body language and demeanor, as well as listen to the witness’ testimony, this Court finds the testimony of this witness to be credible, reliable and worthy of belief in part. Conclusions of Law “Of course, society is interested in apprehending criminals, but the protection of the innocent has always been basic to our concept of justice” (Bader Ginsburg, Ruth. My Own Words. Simon & Schuster, First Edition, October 4, 2016. Page 39). Pursuant to C.P.L. §440.10(1)(g), a court may vacate a judgment when: “new evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after discovery of such alleged new evidence.” Newly discovered evidence must satisfy the following requisite conditions: (1) It must be such as will probably change the result if a new trial is granted; (2) It must have been discovered since the trial; (3) It must be such as could have not been discovered before trial by the exercise of due diligence; (4) It must be material to the issue; (5) It must not be cumulative to the former issue; and (6) It must not be merely impeaching or contradicting the former evidence. See People v. Deacon, 96 AD3d 965, 967 (2d Dept 2012) quoting People v. Salemi, 309 NY 208, 216 (1955) (internal quotation marks omitted); see also People v. Malik, 81 AD3d 981, 981-82 (2d Dept 2011); People v. Tankleff, 49 AD3d 160, 179 (2d Dept 2007). he defendant has the burden of proving, by a preponderance of the evidence standard, every fact essential to support the motion (C.P.L. §440.30[6]). “Implicit in the ground for vacating a judgment of conviction is that the newly discovered evidence be admissible” (Tankleff, at 182; People v. Mazyck, 118 AD3d 728, 730 [2d Dept 2014]). This Court is well aware that recantation evidence is considered unreliable. People v. Jenkins, 84 AD3d 1403 (2d Dept 2011). However, when considering such evidence the Court must consider: (1) the inherent believability of the substance of the testimony; (2) the witness’ demeanor; (3) the existence of evidence corroborating testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and the defendant as related to motive to lie. People v. Wong, 11 AD3d 724, 725-26 (3rd Dept 2004). Here, Keith Christmas testified before this Court, as described in detail above, and this Court found him to be credible. The content of his testimony as corroborated by the proffered evidence supported his testimony and rendered it believable. The benefits received from his cooperation at time of the defendant’s investigation and trial, by way of being taken from DOC custody to eat and engage in sexual activity, as well as the minimal prison sentence, and the belief that he was shot on the order of the defendant, serves as sufficient reasons for his fabricated trial testimony. In addition, the passage of time, desire to clear his conscious, and the utter lack of pecuniary or other tangible benefit serve to establish the basis for his repeated attempts at recantation. If that were not sufficient on its own, the fact that, pursuant to the cooperation agreement, Mr. Christmas could be re-prosecuted for any indicted crime based upon contrary testimony adds to this Court’s determination of Mr. Christmas’ credibility and the weight of his evidence presented at the instant hearing. Contrarily, the determination of this Court that Det. Scarcella is incredible, based upon his demeanor while testifying, his selective recollection, and pattern of minimization of his role in investigations under scrutiny, especially the investigation underlying the instant case, weighs heavily for one outcome. An outcome enveloped in the administration of justice. WHEEFORE, based upon review of all of the evidence adduced at the instant hearing, on defendant’s motion to vacate his judgment of conviction, when viewing the facts under a totality of the circumstances analysis, this Court is convinced that there is a reasonable probability that had the evidence been known to the jury the result would have been more favorable to the defendant. C.P.L. §440.10(1)(g). As such, the defendant’s motion to vacate his instant judgment of conviction, pursuant to C.P.L. §440.10(1)(g), is hereby GRANTED and a new trial is ordered. This constitutes the decision, opinion and Order of this Court. Dated: June 14, 2022
