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BERMUDEZ v. PORTUONDO

March 29, 2004.

FERNANDO BERMUDEZ, Petitioner, -against- LEONARD PORTUONDO, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, Respondent


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Fernando Bermudez ("Bermudez") has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Bermudez contends that his confinement by New York state is unlawful because: i) his Fifth and Fourteenth Amendment rights were violated by impermissibly suggestive identification procedures employed by the state; ii) his Fifth, Sixth and Fourteenth Amendment rights were violated by the prosecution's failure to disclose to him, completely and timely, exculpatory evidence and documents; iii) his Fifth, Sixth and Fourteenth Amendment rights were violated by misconduct engaged in by the prosecutor; iv) his Fifth, Sixth and Fourteenth Amendment rights were violated by flawed instructions given to the jurors by the trial court; v) his Sixth and Fourteenth Amendment rights to a public trial were violated by the trial court's exclusion from the courtroom, as spectators during the trial, two former jurors; and vi) his Sixth and Fourteenth Amendment rights were violated by the ineffective assistance he Page 2 received from his trial and appellate counsel. In addition, Bermudez contends that his conviction rests upon perjured testimony, which is evidenced by post-trial sworn statements, made by the prosecution's witnesses who provided identification testimony at his trial, through which they recanted their trial testimony.

  The respondent opposes Bermudez's application for a writ of habeas corpus. He contends that petitioner's claims regarding the pretrial identification procedures, the use of perjured trial testimony and misconduct, attributed to the prosecutor, were all matters considered and reasonably rejected by the state courts. In addition, the respondent maintains that the exclusion of two former jurors from the courtroom did not infringe upon petitioner's right to a public trial. Furthermore, according to the respondent, `petitioner's claim concerning the trial court's jury instructions is procedurally barred from habeas corpus review and, in any event, is meritless. The respondent also contends that Bermudez's allegation, that the prosecutor made improper arguments at his trial, is procedurally forfeited and does not make out a claim of constitutional magnitude warranting habeas corpus relief. Moreover, the respondent claims that Bermudez cannot establish that the assistance rendered to him by either his trial or appellate counsel was ineffective. Consequently, the respondent urges that Bermudez's application for habeas corpus relief be denied.

  II. BACKGROUND

  In the late evening of August 3, 1991, Efrain Lopez ("Lopez"), a teenager on furlough from the Georgetown Correctional Facility, went to a party at the Marc Ballroom, located in the Union Square neighborhood of Manhattan. While there, Lopez had an altercation with Raymond Blount ("Blount"), a twenty-two-year-old who had come to the ballroom with a number of his Page 3 friends. During the altercation, Blount punched Lopez in the eye, and Lopez fell to the ground.

  Early the next morning, at approximately 3:00 a.m., as Blount and several of his friends exited the ballroom and proceeded to walk along University Place, Lopez and a group of his acquaintances began to follow. Suddenly, a black Nissan Pathfinder automobile moved down University Place; it interdicted the Blount group's movement along that street. A man with a cane exited the Pathfinder and demanded that Lopez identify the person with whom he had earlier had the altercation in the ballroom. Lopez responded by identifying Blount as that person. Just then, another man wearing a gold chain with a medallion and holding a hand behind his back, jogged toward Blount; he produced a gun and shot Blount once, at close range, in the abdomen. When the shot rang out, Blount and those with him began to run. Some in Blount's group were pursued and assaulted by members of the group aligned with Lopez. Shortly after the shooting, police officers and an ambulance arrived on the scene. Blount was transported by ambulance to St. Vincent's Hospital; several hours later, he expired.

  Later that day, Detective Michael Lentini, who was assigned to the Sixth Precinct Detective Squad, spoke with approximately seven persons who had been walking along University Place with Blount at the time that he was shot. Based upon those conversations, a composite description of the shooter was fashioned. The shooter was described as a male Hispanic, 16 to 26 years of age, approximately 5' 11" tall and weighing 165 pounds. A composite description of Lopez was also assembled. He was described by the witnesses as a male Hispanic, 16 years of age, approximately 5' 4" tall and weighing 120 pounds. Armed with that description, Det. Lentini, his partner, and detectives assigned to a police task force transported the seven witnesses to the New York Police Department's Manhattan "CATCH Page 4 Unit." The CATCH Unit for each borough is a depository for photographs of those persons who have committed crimes in that borough. According to Det. Lentini, witnesses are taken to a CATCH Unit when police officers believe that the witnesses might be able to identify a person who committed a crime. The Manhattan CATCH Unit is located in a police precinct on the Upper West Side of Manhattan. The unit is housed in a large room; approximately three-quarters of the room's walls are lined with file cabinets containing drawers filled with photographs. The room also has a table at which witnesses may view the photographs. In addition, the room has a desk where police personnel may sit. Each file cabinet drawer is labeled so as to identify the ethnicity, height and weight of the persons whose photographs appear within that file cabinet drawer.

  According to Det. Lentini, at first, three witnesses, Lawrence Darden ("Darden"), Nkosi Boyce ("Boyce") and Terrance Hall ("Hall"), were seated around the table; each was given a file cabinet drawer of photographs to examine. Before the witnesses were permitted to look at the photographs, each was instructed by Det. Lentini that, while looking at the photographs, he was not to speak with the others or compare notes; each was directed to summon Det. Lentini if he found a photograph of someone connected to the case. Det. Lentini explained to the witnesses that at that point he would remove the person from the company of the remaining witnesses and discuss the photograph that had been selected and the relationship of the person depicted in the photograph to the events surrounding Blount's death.

  Of the three witnesses in the room, only Darden selected a photograph and summoned Det. Lentini. The photograph that Darden selected was that of Lopez. Darden was removed from the room and questioned by the detective about the photograph he had selected and the role Page 5 the person depicted in the photograph had in the events surrounding the shooting of Blount.

  When Det. Lentini returned to the CATCH Unit viewing room, Boyce and Hall had completed their review of the photographs. They were escorted from the CATCH Unit viewing room and, according to Det. Lentini, Jaime Velasquez ("Velasquez"), Okpa lyesi ("lyesi"), Frank Kent ("Kent") and Mike Thompson ("Thompson") were brought into that room. These four witnesses were seated such that two were on each side of the viewing table and each was given a file cabinet drawer of photographs to examine. Det. Lentini instructed the four witnesses to look at the photographs, not to speak with each other and not to compare the photographs. They were told that if anyone recognized a person depicted in a photograph, Det. Lentini should be summoned and he would discuss the photograph with the person who selected it.

  As the four examined photographs, Velasquez summoned Det. Lentini. She slid a photograph across the table to him, with its face down. Referring to the photograph, Velasquez told Det. Lentini that "he was there." The person depicted in the photograph was Wilmer Rodriguez ("Rodriguez"). Det. Lentini took the photograph and contacted colleagues at the sixth precinct to advise them that Rodriguez's photograph had been selected, and to give them identifying information concerning Rodriguez that was recorded on the photograph. While Det. Lentini did this, he recalls that his partner remained in the CATCH Unit viewing room with the four witnesses as they continued to examine photographs.

  When Det. Lentini returned to the CATCH Unit viewing room, Velasquez summoned him again. Det. Lentini sat across from Velasquez and she slid a photograph toward him, face down. Velasquez then made a motion with her right hand to indicate a gun. Det. Lentini removed Velasquez from the CATCH Unit viewing room and took her into an office. Once they Page 6 were in the office, Velasquez told Det. Lentini that the person depicted in the photograph is "the guy who shot the guy." Velasquez is alleged to have made this statement although she never claimed to have observed Blount being shot. Armed with this information, Det. Lentini contacted the sixth precinct again and relayed identifying information concerning the person depicted in that photograph to his colleagues. The person depicted in that photograph was Bermudez. According to the information that accompanied Bermudez's photograph, he was 6 feet tall and weighed 205 pounds. Thereafter, all seven witnesses were transported from the CATCH Unit back to the sixth precinct.

  Later that night, beginning at approximately 9:45 p.m., Darden, Thompson, Boyce, Hall, lyesi and Kent were shown a six-person photographic array by Detective Daniel Massanova. The photographic array included petitioner's photograph. Velasquez was not asked to view the photographic array because she had selected petitioner's photograph while at the CATCH Unit. Of these six viewers, only Thompson identified the petitioner as the shooter. Hall told Det. Massanova, that of the six persons depicted in the photographic array, petitioner's photograph was of someone who Hall thought might have been present at the scene of the shooting. lyesi was a bit more definitive, declaring to Det. Massanova that petitioner's photograph was of a person who was at the scene of the shooting. For his part, Kent identified petitioner's photograph as that of "the kid with the gold chain who reached behind his back for a gun." Darden could not identify anyone depicted in the photographic array, and Boyce told Det. Massanova that none of the persons he observed in the photographic array was the shooter.

  According to Det. Massanova, he displayed the photographic array to three additional persons that evening: Jose Rodriguez ("J. Rodriguez"), David Seldidge ("Seldidge"), and Angelo Page 7 Maysonet ("Maysonet"). J. Rodriguez identified petitioner's photograph as that of "the kid with the gold chain reaching for something." Neither Seldidge nor Maysonet was able to identify anyone whose face was displayed in the photographic array.

  On August 5, 1991, Lopez was seized by detectives and held for approximately 27 hours. During that time, Lopez was interrogated, prepared three written statements for Det. Massanova, made a videotaped statement and viewed a photographic array. At approximately 11:00 p.m., on the day he was taken into custody, Lopez viewed the photographic array containing Bermudez's photograph that had been shown to the six witnesses on the preceding evening. According to Det. Massanova, Lopez selected petitioner's photograph and identified him as "the guy who shot the guy who hit me." Lopez later stated in his videotaped statement that the shooter was named "Lou" and had the nickname "Wool Lou" because he sold cocaine. Lopez explained that crack cocaine was known on the street as "Wool."*fn1

  One day later and two days after Blount was shot, Bermudez was arrested for Blount's murder. Bermudez denied any involvement in the shooting and denied being in or about the Marc Ballroom on August 3 or 4, 1991. Friends of Bermudez visited the sixth precinct after learning of his arrest and told police officers that they had been with Bermudez during the evening of August 3 and the early morning of August 4, 1991, and they had not been at or near the Marc Ballroom.

  While being held at the sixth precinct following his arrest, Bermudez was required to participate in a corporeal lineup. Kent, Thompson, lyesi and Velasquez were asked to view the Page 8 lineup and to indicate only whether he or she recognized anyone in the lineup. Each indicated a recognition of Bermudez. Hall, Darden and Boyce also viewed the lineup. Each indicated that he did not recognize anyone.

  On August 9, 1991, a New York County grand jury returned an indictment against Bermudez charging him with murder in the second degree. Thompson and Velasquez were the only witnesses to the events of August 3 and 4, 1991, whom the prosecutor had testify before the grand jurors.

  After Bermudez's indictment, and prior to the commencement of his trial, he made an application to the trial court that evidence concerning the pretrial identification procedures employed by the state be suppressed at his trial. Bermudez alleged that impermissibly suggestive means were used to ensure that he would be identified as Blount's shooter. In response to that application, the trial court held a hearing on December 20, 1991. Detectives Lentini and Massanova testified at the hearing; none of the young people who examined photographs or viewed Bermudez in the lineup testified at the hearing. The detectives described, as set forth above, the circumstances under which: (a) petitioner's photograph was selected at the police CATCH Unit; (b) a photographic array was prepared and exhibited to various witnesses at the sixth precinct; and (c) Bermudez participated in and was identified during a corporeal lineup. No evidence was elicited by the prosecution during the pretrial suppression hearing to alert the presiding judicial officer or Bermudez's counsel that the prosecution was aware, based on a statement provided by Velasquez on August 4, 1991, and based on her grand jury testimony, that Velasquez never claimed to have observed the actual shooting of Blount, although she selected petitioner's photograph and identified him to Det. Lentini as the shooter. In addition, at the time Page 9 of the suppression hearing, Bermudez's attorney was unaware that Lopez had given a videotaped statement to the prosecuting attorney and Det. Massanova during which, among other things, he reviewed the photographic array from which he had previously selected petitioner's photograph and selected it again. The prosecutor would later characterize this as a confirmatory viewing of the photographic array by Lopez.

  Based upon the hearing testimony given by Detectives Lentini and Massanova and the exhibits received in evidence at that proceeding, the trial court determined that it did not need to hear testimony from civilian witnesses respecting any independent source for their identification of Bermudez. The trial court found that the pretrial identification procedures challenged by Bermudez, as impermissibly suggestive, were conducted properly. Consequently, Bermudez's application to suppress evidence concerning those pretrial identification procedures was denied.

  Bermudez proceeded to trial before a jury. No physical evidence linking Bermudez to the murder was presented to the jury. However, the jurors learned from Velasquez and Kent that petitioner was observed by them reaching behind his back to obtain a gun after Lopez identified Blount as the person with whom he had an altercation in the Marc Ballroom. The jurors also learned from Velasquez and Kent why each was certain that it was the petitioner whom they observed.

  Velasquez told the jurors that she had seen Bermudez while inside the Marc Ballroom, as he stood approximately 15 to 20 feet from her. She recalled that her attention was drawn to him because she found him attractive. She watched him for about five minutes and observed that he was wearing a gold chain with a medallion. Later, Velasquez saw Bermudez on the street as he approached the area where Blount was standing before he was shot. Velasquez testified that Page 10 Bermudez came within ten feet of her and she noticed that he had a gun behind his back as he passed her.

  Kent told the jurors that he saw Bermudez on the street after leaving the ballroom. Kent recognized Bermudez, because of the chain and medallion Bermudez was wearing, as someone he had seen two weeks earlier at another club. Kent stated that as Blount stood next to him on the street, he watched Bermudez as he approached Blount with his hand behind his back.*fn2

  The jurors also heard testimony from Lopez, Thompson and lyesi identifying Bermudez as the person who shot the fatal bullet at Blount. Lopez told the jury that he had known Bermudez by the nickname "Wool Lou" for approximately two years prior to August 1991. Lopez explained that he had approached Bermudez in the Marc Ballroom and told Bermudez about his altercation with Blount. Lopez recalled that Bermudez was wearing a large rope chain Page 11 with a medallion at that time.

  Upon leaving the ballroom, Lopez saw Bermudez again, and had a conversation with him. During that conversation, Lopez identified Blount to Bermudez as the person with whom he had fought earlier. Lopez informed the jurors that he watched as Bermudez walked to the occupant of a Pathfinder vehicle and had a conversation. The vehicle later traveled to the vicinity where Blount and his friends were walking. Lopez then indicated to Bermudez again who it was with whom Lopez had fought earlier. Lopez recalled that Blount put up his hands, as if to fight. Lopez testified that he saw Bermudez holding a small black gun. Lopez heard a gun shot, and then fled the scene. Earlier, when Lopez made his videotaped statement, he stated that he had not seen a gun. He claimed that he had only seen the flame expelled by a gunshot and then had fled the scene.

  Thompson explained to the jurors that he first saw Bermudez in the ballroom. Thompson stated that he looked at Bermudez's face, although his attention was drawn to Bermudez because of the gold chain and medallion he was wearing. Thompson recalled that he also saw Bermudez on the street, after Thompson left the ballroom. Thompson testified that he observed Bermudez remove his hand from behind his back and reveal a .25 caliber handgun. Thompson stated that he watched Bermudez's face as Bermudez shot Blount.

  Iyesi told the jurors that he saw Bermudez inside the ballroom. Thereafter, as lyesi was exiting the ballroom, he saw Bermudez and Lopez engaged in a conversation. Later, after he had completed his testimony, lyesi was approached outside the courtroom by three men, one of whom claimed to be petitioner's brother. The men told lyesi that Bermudez was innocent and that lyesi's identification of Bermudez was mistaken. Page 12

  For his part, and consistent with the position he took with law enforcement officials from the moment of his arrest, Bermudez presented an alibi defense to the jury. He and several of his friends recounted how they had spent the late evening and early morning hours on August 3 and 4, 1991, dining and driving around Manhattan in a recently refurbished automobile that Bermudez had acquired on August 3, 1991, with the help of his father. Bermudez denied knowing Lopez and also denied that he was known by the nickname "Wool Lou." He explained that his nickname was "Most," a moniker that had been bestowed upon him because, among his friends, he could eat the most and attract the most women. Darden, Boyce and Hall, witnesses who had not identified petitioner as the shooter, also testified on his behalf at the trial. None of them stated that he had concentrated on the shooter's face at the time of the shooting. Bermudez also called character witnesses to testify about his reputation in the community for peacefulness, to demonstrate that it would not be likely that he would be involved in violent behavior.

  The jury convicted Bermudez for murder in the second degree. After the verdict was announced, outbursts emanated from friends and family members of the petitioner and a threat was made to the prosecutor.

  Prior to the date on which he was to be sentenced, Bermudez made a motion before the trial court that the jury's verdict be set aside because of newly discovered evidence that could not have been procured prior to trial, and which was of such a nature that if it had been presented to the trial jury a probability existed that the verdict would have been more favorable to Bermudez. Although styled as a motion brought pursuant to New York's Criminal Procedure Law ("CPL") § 440.10(g), the motion was deemed by the trial court to be one brought pursuant to CPL § 330.30, since a motion brought pursuant to CPL § 440.10 would have been premature at that Page 13 juncture, given that no judgment had been entered against Bermudez.

  In any event, the trial court considered the petitioner's newly discovered evidence. It consisted principally of sworn statements by three female acquaintances of Lopez, with whom he had socialized at the Marc Ballroom on August 3 and 4, 1991. They claimed to know the person nicknamed "Wool Lou;" two of the women alleged that "Wool Lou" was also known by the nickname "Chino." One of the women provided a Manhattan address for "Wool Lou," but she explained that, during the late summer of 1991, "Wool Lou" had left New York for Virginia. Each of the women stated that Mike Gaynor ("Gaynor"), an investigator employed by Bermudez's trial counsel, had shown her photographs of Bermudez. Each claimed never to have seen Bermudez in or about the Marc Ballroom on August 3 or 4, 1991, although two of the women alleged that they had been with Lopez continuously while he was in the ballroom and were with him when he left it.

  The motion also contained a sworn statement from J. Rodriguez, the man whose Nissan Pathfinder automobile was at the scene of Blount's shooting. He stated that he did not see Blount's shooter, and did not see Bermudez near his vehicle on August 4, 1991. He, too, was shown Bermudez's photograph by Gaynor, but reported that he had never before seen Bermudez. Moreover, J. Rodriguez alleged that the substance of the sworn statement that he submitted in support of Bermudez's CPL § 330.30 motion had been provided to and recorded in written form by the police.

  Bermudez's trial counsel submitted an affirmation in support of the motion. In that document, he maintained that the prosecution had never provided him with any statement that law enforcement officials had obtained from J. Rodriguez. Therefore, he contended, Page 14 "exculpatory" information had been withheld from Bermudez resulting in an unfair trial.

  The remaining affidavit that accompanied Bermudez's CPL § 330.30 motion came from a flower vendor who was working on University Place at the time that Blount was shot. He recalled hearing a gunshot on August 4, 1991, and observing a crowd of approximately 25 people gather. After viewing three photographs of Bermudez that Gaynor displayed to him, the flower vendor determined that Bermudez was not among the crowd of people he had observed on August 4, 1991.

  After considering Bermudez's CPL § 330.30 motion, and the prosecution's opposition to it, the trial court denied the motion. Bermudez was subsequently sentenced to 23 years to life in prison.

  After the judgment of conviction had been entered, Bermudez made a motion in the trial court, pursuant to CPL § 440.10, that the judgment of conviction be vacated. However, the trial court found that the moving papers were imperfectly drawn and that the exhibits annexed thereto were not what they purported to be. As a result, it rejected the motion without prejudice to it being filed anew. Thereafter, a second CPL § 440.10 motion was filed.

  Bermudez's second CPL § 440.10 motion requested that the judgment of conviction entered against him be vacated because of: (a) newly discovered evidence; and (b) prosecutorial misconduct. The motion was accompanied by affidavits from, among others, Lopez, lyesi, Thompson, Kent and Velasquez, the five witnesses whose testimony formed the core of the prosecution's case against Bermudez at his trial. Messrs. Lopez, lyesi, Thompson and Kent swore through their affidavits that the identification testimony they gave during the trial was false and had been secured through threats and pressure that either Det. Massanova or the assigned Page 15 prosecutor brought to bear upon them. For example, in two affidavits, one dated September 22, 1992, and the other dated August 6, 1993, Lopez maintained that Det. Massanova advised him that Bermudez was a drug dealer and that if Lopez did not identify Bermudez's photograph as that of Blount's shooter, Lopez would be charged as the shooter. Lopez also explained, in contravention of the videotaped statement he made to Det. Massanova and the assigned prosecutor as well as his trial testimony, that "Wool Lou" is not Bermudez but is Luis Munoz ("Munoz") and, furthermore, Munoz shot Blount. However, in May 1992, four months before he signed his September 1992 affidavit, in a recorded telephone conversation with Gaynor, Lopez denied that the police had threatened or coerced him and he reaffirmed that Bermudez was "Wool Lou."

  Iyesi's affidavit is dated July 23, 1993. In the affidavit, lyesi recounted that he advised Det. Massanova that Blount's shooter was a man with a slim build like lyesi's. In addition, lyesi stated that he selected Bermudez when he viewed a lineup on August 6, 1991, because Bermudez had a fade-style haircut. lyesi recalled that he expressed to detectives and to the assigned prosecutor his doubt that Bermudez was Blount's shooter. However, the assigned prosecutor, according to lyesi's affidavit, pressured him into identifying Bermudez at the trial by threatening to send lyesi to jail if he refused to do so. lyesi also recalled that the prosecutor made references to lyesi's pending criminal case and to assistance that might be rendered to lyesi to dispose of that matter in order to "convince" lyesi to identify Bermudez at the trial.

  Iyesi claimed that he felt powerless, confused and afraid, due to the prosecutor's power and his temper, and, based on those reasons, he agreed to give identification testimony at Bermudez's trial. lyesi also noted, in his affidavit, that he had been shown 17 photos of Hispanic Page 16 males by counsel who was then assisting Bermudez with his CPL § 440.10 motion. From those photographs, lyesi selected Munoz's photograph and was told that Munoz was known by the nickname "Wool Lou." lyesi also selected a photograph of a person he observed on August 4, 1991, wearing a chain with a medallion. He was advised that the person depicted in that photograph was named Spencer Rivera and went by the nickname "Spenny."

  Thompson's affidavit also contained a description of the shooter. In that document, Thompson described the shooter as a person of approximately 5' 8" to 5' 9" in height, who weighed approximately 160 pounds, was skinny with hazel eyes and had a fade-style haircut. Thompson recalled seeing a photograph of Bermudez while at the CATCH Unit and stated that he selected Bermudez subsequently, when viewing the lineup, because of his recollection of the Bermudez photograph that he had seen at the CATCH Unit. In December 1991, prior to Bermudez's trial, Thompson recalled meeting with the assigned prosecutor at his office to prepare for the trial. At that time, Thompson remembers that he expressed to the prosecutor a reluctance to testify because he doubted his identification of Bermudez was accurate. Thompson explained that his doubt was based on the fact that it was dark and late when Blount was shot and, that during the lineup procedure, he had only seen Bermudez in a seated position; therefore, he could not observe his entire body. Thompson indicated that, when he told the prosecutor of his reluctance to testify, the prosecutor yelled at him and reminded Thompson of his own involvement with the criminal justice system. At that time, Thompson had a criminal charge pending against him. Thompson's recollection is that the prosecutor made it clear that he could help Thompson if Thompson would help him.

  Thompson's reluctance to testify at the trial persisted. As a result, the prosecutor Page 17 requested that the trial judge issue a material witness warrant for Thompson's arrest. The warrant was issued and executed; thereafter, Thompson was brought to the prosecutor's office by police officers. There, he and Kent met with the assigned prosecutor to prepare their trial testimony. Thompson maintains that, when he was called to testify at the trial, he was angry and unsure about what to do because, as he looked at Bermudez in the courtroom, he thought to himself that Bermudez was not the person who had shot Blount. Thompson claims that he said what the prosecutor told him to say at the trial. However, Thompson maintains that following the prosecutor's instructions was a mistake, since Bermudez was not the person who shot Blount.

  On December 19, 1991, the date on which the trial court held the pretrial suppression hearing, the criminal charge that was pending against Thompson was dismissed, because the assistant district attorney assigned to handle that matter determined that she lacked sufficient evidence to prosecute him. Bermudez's prosecutor maintains that the determination not to prosecute Thompson was not the result of any intervention on his part. Moreover, he points out that, inasmuch as the charge that was pending against Thompson was dismissed prior to Bermudez's trial, it could not have been used as leverage to extract any particular testimony from Thompson that was detrimental to Bermudez.

  Kent's affidavit corroborated Thompson's recollection of certain events; Kent was also arrested pursuant to a material witness order. Kent's affidavit indicated that in January 1992, after he was arrested pursuant to a material witness warrant and brought to the prosecutor's office, Bermudez's prosecutor used pressure to secure trial testimony from him and from Thompson. Kent claimed that, even though he expressed a reluctance to testify, because he could not say positively that Bermudez was at the scene of the shooting, the prosecutor employed Page 18 "some strong persuasion," under which Kent agreed to testify against Bermudez. Kent now says that testifying against Bermudez was a mistake.

  For her part, Velasquez explained, through her affidavit dated August 21, 1993, that she no longer believed that her testimony linking Bermudez to the shooting of Blount was accurate. She explained that she had been shown 21 color photographs of male Hispanics by counsel representing Bermudez in connection with his CPL § 440.10 motion. "Something clicked inside [her] when [she] saw these photographs." Velasquez stated in the affidavit that she was able to remember things about the shooting incident more clearly in August 1993 than when they first happened. While she believed previously that Bermudez was the person whom she observed at the scene of Blount's shooting, wearing a chain with medallion and reaching for a gun, she realized, by August 1993, that Bermudez was not that person. Velasquez claimed that when she identified Bermudez during the lineup on August 6, 1991, it was based upon a quick glance at him and her remembrance of the photograph of him that she had seen at the CATCH Unit. Furthermore, Velasquez recalled that when she testified at Bermudez's trial, she tried to avoid looking at him. She explained in her affidavit that she was frightened because she had been told that Bermudez was a "big drug dealer who could hurt [her]." Therefore, according to Velasquez, she wanted to do the right thing at the trial and she did "what [she] came prepared to do," that is, testify against Bermudez. However, she realizes that her identification testimony at Bermudez's trial was a mistake.

  Six months prior to executing her affidavit, Velasquez had contacted the prosecutor. Velasquez reported to him that she was receiving telephone calls from Bermudez's parents and his brother. She stated that they asked her repeatedly to sign a document in return for money. Page 19

  Moreover, Velasquez alleged that the person with whom she spoke on the telephone and who claimed to be the petitioner's brother, intimated that he could have harmed her already, had he wanted to do so.

  The prosecutor contacted Bermudez's trial counsel and asked him to appear before the trial judge with: petitioner's parents, his brother and counsel's investigator, Gaynor, so that the court might hear Velasquez's allegations and, thereafter, direct Bermudez's family members and the investigator to refrain from contacting Velasquez and the other trial witnesses. On the date the trial judge was scheduled to meet with the parties, Bermudez's trial counsel advised the court that, due to another commitment, he could not attend the conference. Neither petitioner's family members nor his attorney's investigator appeared at court for the conference.

  The affidavits prepared by lyesi, Thompson, Kent and Velasquez all contained descriptions of the identification procedure at the CATCH Unit that contrasted sharply with the description provided by Det. Lentini of an orderly, regulated and police-monitored process, lyesi, Thompson, Kent and Velasquez each recalled being together and viewing photographs with Hall, Darden and Boyce. They recalled discussing various photographs that were contained in the file cabinets at the CATCH Unit that were of persons whom they knew. They also recalled that when photographs of persons who appeared to have been among those in or about the Marc Ballroom were selected from the file cabinet drawers, the photographs were circulated and discussed openly, as the viewers remarked about whether the person depicted in a particular photograph was present on University Place at the time of the incident. Absent from the affidavits submitted by lyesi, Thompson, Kent and Velasquez is any clear indication concerning whether police personnel were with them throughout the time that they viewed photographs at Page 20 the CATCH Unit.

  Darden and Boyce, who also submitted affidavits in support of Bermudez's CPL § 440.10 motion, like the others who were transported to the CATCH Unit, described the atmosphere there very differently from the way Det. Lentini did. Darden and Boyce corroborated those statements in affidavits submitted by the others that described a communal review of photographs at the CATCH Unit, with police officers present in the vicinity of the viewers, but not monitoring closely the activities of those who were viewing the photographs. They also corroborated the statements made by the others that various photographs were discussed freely and openly, as they were removed from the file cabinet drawers at the CATCH Unit. Darden's affidavit indicated that at first, he, Hall and Boyce were examining photographs alone and that they were joined later by the other viewers. Darden noted that, when he discovered Lopez's photograph, Thompson and lyesi, who were looking over his shoulder, began shouting "that's him; that's him." However, Darden made no mention in his affidavit of the fact that Velasquez selected two photographs at the CATCH Unit.

  Boyce, who submitted two affidavits in support of Bermudez's CPL § 440.10 motion, also recounted a meeting he had with counsel to Bermudez. During that meeting, 21 photographs were shown to Boyce. Boyce selected the photograph of the person he claims shot Blount, although Boyce testified at Bermudez's trial that he did not see the shooter's face. The person whose photograph Boyce selected as being that of Blount's shooter was identified to him as "Wool Lou."

  Elizabeth Munoz, who identified herself as Munoz's sister, also submitted an affidavit in support of the motion. In that document, she acknowledged that her brother was known as Page 21 "Wool Lou." Furthermore, she stated that Lopez had lived in her grandmother's home along with her and her brother. Moreover, she indicated that in the Fall of 1991, her brother had relocated to another state.

  Bermudez also sought relief through his CPL § 440.10 motion based on violations of New York law that requires the prosecution to surrender to the defense statements made by the prosecution's witnesses prior to their testifying at a hearing or a trial. See People v. Rosario., 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961); CPL § 240.45. In the motion, the petitioner alleged that, prior to the pretrial suppression hearing, the defense was not provided with an unredacted copy of Lopez's videotaped statement, although Det. Massanova made statements on that videotape concerning identification procedures that were the subject of his testimony at the suppression hearing. Petitioner's motion also alleged that the prosecution had failed to meet its obligations under Brady v. Maryland, 378 U.S. 83, 83 S.Ct. 1194 (1963), to disclose to petitioner's trial counsel material exculpatory information within the prosecution's possession. Among the things petitioner relied upon, in connection with this branch of his CPL § 440.10 motion, were: the prosecution's failure to disclose a copy of Lopez's videotape without all references to the location where Lopez's grandmother resided, the vicinity that "Wool Lou" frequented, redacted; the prosecution's failure to provide him with a stenographic transcription of the audio portion of the Lopez videotaped statement; the prosecution's failure, prior to trial, to provide him with a copy of the photographic array containing the photograph of Rodriguez or the photographic array containing the photograph of J. Rodriguez; the prosecutor's failure to elicit testimony concerning Hasani Woodard's ("Woodard") participation in the pretrial identification Page 22 procedures and her failure to link Bermudez to the shooting incident that occurred on August 4, 1991.

  The trial court characterized the petitioner's CPL § 440.10 motion as a document raising "nearly innumerable arguments and innuendo in a scattershot effort to locate a valid attack on the guilty verdict." The trial court found petitioner's motion papers to be "a maelstrom of confusing arguments, often presented in stream of consciousness form." Without holding a hearing, the court determined that the recantations by the prosecution's trial witnesses "appeared to be thoroughly unreliable and obtained under dubious circumstances." The court found that the petitioner's remaining contentions were not supported by the record evidence or were matters about which no timely objections had been made. Therefore, the motion was denied. Bermudez then made a motion to reargue, which the trial court also denied.

  Bermudez was granted leave to appeal to the New York State Supreme Court, Appellate Division, First Department, from the judgment of conviction and the denial of his CPL § 440.10 motion. In the Appellate Division, Bermudez raised six grounds upon which he urged that court to upset his conviction: 1) the trial court erred when it denied, without a hearing, the CPL § 440.10 motion based upon newly discovered evidence consisting of the trial witnesses' recantations; 2) the identification of Bermudez was obtained through the use of impermissibly suggestive identification procedures; 3) the identification of Bermudez was obtained as a result of police and prosecutorial misconduct that violated Bermudez's rights to due process and to a fair trial; 4) the exclusion from the courtroom of two excused jurors violated Bermudez's right to a public trial; 5) the prosecution violated its obligations under Rosario and Brady by failing to provide Bermudez with: a) a copy of the Lopez videotaped statement, prior to the pretrial Page 23 suppression hearing, b) an unredacted copy of the Lopez videotaped statement or a copy of the transcript of the audio portion of that videotape prior to trial, and c) statements made by identification witnesses indicating their lack of certainty with respect to their identification of Bermudez.

  Bermudez also alleged that he was denied a fair trial because of improper statements the prosecutor made during his final argument to the jurors. Among other things, the prosecutor characterized Bermudez as a "spoiled brat" whose parents catered to his every need. The prosecutor told the jurors repeatedly that the witnesses who testified on Bermudez's behalf, in support of his alibi defense, lied. Their testimony, according to the prosecutor, was "cooked up," that is, fabricated and the product of manipulative conduct employed by Bermudez and members of his family. Moreover, the prosecutor described the work of Bermudez's trial counsel as an exercise in distraction through the use of "smoke and mirrors."

  The Appellate Division affirmed petitioner's conviction unanimously. It also found that Bermudez's request that the trial court vacate the judgment of conviction, on the grounds of newly discovered evidence and acts of police and prosecutorial misconduct, was properly denied inasmuch as "the motion was based entirely on the affidavits of recanting witnesses, which the [trial] court properly rejected, relying on the inherent unreliability of recantations . . . as well as the highly suspicious circumstances, viewed in context of events at the trial, under which these recantations occurred." People v. Bermudez, 243 A.D.2d 367, 667 N.Y.S.2d 901 (App. Div. 1st Dep't 1997). The court explained that the affidavits were unworthy of belief and, therefore, it determined to reject each of Bermudez's various claims which were supported by facts asserted in those affidavits. The Appellate Division also found that the remarks made by the prosecutor, Page 24 in his closing arguments to the jury, at which Bermudez took umbrage, were all proper. The court declared that all the remaining contentions raised by Bermudez had been considered and found to be lacking in merit.

  Thereafter, Bermudez applied for leave to appeal from the Appellate Division's determination to the New York Court of Appeals. Bermudez urged that court to grant his application because the lower state courts had erred in finding that due process did not require that a hearing be held before Bermudez's post-judgment motion, made pursuant to § CPL 440.10, could be decided. Bermudez also alleged that the identification procedures employed by law enforcement officials involved in his case were impermissibly suggestive and that the pretrial suppression hearing held by the trial court was compromised by false testimony given by Det. Lentini concerning events at the CATCH Unit. In addition, Bermudez requested that the New York Court of Appeals review his case because of prosecutorial misconduct consisting of withholding Brady and Rosario material and making improper statements to the jury during closing arguments. Bermudez also argued that the prosecutor had secured the testimony of some witnesses improperly.

  The New York Court of Appeals denied Bermudez's application for leave to appeal from the determination of the Appellate Division. See People v. Bermudez, 91 N.Y.2d 923, 670 N.Y.S.2d 405 (1998). That court also denied Bermudez's application that it reconsider its determination to deny him leave to appeal. See People v. Bermudez, 92 N.Y.2d 847, 677 N.Y.S.2d 78 (1998).

  Bermudez then returned to the trial court with a new CPL § 440.10 motion seeking to have his conviction vacated. He alleged that newly discovered evidence created a reasonable Page 25 probability that he would be acquitted if a second trial were held. He also revisited some of the claims of prosecutorial and police misconduct that had been cited in his earlier applications to the trial court for post-trial relief. Among other things, Bermudez alleged, as he had earlier, that the report prepared by Det. Massanova of the responses he received from witnesses to the shooting incident when the detective displayed photographic arrays to them contained erroneous information; therefore, according to Bermudez, the detective's testimony at the pretrial suppression hearing was not accurate. Bermudez also alleged that the integrity of the pretrial suppression hearing was further compromised by inaccurate testimony given by Det. Lentini. In this connection, Bermudez relied upon affidavits he received from Woodard and her mother. Woodard was an acquaintance of Velasquez and was with her at the time that Blount was shot. Woodard's affidavit explained that she was summoned to the sixth precinct and was taken from there, along with other witnesses to the shooting incident, to the Manhattan CATCH Unit where she reviewed photographs. Bermudez claimed that, to the extent Det. Lentini's pretrial suppression hearing testimony did not discuss Woodard's role at the CATCH Unit and, further, to the extent that Det. Massanova struck Woodard's name from his report and her comment that she could not identify anyone when looking at a photographic array, the prosecution had withheld exculpatory information from Bermudez and permitted Detectives Lentini and Massanova to give inaccurate testimony to the court during the pretrial suppression hearing. In addition, Bermudez alleged that Woodard's failure to recognize him, while she was reviewing photographs made available to her by law enforcement officials, supported his alibi defense and undermined Velasquez's testimony. Page 26

  Bermudez also noted that the prosecution had failed to disclose to him that Kent had a prior criminal history at the time he testified at Bermudez's trial. Furthermore, Bermudez also noted that the prosecution had failed to disclose that Lopez had been abusing drugs at the time that Blount was shot. Moreover, Bermudez alleged that individual descriptions of Blount's shooter had been obtained by law enforcement officers from witnesses who were at the scene of the shooting, but were never surrendered to him; all that he received was a composite description.

  In support of his motion, Bermudez included an affidavit from Wilfredo Maldonado ("Maldonado"). Lopez had testified at the trial that Maldonado had introduced him to "Wool Lou," a fact that Maldonado denied in his affidavit. Through his affidavit, Maldonado reported seeing several of his neighborhood acquaintances on August 3, 1991, gathering before traveling to the Marc Ballroom. Maldonado stated that, as the group assembled, beer was consumed and marijuana was smoked. Maldonado recalled that some of those assembled had firearms and were awaiting the arrival of "Wool Lou" before heading to the ballroom. Maldonado indicated that he did not travel with the group to the ballroom because he had just been married to Lopez's cousin and intended to spend the evening at home with her.

  Maldonado's affidavit indicated that on August 4, 1991, during the early morning hours, Lopez visited Maldonado's apartment. At that time, Maldonado observed that Lopez had been hit in the face. According to Maldonado, Lopez explained that he had been involved in an altercation at the Marc Ballroom and had asked some of his acquaintances to "get even." Lopez informed Maldonado that a shooting had occurred, but Lopez stated that he was unaware of whether anyone had been killed. In the affidavit, Maldonado declared that Bermudez was "innocent." Maldonado explained that he knew this because he had not seen Bermudez among Page 27 the people who were gathering in Maldonado's neighborhood on August 3, 1991, intending to travel to the Marc Ballroom. Moreover, according to Maldonado, Bermudez is not "Wool Lou."

  For his part, the prosecutor maintained that much of the "newly discovered evidence," that Bermudez relied upon in bringing this CPL § 440.10 motion, was not newly discovered information at all. For example, he pointed out that in Bermudez's first CPL § 440.10 motion, Woodard's failure to identify him was discussed. In addition, the errors noted in Det. Massanova's report, particularly as it pertained to the striking of the notation which made reference to Woodard, had also been raised in that earlier CPL § 440.10 motion. The prosecutor also found Lopez's affidavit to be a rehash of claims that had been previously made by him in an affidavit through which he recanted his trial testimony. Since the court had previously considered that information and rejected it, the prosecutor saw no reason why the information should be credited in connection with the instant CPL § 440.10 motion.

  The prosecutor also urged the court to find that the affidavit submitted by Maldonado should not be given much weight because Maldonado had not been present at the scene of the shooting. Therefore, among other things, Maldonado had no basis upon which to determine that Bermudez was innocent.

  With respect to Bermudez's claim that the prosecutor had failed to disclose that Kent had a prior criminal history at the time he testified at Bermudez's trial, the prosecutor explained that he was unaware that Kent's true surname was Marchany and, therefore, had not conducted a criminal history check using that surname. The criminal history check that he had conducted was based on the surname Kent and that search did not yield a positive result. Page 28

  The trial judge denied Bermudez's CPL § 440.10 motion. In doing so, the court noted that, although a few new arguments had been presented by Bermudez through the motion, most of the arguments had previously been presented to the court and rejected. However, after considering all of the arguments raised by Bermudez, the court found the motion to be baseless. Bermudez made an application for leave to appeal from ...


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