The opinion of the court was delivered by: Korman, C.J.,
August Kennaugh seeks habeas corpus relief from his conviction for one
count of second degree murder and two counts of first-degree robbery.
After a jury trial, petitioner was sentenced to concurrent indeterminate
terms of imprisonment of twenty-five years to life for the murder
conviction, and eight and one-third to twenty-five years on each of the
robbery convictions. The Appellate Division affirmed the conviction,
People v. Kennaugh, 92 A.D.2d 1090 (2d Dep't 1983), and petitioner's
application for leave to appeal to the New York Court of Appeals was
denied. 59 N.Y.2d 677(1983).
The underlying crimes were committed in the early morning of October
5, 1979, when petitioner and two other men forced themselves into a
restaurant in order to commit a robbery. During the robbery, the owner of
the restaurant was stabbed to death. Petitioner was arrested four months
later. Petitioner seeks relief on two grounds. In his original petition,
he claimed that the District Attorney failed to disclose that two
witnesses had observed the perpetrators just prior to the crime and were
unable to identify petitioner at a lineup. Petitioner later amended the
petition to include the claim that an eyewitness, who failed to identify
him at a lineup held seven months before trial, was permitted to do so in
a suggestive in-court setting.
In the early morning of October 5, 1979, Guelfo Nello Terzi, the owner
of Caesar's Restaurant ("Caesar's"), Gemma Terzi, his wife, and Elio
Rusnjak, the bartender, were closing the restaurant for the night. As
Rusnjak opened the door to leave, three young men (one allegedly being
petitioner), two of whom were carrying guns, forced their way into the
restaurant. Tr. 41-42; 108-09. Mrs. Terzi and Rusnjak were thrown on the
floor, and two of the men watched and guarded them. Tr. 56; 109. Mrs.
Terzi's pocketbook, jewelry, and gold, among other items, were taken from
her. Tr. 56-58. The third man took Mr. Terzi to the cash register at the
bar and then to the kitchen where approximately $500 was kept to start
the next day. Tr. 58, 65; 109.
Mrs. Terzi and Rusnjak were also taken to the kitchen. Tr. 59; 111.
Both of them were thrown to the floor and Mrs. Terzi was tied up with a
napkin. Tr. 59-60, 64; 111. Two of the men went with Mr. Terzi to the
other side of the kitchen, where the refrigerator containing a box with
money was located. Tr. 111. One of them forced Rusnjak to get up, told
him not to remember anything when the police came, and made him take off
his belt and pants. Tr. 112. Rusnjak was then forced to lay down again,
hit twice with a gun, and tied up with his belt. Tr. 61; 112. One of the
perpetrators suggested raping Mrs. Terzi, but she was not in fact raped.
Tr. 60-61; 113. Mrs. Terzi recalled that one of the perpetrators said to
her husband, "If you don't give us the money, we will kill you," and Mr.
Terzi responded, "Then kill me."
Tr. 62. Mr. Terzi was then stabbed and
killed, and another of the perpetrators screamed, "Why you do that, Why
you do that." Tr. 63. As the men ran out, one of them, identified as
petitioner, pointed a gun at Mrs. Terzi and told her that she should not
remember his face or tell the police she has seen anything. Tr. 63. After
the perpetrators left the restaurant, Mrs. Terzi untied herself and
Rusnjak. The two of them discovered that Mr. Terzi had been stabbed with
a kitchen knife. Tr. 64; 113-14. Rusnjak then called the police. Tr.64;
Petitioner was arrested on February 3, 1980, and he was tried in New
York State Supreme Court, Queens County, in early 1981. The case against
him consisted primarily of petitioner's fingerprint on the cash register
at the scene of the crime and of eyewitness identifications.
Detective Gerald Donohue testified for the prosecution that on the
night of the incident, he lifted a fingerprint that was located on the
bottom of the drawer of the cash register. Tr. 144-49. He opined that,
because of the area in which the drawer was located and the amount of
times a cash register is used, the print could have been on the register
for at most two days. Tr. 152-53. At this point in the trial, Rusnjak had
testified that the cash register remained open at night after it was
emptied. Tr. 107. He did not testify as to the number of times the cash
register was used when the restaurant was open. Nevertheless, the former
owner of Caesar's, Wilfredo Betancourt, later testified that large bills
and checks were kept underneath the cash register tray. Tr. 282-84. After
Betancourt testified, the prosecution moved to recall its fingerprint
experts, to specifically address the significance of this use of the cash
register tray. Tr. 289, but the trial judge denied the motion, believing
that the evidence would be cumulative. Tr. 293. Indeed, while Detective
Donohue conceded in his testimony that the drawer was not subject to air
when the register is closed, he noted that the drawer was subject to
friction caused by placing large bills under the drawer. Tr. 155-56.
Donohue also stated that, "[i]f the drawer wasn't used [a fingerprint]
could last an indefinite period of time as long as it wasn't disturbed."
Officer John Dee testified as an expert in latent fingerprints that the
fingerprint found on the cash tray belonged to petitioner. Dee testified
that he compared a fingerprint taken of petitioner when he was arrested
with a partial latent fingerprint found on the cash register in the
restaurant. Tr. 178-79. He concluded that the left thumb was a match,
Tr. 186, and that "[i]t's impossible for that latent print to be any
other print than that print there of [the left thumb] finger." Tr. 189.
In response to a question from defense counsel concerning how long a
print could remain on a cash register that is primarily closed, Dee stated
that it would depend on atmospheric conditions, use of the equipment, and
various other factors, and that it could be any length of time. Tr.
Petitioner did not dispute that his fingerprint was on the cash
register. Instead, he attempted to explain the presence of his
fingerprint by showing that he had touched the cash register at a time
other than during the robbery. John Harms, an electrician who knew
petitioner's parents and frequented Caesar's, and Thomas McManus, the
owner of a bar frequented by petitioner's father, testified that they had
seen petitioner and his father in Caesar's on numerous occasions. Tr.
258-59; 264-66. Both witnesses admitted on cross-examination that they
never seen petitioner touch the cash register. Tr. 261; 267. This
missing piece was filled by the testimony of Mr. Betancourt, the former
owner of Caesar's, who had sold the restaurant and moved to Florida about
a year and one-half before the trial. Tr. 269-70. Betancourt identified
petitioner as having been in the restaurant with his father many times.
Tr. 270. Some three months before the robbery, when closing the
restaurant, Mr. Betancourt removed the cash tray from the register in
order to count the money and the tray fell on the floor. Petitioner, who
was in the restaurant, picked up the tray and gave it to Betancourt. Tr.
271. Mrs. Terzi had testified that she and her husband had not replaced
any of the equipment in the restaurant. Tr. 77.
Mr. Betancourt, however, was unable to remember several details on
cross-examination: the month during which he had moved to Florida, Tr.
274, the specific date or week in July when the tray fell, Tr. 284, the
one time, other than the night the tray fell, when petitioner and his
father stayed until the restaurant closed, Tr. 275-76, or the identities
of the other people in the restaurant when the tray fell. Tr. 280.
Betancourt stated that the night in July 1979 was the only time he could
remember the tray falling, Tr. 276, 286, and that it was one of the rare
nights that the bartender, Rusnjak, left before the restaurant had
closed. Tr. 279-80.
2. Identification Testimony
The prosecution introduced two pieces of identification evidence.
First, Irving Silver, a resident of Queens, testified that he was in the
restaurant the night of the robbery at about 10:00 or 10:30, that he left
at about 12:30, and that he saw petitioner on the street near a pizza
store, four stores away from the restaurant. Tr. 129-31. Silver could not
remember whether petitioner was with anyone else. Tr. 131. Silver
testified that in July 1980, he observed a lineup and identified
petitioner as the person he had seen outside the pizza store. Tr. 131-33.
Silver also identified petitioner at the trial. Tr. 130. This testimony
placed petitioner in the neighborhood a little over an hour before the
robbery was committed. Silver acknowledged on cross-examination that the
pizza store was a place where young people congregated, Tr. 135, and
stated that he did not recognize petitioner's counsel as one of the
persons present at the July 1980 lineup. Tr. 133-34. Second, Mrs. Terzi
identified petitioner as one of the perpetrators of the crime. Tr.
62-63. The circumstances of her identification are discussed more fully
in the portion of this memorandum that addresses petitioner's challenge
to the admissibility of her identification. Suffice it to say here that
Mrs. Terzi's identification was of minimal probative value.
Petitioner was convicted of one count of second-degree murder and two
counts of first degree robbery, and sentenced to concurrent indeterminate
terms of imprisonment of twenty-five years to life for the murder
conviction, and eight and one-third to twenty-five years on each of the
THE POST-CONVICTION MOTION
At some point after the judgment of conviction became final,
petitioner's counsel came across two DD-5 police reports that described
interviews with Jack Basilico and Joseph Bovino. Basilico and Bovino were
patrons at the restaurant on the night of the robbery, and at about 1:00
A.M., they saw three young men trying to get inside the restaurant in
order to purchase cigarettes from a vending machine in the restaurant's
vestibule. The men passed a dollar bill through the door to Mr. Terzi who
then slipped a pack of cigarettes
back to the men. Affidavit and
Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus,
at ¶ 6 ("Mem. in Opp."); Amended Petition for Writ of Habeas
Corpus, ¶ 8 ("Amend. Pet."). Basilico and Bovino left the restaurant
at about 1:30 A.M. and saw the men making a phone call on a street corner
outside the restaurant. Mem. in Opp., ¶ 7; Amend. Pet., ¶ 8.
They did not witness the incident. The DD-5s discussed their failure to
identify petitioner at a photo viewing on October 6, or at a lineup that
took place on October 23, 1980, approximately one year after the
robbery. The DD-5s also contained their statements that they would be
able to identify in person the youths that had bought the cigarettes.
Decision, Motion to Vacate Judgment, March 11, 1998, at 3 ("§ 440.10
Decision"); Mem. in Opp., ¶ 19.
On May 2, 1996, petitioner filed a motion to vacate the judgment of
conviction pursuant to New York Criminal Procedure Law § 440.10, on
the ground that the prosecution had willfully concealed exculpatory
evidence when it failed to disclose evidence relating to Basilico and
Bovino, in violation of Brady and Rosario. Amend. Pet., ¶ 17. After
an evidentiary hearing, the motion to vacate the judgment was denied.
§ 440.10 Decision, at 1. The judge presiding at the § 440.10
hearing found that "the prosecution failed to deliver the two DD-5's at
issue to the defense and did not inform them of Basilico and Bovino's
inability to identify [petitioner] in the lineup." Id. at 5 (footnotes
omitted). Nevertheless, the judge also found that defense counsel knew
that a second lineup had been conducted and had a duty to inquire into
the results of that lineup. Id. at 5 n. 2. More significantly, the police
reports were not material evidence because a reasonable probability did
not exist that the disclosure of the reports would have altered the
outcome of the trial. Specifically, the judge concluded that "any
assistance Basilico and Bovino would have provided if called as defense
witnesses is highly speculative. They were not eyewitnesses to the
crime. Furthermore, there is nothing which links the perpetrators of the
crimes to the young men who earlier had purchased cigarettes from the
victim." Id. at 6. Under these circumstances, if called at the trial,
they would have testified only that, a year after the event, they could
not identify petitioner as one of the three men who they had seen in the
vicinity of the restaurant shortly before the robbery.
Some time after the denial of the § 440.10 motion, petitioner's
mother found buried in her closet two DD-5s that involved interviews with
Mrs. Terzi and Rusnjak, the bartender. Affirmation, in support of Motion
to Reargue, Anthony v. Lombardino, ¶ 7. In the respective DD-5s,
both Mrs. Terzi and Rusujak stated that the men who had purchased
cigarettes were the same men that later forced themselves into Caesar's
and perpetrated the crimes. Id., ¶ 8; Ex. B. The significance of the
DD-5s is that they place in a somewhat more helpful light to petitioner
the failure of Basilico and Bovino to identify him as one of the persons
they saw purchasing cigarettes from the victim earlier in the evening
before the robbery. If, as the latest DD-5s indicate, the persons who
purchased the cigarettes were the same persons who later returned to the
restaurant to commit the robbery and murder, their inability to pick
petitioner out of the lineup was more significant than the bare fact that
they could not identify petitioner as one of the men who they had seen in
the vicinity of the restaurant.
On the basis of the two additional DD-5s, petitioner moved on March 3,
1999 to reargue his § 440.10 motion. The motion was denied for two
reasons. The court concluded that the results of the trial
likely have been different had the DD-5 reports been turned over to the
defense. Order, Motion to Reargue, April 7, 1999, at 2 ("Order, Motion to
Rearg."). The court also found that petitioner had failed to make any
showing as to why the additional police reports could not have been
submitted with the initial § 440.10 motion when they had been in his
mother's possession. Id. at 1-2. The judge cited to three cases denying
motions for renewal and/or reargument that had been supported with
additional facts because of the failure to offer valid excuses for not
having included the evidence in the original motions. See People v.
Chetrick, 255 A.D.2d 392 (2d Dep't 1998); Misek-Falkoff v. Village of
Pleasantville, 207 A.D.2d 332 (2d Dep't 1994); Caffee v. Arnold,
104 A.D.2d 352 (2d Dep't 1984). All three ofthese cases cite to Foley v.
Roche, 68 A.D.2d 558 (1st Dep't 1979), in which the Appellate Division
discussed the difference between motions for reargument and renewal. A
motion for reargument is "designed to afford a party an opportunity to
establish that the court overlooked or misapprehended the relevant
facts, or misapplied any controlling principle of law." Id. at 567. A
motion for renewal, which is at issue here despite petitioner's
characterization of his motion as one for reargument, "must be based upon
additional material facts which existed at the time the prior motion was
made, but were not then known to the party seeking leave to renew, and,
therefore, not made known to the court." Id. at 568. A motion for renewal
should be denied "where the party fails to offer a valid excuse for not
submitting the additional facts upon the original application." Id.
(citations omitted). In this case, the judge found that petitioner had
not offered a valid excuse for failing to submit the police reports with
the original motion.
The judge did not rely on Section 440.10(3)(c) of New York's Criminal
Procedure Law, which would seem to have been the relevant statutory
provision if petitioner had filed a second 440.10 motion to vacate his
judgment of conviction. Section 440.10(3)(c) provides that a motion to
vacate a judgment may be denied when, "[u]pon a previous motion made
pursuant to this section, the defendant was in a position adequately to
raise the ground or issue underlying the present motion but did not do
so." § 440.10(3)(c). This provision, however, provides that, "in the
interest of justice and for good cause shown," the second successive
motion may be granted "if it is otherwise meritorious." § 440.10(3).
The Practice Commentaries explain that "the test as to whether the court
will exercise discretion to relieve the defendant from forfeiture will be
whether the defendant can demonstrate good cause for failure to raise the
ground on a prior motion." Peter Preiser, Practice Commentaries,
McKinney's Consol. Laws of N.Y., Book 11A, Crim. Proc. L. § 440.10,
at 427. In this case, though the judge did not refer to §
440.10(3)(c) in denying the motion for reargument, the result would not
have been any different if he had treated the motion for reargument as a
second motion to vacate the conviction.
On September 22, 1998, the Appellate Division denied petitioner's
application for leave to appeal from the denial of the motion to reargue.
Amend. Pet., ¶ 19. Petitioner filed his original petition for a writ
of habeas corpus on August 13, 1999, and an amended petition on March 1,