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Fernandez v. Capra

United States District Court, S.D. New York

October 9, 2014

PABLO FERNANDEZ, Petitioner,
v.
MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, Magistrate Judge.

Pablo Fernandez, currently an inmate at Sing Sing Correctional Facility in Ossining, New York, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Fernandez was convicted of one count of Second Degree Murder following a jury trial in New York State Supreme Court held in January and February 1996. After trial, Fernandez received a sentence of 25 years to life imprisonment. For the following reasons, Fernandez's petition should be denied.

I. BACKGROUND

A. Arrest and Indictment

A warrant for Pablo Fernandez's arrest was issued on June 7, 1995, based on a felony complaint filed in the New York City Criminal Court. See Felony Arrest Warrant, dated June 7, 1995 (annexed as Ex. 1 to Declaration of Gabrielle E. Tenzer in Support of Petitioner Pablo Fernandez's Third Amended Petition for Writ of Habeas Corpus, dated Sept. 16, 2013 (Docket # 140) ("Tenzer Decl.")). Fernandez was indicted by a grand jury in New York County for murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. See Indictment (annexed as Ex. 2 to Tenzer Decl.). The indictment charged that on June 10, 1993, Fernandez caused the death of Ramon Quintero by shooting him with a pistol. Id.

B. Photographic Identifications and Wade Hearing

On January 10 and 11, 1996, New York Supreme Court Justice Leslie C. Snyder held a hearing on Fernandez's motion to suppress pretrial identifications made by witnesses pursuant to United States v. Wade , 388 U.S. 218 (1967). See Transcript of Proceedings Before the Hon. Leslie C. Snyder, held Jan. 10, 1996 and Jan. 11, 1996 (annexed as Ex. 4 to Tenzer Decl.) ("Wade Hg.").

The hearing testimony showed that on April 4 and 5, 1995, cousins Hickliff Rosario ("Hickliff") and George Rosario ("George"), who were also cousins of the victim, Ramon Quintero, identified Fernandez in photo arrays constructed by Officer Albert Melino, who was then assigned to the Manhattan District Attorney's Homicide Investigation Unit ("HIU"). Hickliff was the first to view a photo array, and he picked picture number "four, " which was a photograph of Fernandez. (Melino: Wade Hg. 11). George then viewed a photo array consisting of the same photos arranged in a different order from the one Hickliff had viewed. (Melino: Wade Hg. 13). George picked out number "one, " which was also a photograph of Fernandez. (Melino: Wade Hg. 15). Melino testified at the hearing that before presenting the photo arrays, he told Hickliff and George separately to "think back to the day in question" and to try to remember who they had seen commit the shooting. (Melino: Wade Hg. 8, 14, 33). Melino never told them they had identified the same person. (Melino: Wade Hg. 46). Hickliff and George later viewed a lineup conducted by Melino on July 20, 1995. Hickliff viewed the lineup first. (Melino: Wade Hg. 53). Hickliff identified the person in position number "five" as the person who killed Quintero. (Mshar: Wade Hg. 112-13). George identified the person in position number "two" as the person who killed Quintero. (Mshar: Wade Hg. 114-15). Both persons identified were Fernandez. (Mshar: Wade Hg. 122).

Following the hearing, Justice Snyder found that there was "no question that all identification procedures were non-suggestive and were not constitutionally impermissible" and denied "any motion to suppress any identification." (Wade Hg. 153).

C. State Court Trial Proceedings

The evidence at trial showed that "[o]n June 10, 1993, a man with a ponytail got out of a car in front of 504 West 135th Street and fired multiple shots from an automatic weapon at the persons in front of the building." People v. Fernandez , 249 A.D.2d 3, 3 (1st Dep't 1998). The surviving victim is referred to variously as "Eddie Serrano, " "Henry Gomez, " or "Macho." The Quintero homicide investigation went "dormant" for two years. (Tr. 92).[1] The investigation was reinitiated almost two years after the incident, when members of a Manhattan drug gang then under investigation for unrelated offenses provided information about the murder of Quintero to HIU.

We next summarize the relevant testimony presented at Fernandez's trial.

1. Detective Steven Mshar

In December 1993, Detective Steven Mshar became involved in investigating the activities of a gang known as the "Yellow Top Crew, " "Young Talented Children, " or simply "YTC." (Mshar: Tr. 571, 595). He also came to be involved in the investigation of another gang called the "Red Top Crew" or "RTC." (Mshar: Tr. 570). Mshar became familiar with Martin "Chango" Mejias, whom Mshar knew to be the leader of the YTC. (Mshar: Tr. 572). Mshar met with Mejias on several occasions, and he discussed with Mejias some of the criminal activity in which Mejias was involved. (Mshar: Tr. 573). Mshar first spoke with Mejias around August 1994. (Mshar: Tr. 596). He spoke with Mejias about fifteen or twenty times, the first time being in August and the next time being "around December." (Mshar: Tr. 597).

Subsequently, Mshar became involved "in the investigation of a homicide that took place on 135th Street... in Manhattan in which the deceased was named as Ramon Quintero." (Mshar: Tr. 574). According to Mshar, "this investigation actually started after Martin Mejias was interviewed... and he gave us information and based upon that information we started this investigation" into the homicide of Quintero. (Mshar: Tr. 593). Mshar testified that he received the "homicide folder" from the 30th Precinct and "had an investigator go out and reinterview and locate witnesses." (Mshar: Tr. 575). Mshar received the folder "[s]ometime in January or February of 1995." (Mshar: Tr. 597). On July 20, 1995, he "supervised a line-up and arranged for that line-up to take place." (Mshar: Tr. 575). The lineup included five "fillers" in addition to Pablo Fernandez. (Mshar: Tr. 579). Two witnesses ultimately viewed this lineup. (Mshar: Tr. 580). When the first witnesses viewed the lineup, Fernandez was seated in the second position and wore the number "five." (Mshar: Tr. 580-81). Officer Melino first brought Hickliff into the viewing room, but Melino did not enter the viewing room with Hickliff. (Mshar: Tr. 581-82). After Hickliff viewed the lineup, Mshar brought him out of the room. (Mshar: Tr. 582). Mshar saw Melino waiting for Hickliff in the hallway when Hickliff left. (Mshar: Tr. 582-83).

The second witness to view the lineup was George. (Mshar: Tr. 583). "Investigator Garcia" (also referred to as "Detective Garcia") brought George to view the lineup, and the two did not come from the same direction as Hickliff and Officer Melino. (Mshar: Tr. 584). After Hickliff viewed the lineup but before George viewed it, the lineup was altered so that Fernandez now wore number "two." (Mshar: Tr. 584-85). This change had been requested by Fernandez and his attorney. (Mshar: Tr. 585). After George viewed the lineup, he left the room and Investigator Garcia was waiting for him in the hallway. (Mshar: Tr. 585).

2. Hickliff Rosario

Hickliff, who was then in the ninth grade and was a cousin of Ramon Quintero, testified at Fernandez's trial. (Hickliff: Tr. 103-04). At the time of his trial testimony, Hickliff was on probation after having pled guilty in Family Court to possession of heroin with intent to sell. (Hickliff: Tr. 295-99).

On June 10, 1993, Hickliff had been playing basketball next to his building at 502 West 135th Street with his cousin Edwin Garcia at about 6:30 pm. (Hickliff: Tr. 106, 148). He was "about thirteen" at the time of the shooting. (Hickliff: Tr. 109). Hickliff testified that "[a]ll of a sudden a car pulls over in front of 504 and a guy comes out. He starts shooting." (Hickliff: Tr. 106). Hickliff testified that there were approximately five people standing in front of building 504 and that when the car pulled up, "[t]hey ran." (Hickliff: Tr. 161). Hickliff and Garcia did not run, however, even after the shooting started. (Hickliff: Tr. 164). When asked if he saw the man in the courtroom that he had seen exit the car and start shooting, Hickliff pointed to Fernandez. (Hickliff: Tr. 107-08). He testified to seeing two people in the car and stated that Fernandez exited from the passenger side. (Hickliff: Tr. 118-19). The car was double-parked and the passenger side was "[c]loser to the curb." (Hickliff: Tr. 122).

Hickliff testified that the gun "looked like an Uzzi [sic]" and it was "dark [] black" in color. (Hickliff: Tr. 126, 177). As the person began to shoot, Hickliff could see the "left part of his body." (Hickliff: Tr. 126). Hickliff saw the person shooting with his left hand extended and his right hand closer to his body. (Hickliff: Tr. 125). Hickliff was approximately 30 to 40 feet away from the shooter. (Hickliff: Tr. 127). After the shooting stopped, the person "ran back inside the car." (Hickliff: Tr. 129). When the person "turned to his left to get back into his car, " Hickliff could "see his face at that point." (Hickliff: Tr. 130). The car then left "[t]owards Amsterdam." (Hickliff: Tr. 130-31). At that point the car "was driving fast" but Hickliff "could see the defendant inside the car." (Hickliff: Tr. 132). Hickliff testified that as the car drove past, and was about ten feet away, the person in the passenger seat was facing Hickliff and "pointed a gun at [him]." (Hickliff: Tr. 132-34). The window was also "rolled down" and there was nothing "blocking [Hickliff's] view of his face." (Hickliff: Tr. 134). Hickliff testified that the shooter "had a ponytail" and that his hair was "grayish." (Hickliff: Tr. 128). When asked how Fernandez's hair was "different today, " Hickliff responded that "[h]e has a low haircut." (Hickliff: Tr. 129). Hickliff did not see the driver and could not testify as to what the driver looked like. (Hickliff: Tr. 173).

After the car made a right turn on Amsterdam Avenue, Hickliff "ran towards 504" and went upstairs to find his grandmother on the third floor, with whom he had been living at the time. (Hickliff: Tr. 135-36, 180). On the way, Hickliff observed that Quintero, whom he called "Manny, " had suffered a head wound and was on the ground. (Hickliff: Tr. 135, 137-38). He also saw "Macho" who "got shot in the throat." (Hickliff: Tr. 135). He did not call 911 or tell any of the other people in the vicinity to do so. (Hickliff: Tr. 179). Hickliff testified that, shortly thereafter, police arrived and that he spoke to some of the police and detectives that day. (Hickliff: Tr. 139). The police also brought Hickliff to the precinct in a police car about an hour after they arrived. (Hickliff: Tr. 194-196). At the precinct, Hickliff "wrote everything that happened" and "put [his] name to a statement." (Hickliff: Tr. 197).

The prosecution and defense stipulated on the record that there was only one recorded statement from Hickliff. (Tr. 205-06). Hickliff was shown this statement and testified that it did not contain his handwriting but that it was read to him at the precinct by a detective "[a]fter [he] signed it." (Hickliff: Tr. 206-07). He clarified that he told the defective what happened, the detective recorded what Hickliff was telling him in writing, and then the detective read to Hickliff what he had written down before Hickliff signed the piece of paper. (Hickliff: Tr. 212, 305). As recounted at trial, Hickliff told the detective that he had seen a white Hispanic male who was five feet, eight inches to five feet, nine inches tall and about 35 years old, with a thin build. (Hickliff: Tr. 215-16). He also said the man had graying hair and a small ponytail. (Hickliff: Tr. 218). He had also said that the person "had a U-21 or Mach ten automatic pistol, " and testified at trial that a "Mach ten" looks like an Uzi. (Hickliff: Tr. 219). That same night (i.e., June 10, 1993) he also "looked at certain pictures" but did not identify any of the pictured individuals as the shooter, instead saying that an individual in one of the pictures "looks like him." (Hickliff: Tr. 229-30). He also told the detective that the "person looked like the perpetrator if the hair was pulled back and the hair was a different color." (Hickliff: Tr. 264).

Two years later, on July 20, 1995, Hickliff was brought by Officer Melino by car to the District Attorney's Office, having been told that he was "going down for a lineup." (Hickliff: Tr. 140-41). Hickliff "had to wait about five minutes" before he viewed the lineup, and Officer Melino brought him to the room where he was to view the lineup. (Hickliff: Tr. 141, 143). Officer Melino did not enter the room with Hickliff. (Hickliff: Tr. 144). When the curtain opened, Hickliff "[saw] the defendant in that lineup" and he was wearing number "five." (Hickliff: Tr. 145).

3. George Rosario

George, a cousin of Quintero and Hickliff, also testified. (George: Tr. 936-37). He was sixteen years old at the time of trial. (George: Tr. 936). On the evening of June 10, 1993, George was riding up the block on his bicycle when he saw a car "make a u-turn" and stop in front of 504 West 135th Street. (George: Tr. 937, 939). The car was a Toyota Corolla of "a beige color" with "silver spray paint on the side" and "patches, " and it consisted of "two or three colors." (George: Tr. 944-45). George then saw a man with a gun exit the car's passenger side and the man "looked at [George's] face" before looking to the other side and beginning to shoot. (George: Tr. 943-44). At that point, George had stopped riding his bicycle in the middle of the street and was about twenty to twenty-two feet from the man who exited the car. (George: Tr. 945-46, 967). George could see Quintero, who was about eighteen to twenty feet away, standing with "Eddie" and a few other individuals. (George: Tr. 968). He could also see that the man who exited the car was holding a machine gun. (George: Tr. 973). When the man started shooting, he was "facing straight at [Quintero]." (George: Tr. 943). There was nothing blocking George's view of the shooter. (George: Tr. 946-47). George testified that the person's hair "looked... grayish like two to three colors but he had grayish hair" and "[y]ou could see the gray." (George: Tr. 996). He added that he "saw more the gray than the other color." Id . George also testified that the person had a "pretty long ponytail, " about four inches long, reaching somewhere between the base of his neck and the hairline. (George: Tr. 996-97).

George saw Quintero "throw himself into" the building. (George: Tr. 947). After the shooting stopped, George saw the shooter get back inside the same car, on the passenger side, and the car went up the block slowly and made a right turn onto Amsterdam Avenue. (George: Tr. 949-50). After the shooting, George cut his wrist punching a window pane because he was angry that his cousin had been shot. (George: Tr. 952, 977). He was taken in an ambulance to St. Luke's Hospital before Quintero was taken away. (George: Tr. 953). The police came to the hospital the next day, while George was still there, and they gave him a business card with instructions to come to the precinct to "see some pictures." (George: Tr. 955, 984-85). While in the hospital, George told one of the officers what he had seen that night. (George: Tr. 985). George went to the precinct approximately two days later, after he was released from the hospital. (George: Tr. 988). When he went to the office, he was shown several pictures. (George: Tr. 991).

On July 20, 1995, George went to the District Attorney's Office to view a lineup. (George: Tr. 961). Officer Melino came to pick up George along with his cousin Hickliff. (George: Tr. 962-63). The two waited in the lunch room until Melino brought Hickliff in to view the lineup while George stayed in the lunch room. (George: Tr. 964-65). Several officers were present with George in the viewing room but nobody told him "whom to pick out" or "which person to pick out." (George: Tr. 1000-01). George testified that when the curtain opened, George picked out the person "who did the murder." (George: Tr. 1001). He testified that Fernandez was wearing number "two." (George: Tr. 965).

When asked if George saw the man who shot his cousin in the courtroom, George pointed to Fernandez. (George: Tr. 938, 942). When asked if there was "anything different" about Fernandez between June 10, 1993, and the day of the trial, George responded, "[h]is hair." (George: Tr. 948). George clarified that on June 10, 1993, Fernandez "had like grayish hair, like a ponytail." (George: Tr. 949).

4. Jesus Canela

Jesus Canela testified that on the evening of June 10, 1993, he was standing between his building, number 506 on West 135th Street, and the building next to it, number 504. (Canela: Tr. 318-19). While he was standing between 504 and 506, he "saw a car coming. And it stopped between both the buildings." (Canela: Tr. 319-20). The car had been "going around the block... like five or six times" that day. (Canela: Tr. 320). It was a Toyota Corolla with a "primed burgundy" color, meaning it was a "burgundy car getting ready to get painted." (Canela: Tr. 320, 326). When the car stopped, it was double-parked. (Canela: Tr. 329). It was between a blue van and a gray car. (Canela: Tr. 320).

After the car stopped, "this man comes out of the car and he starts shooting." Id . The man "got out of the passenger side. He pulled out the gun, stood there for like two seconds and started shooting." (Canela: Tr. 331). Canela testified that the gun "was an Uzi." Id . When asked how the man held the gun while he shot, Canela indicated that the man had his right arm outstretched and his left arm extended, with the left hand under the right hand. (Canela: Tr. 331-32). Canela testified that when the man exited the car and started shooting, the man was "facing straight at the building" and Canela was "facing at him." (Canela: Tr. 332). It was still light out at the time of the shooting, but Canela was "seeing through the window of the bus." Id . Canela could not see the driver because the car had tinted windows. (Canela: Tr. 390). He also testified that the windows on the car were rolled up. (Canela: Tr. 391). At the time of the shooting, Canela was about twelve to fifteen feet away from the shooter. (Canela: Tr. 333). Canela said he saw someone named Carlito run "into the building first, then Manny went after him. Then he started shooting." (Canela: Tr. 334).

Canela testified that the man then got back into the car, and the car "started going slow to the corner and he ate the light, " meaning the car drove through a red light. (Canela: Tr. 335-37). Canela saw the car make a right turn on Amsterdam Avenue. (Canela: Tr. 337). After the shooting, Canela "went straight home." (Canela: Tr. 344).

Canela testified that the shooter's hair was "grayish and black" and that he "had a ponytail." (Canela: Tr. 334). When asked if he would recognize the shooter and whether he saw the person in the courtroom, Canela said "I remember his nose, his eyes and the mouth" and pointed to Fernandez. (Canela: Tr. 330).

Canela, who was eighteen years old at the time of his testimony, testified that he first spoke to authorities about the shooting of Ramon Quintero two weeks prior to his appearance at Fernandez's trial. (Canela: Tr. 315, 358). He said police officers had been "knocking on the apartments to see if [anyone] knew something about Mannie [sic]." (Canela: Tr. 359). Canela's was one of the apartments the police came to, and they "came into [his] apartment and [he] told them what [he] saw" after the police said they would "protect" Canela, meaning "[n]othing would happen" to him. Id . Canela recalled that the officers who came to his home were Mark Tebbens and A.J. Melino. (Canela: Tr. 360-61). The officers asked him how old the person who did the shooting was, and Canela told them "[h]e was in his 30's, 40's." (Canela: Tr. 378). He also told them the person was about his height, with gray hair and a ponytail. (Canela: Tr. 378-79). When asked at trial how old he thought Fernandez was, Canela said "[r]ight now he is in his twenties." (Canela: Tr. 407). When asked what led him to the conclusion that the shooter was in his thirties or forties, Canela responded, "[h]is hair." (Canela: Tr. 409-10).

Prior to trial, Canela also met and spoke with Assistant District Attorney Deborah Hickey and Officer Tebbens about the case. (Canela: Tr. 374, 376). Neither Hickey nor Tebbens asked Canela to make any photographic identifications of anyone other than the victim, Ramon Quintero. (Canela: Tr. 401-02). Although Hickey and Tebbens had told Canela that his trial testimony would entail cross-examination under oath, they did not tell him that Fernandez would be in the courtroom. (Canela: Tr. 384-85). The trial judge asked Canela if he "pick[ed] out this defendant because of where he was sitting, " and Canela answered in the negative. (Canela: Tr. 385-86). He testified that he picked the defendant "[b]ecause [he] recognized his face and that was him." (Canela: Tr. 385-86). Canela clarified that he recognized the defendant "[f]rom the date he shot Manny. Only his hair has changed. Only the hair." (Canela: Tr. 386).

Prior to the visit from Tebbens and Melino, Canela "never went to the police at all" and had never told his family members or anyone else what he saw the day of the shooting. (Canela: Tr. 369-70). He did not speak about the incident because he "was scared." (Canela: Tr. 405). Canela testified that in the days following the shooting, Canela was told by a friend named Petulo that Quintero had been killed, but he did not speak to anybody else about the shooting or what he saw. (Canela: Tr. 363-65). Canela also found out, two or three days after the shooting, that "[s]ome guy named Macho" had been shot in the neck. (Canela: Tr. 366-67).

5. Harold Marcano

Harold Marcano, a twenty-eight-year-old self-employed computer repair technician, testified that on June 10, 1993, he was at home in his apartment at 507 West 135th Street talking on the phone with a friend when he "heard three gunshots." (Marcano: Tr. 411-13). He "turned and looked out the window and [he] saw a man" who had "just finished shooting a gun and he had turned, got into a car and they drove off." (Marcano: Tr. 413). Marcano's window faced out onto 135th Street. (Marcano: Tr. 417). He stated that building 504 was "right across the street" from his apartment. (Marcano: Tr. 417-18). He added that "502, 504, 506 are directly across the street when I look out my windows." (Marcano: Tr. 418). When Marcano looked out his window after hearing the gunshots, he saw a man who "had just put his arm down" and "had a gun in his hand." (Marcano: Tr. 419). The man entered a double-parked car, and the car drove up the street. Id . The car was a "Toyota Corolla, early to mid 80's, burgundy, brownish color. Not in too good condition. It had silver or grayish primer on it, like a car had work done to it." (Marcano: Tr. 420). After hanging up with his friend and turning to the window, Marcano dialed 911 and told the operator what he had seen and heard. (Marcano: Tr. 423). The shooter was a male who was "[n]ot too dark. Like light. Fair complexion, " (Marcano: Tr. 424), by which he meant "[s]lightly brown tanned" (Marcano: Tr. 425). Marcano was able to see that the man had "a light colored shirt" with "vertical stripes" but could not get "a good look at his face" because Marcano's apartment is on the fifth floor. Id . Marcano continued to look out the window "on and off." (Marcano: Tr. 435). He saw "a kid... run out of the building" in front of which the shooting had occurred and "he ran down the street toward Broadway" holding his wrist as if he had been hurt. (Marcano: Tr. 435-36). "[N]ot too long after" the shooting, a police officer came to speak with him. (Marcano: Tr. 432).

6. Manuel Medina

Manuel Medina, a forty-four-year-old limousine driver, was "playing dominos... [on] the northwest corner of Amsterdam across a hundred 35th Street" on June 10, 1993, when he "heard what appeared to [b]e gun fires." (Medina: Tr. 507-09). Although Medina saw "people rushing over" to where the gunfire erupted, he "was more interested on looking what was coming out of the area." (Medina: Tr. 511). Medina testified that he "made eye contact" with "what appeared to [him] to be like an old beat up Toyota with two passengers in there." (Medina: Tr. 512). When the car left the scene, it "came to a stop because there was more traffic ahead of them" and that is when Medina "took a good brief moment to just observe." (Medina: Tr. 519). At that point, Medina was standing approximately fifteen feet away from the car, facing the passenger side of the car and "stareing [sic] right at [the passenger]." (Medina: Tr. 520-21). It was still light out at that time and there was nothing blocking Medina's view of the car. (Medina: Tr. 522-23). Medina was "concentrating... on the face" but testified that "his hair did have just different color. It seems like it was brown or gray." (Medina: Tr. 523). He could not testify as to what the individual on the passenger side was wearing, however, because he could "only see from the shoulder up." (Medina: Tr. 555). Medina stated that the individual's hair was "medium" meaning "not long, not short, " but he could not estimate the person's age. (Medina: Tr. 556). Medina could "vividly recall and see the right side of his face." (Medina: Tr. 556). He testified that the individual was "[l]ight skinned." (Medina: Tr. 558). When asked if he would be able to recognize either of the two passengers, Medina said "I probably will." (Medina: Tr. 513). Medina clarified that "when [he] saw this individual [he] only saw the profile of his right face from the vehicle." (Medina: Tr. 513). Medina then pointed to Fernandez. (Medina: Tr. 514). The judge then ordered Fernandez to stand up and show the right side of his face to Medina, and Medina confirmed that Fernandez was "the man [he] saw in the car" and more specifically, on the passenger side of the car. (Medina: Tr. 515-16).

After the shooting, Medina remained on the corner where he was standing for about an hour and then went home. (Medina: Tr. 536). He spoke to a police officer about what he had seen on that same afternoon. (Medina: Tr. 538).

Officers Melino and Tebbens contacted Medina about two or three weeks before trial, though prior to that he had not been in contact with the authorities since the day of the shooting. (Medina: Tr. 541, 545).

7. Detective William Parsons

Detective William Parsons, a member of the New York City Police Department for fourteen years, testified that he responded to a location at 135th Street between Amsterdam Avenue and Broadway on June 10, 1993. (Parsons: Tr. 602-04). Parsons was the lead detective on this investigation. (Parsons: Tr. 605). When Parsons arrived at the crime scene, he encountered "a lot of people in the street." (Parsons: Tr. 609). There were approximately six uniformed officers on the scene when Parsons arrived, and Parsons, along with Detective Frederick Appel, were the first detectives to arrive. (Parsons: Tr. 612). Parsons did not view the body of the deceased, and he learned that two other individuals had been taken to the hospital. (Parsons: Tr. 614). Parsons remained at the scene for "half an hour, 45 minutes" or "long enough to make the proper notifications" to people within the police department. (Parsons: Tr. 614-15). Parsons did not direct other officers to conduct any interviews. (Parsons: Tr. 615-16). He testified that "that's not the way it's done. You don't interview a witness or a possible witness at the scene of a homicide." (Parsons: Tr. 628-29). A "canvas" was performed later that evening. (Parsons: Tr. 636-37). According to Parsons, a "canvas" involves "a door to door search, apartment by apartment, a person by person search of the area surrounding a crime scene." (Parsons: Tr. 641). This canvas entailed ascertaining the names and addresses of witnesses. (Parsons: Tr. 637). Parsons did not believe that the names "Jesus Canela" nor "Manuel Medina" had been given to any of the officers canvassing the area. (Parsons: Tr. 637-38). Parsons also testified to receiving "certain anonymous telephone calls in regards to this investigation, " but none of the callers had mentioned the name "Pablo Fernandez" or "House."[2] (Parsons: Tr. 638). One anonymous caller also provided a license plate number, but when the police "ran the license plate through the DMV, " they were provided with "a photo of the person and the person really didn't fit the description... of what [they] had been getting as the person who did the shooting." (Parsons: Tr. 644).

While at the scene, Parsons had seen Hickliff, his mother, his aunt, and some other cousins, whom he knew to be family members of the deceased. (Parsons: Tr. 616-17). After finding out "who [Hickliff] was and... that he was present" during the shooting, Parsons "instructed someone to remove [Hickliff] to the 30th Precinct." (Parsons: Tr. 617-18). Parsons believed that Hickliff "was interviewed by someone else at the 30th Precinct, " and Parsons did not speak to any witnesses at the precinct. (Parsons: Tr. 628). Parsons testified that, in addition to being interviewed at the precinct, Hickliff "viewed photos at the precinct." (Parsons: Tr. 630). According to Parsons, Hickliff viewed "a minimum of a hundred photos." (Parsons: Tr. 631-32). Fernandez's photograph was not among those that Hickliff saw. (Parsons: Tr. 634). Hickliff had "chosen a photograph and said this looks like the shooter." (Parsons: Tr. 635). After having his recollection refreshed with a report of the interview with Hickliff, Parsons testified that Hickliff said "the guy looked like [the shooter] but his hair wasn't pulled back as the person that did the shooting was." (Parsons: Tr. 640-41). Hickliff also said "it was a different color" and indicated "it was like grayish or gray spots on the side of the person that did the shooting's head that he recalled." (Parsons: Tr. 641). Hickliff did not indicate the person in the photograph was the shooter, but stated that the person "look[ed] like" the shooter. Id.

Parsons then went to St. Luke's Hospital. (Parsons: Tr. 618). There Parsons met George who had not been shot but who had "cut himself pretty bad" on his hand. Id . Parsons left a business card and asked George to call him when he was released. (Parsons: Tr. 619). Parsons also went to Columbia Presbyterian Medical Center, and spoke with a doctor about Eddie "Macho" Serrano, who had been identified to Parsons as one of the gunshot victims. (Parsons: Tr. 610-11). Serrano was being treated in the operating room at the time of Parsons' visit. (Parsons: Tr. 610, 620). One of the officers present at the crime scene had given Parsons the name "Macho." (Parsons: Tr. 621). Parsons conducted a brief interview of Serrano the next day. (Parsons: Tr. 625). Serrano did not give a written statement. Id . Parsons did not see Serrano again after this encounter, although he made "many attempts to see him." (Parsons: Tr. 626). Parsons testified that he "used the services of everybody in the neighborhood that knew of him" but that Serrano "was very evasive." Id . Parsons testified that he "never really stopped the investigation" but the case "got to a point where [he] had exhausted all the leads that [he] had and [he] was just going over things again." (Parsons: Tr. 627). He said the case "got cold" around eight months later. Id.

8. Officer Albert Melino

Officer Albert Melino became involved in the investigation and arrest of members of the Yellow Top Crew in the summer of 1994. (Melino: Tr. 1178). Melino had been assigned to HIU in February 1994, prior to the arrests of the Yellow Top Crew members. Id . Subsequent to these arrests, Melino met with Mejias and also became involved in the Quintero homicide investigation. (Melino: Tr. 1178-79). Melino began by "read[ing] the case file" and going "through all the detective's notes." (Melino: Tr. 1179). Then he "tried to contact the witnesses they had already spoken to and see if they still remembered the case." (Melino: Tr. 1179-80). However, Melino was not "able to contact all of the witnesses that [he] discovered by perusing that file." Id . Melino contacted Hickliff, George, and Marcano, among other witnesses. (Melino: Tr. 1180-81). Melino also visited the neighborhood where the shooting occurred to "talk to people in [the] neighborhood" and to "recanvass" the area." (Melino: Tr. 1181). During the "early part" of the investigation, Melino and the officers with whom he was working, Garcia and Tebbens, "did not get to talk to very many people." (Melino: Tr. 1183). On July 20, 1995, Melino "brought George and [Hickliff] Rosario down to view a lineup." (Melino: Tr. 1184). Subsequent to the lineup, Melino and Tebbens returned to the neighborhood to "do recanvassing of the area." (Melino: Tr. 1185). During one such visit, during or after a major snowstorm, Melino and Tebbens had more success recanvassing buildings because more people were home than on prior visits. (Melino: Tr. 1185). On the day of the snowstorm, they "found an 18 year old boy named Jesus who was present at the time of the shooting and another gentleman, Manny who was also present at the time of the shooting." (Melino: Tr. 1186). Melino also "put the word on the street" that he wanted to speak to Eddie "Macho" Serrano, but could not locate him after "many attempts to do so." (Melino: Tr. 1186-87).

With respect to the lineup that took place on July 20, 1995, Melino "transported both the Rosarios down to [HIU's] office." (Melino: Tr. 1187). That is, he "picked them up in the car and drove them down." (Melino: Tr. 1188). He then "brought them up to [HIU's] office and put them in the lunchroom." Id . The Rosario cousins waited there "for some time" accompanied by either Melino or Detective Garcia. (Melino: Tr. 1188-89). At some point, Melino and Garcia "brought Hickliff and George down [from the 15th floor to the 9th floor] and put them in the Grand Jury room awaiting the lineup." (Melino: Tr. 1189). Subsequently, Melino brought Hickliff "down the hall to the line-up room" but Melino did not go in, instead waiting "outside the door." (Melino: Tr. 1190). Melino then took Hickliff "back upstairs to [HIU's] office." Id . After Hickliff and George viewed the lineup, Melino brought them home. (Melino: Tr. 1192).

Melino confirmed that, because he knew that Fernandez was scheduled for trial, he "went out... looking for witnesses other than the ones that [he] had." (Melino: Tr. 1196). That is, he "went out to recanvass buildings." Id . Melino testified that he had never "give[n] any money" to Canela or Medina for "coming down" to the District Attorney's Office. (Melino: Tr. 1202). However, Melino and the other detectives had paid for some meals for Canela and Medina, at times out of their own money. (Melino: Tr. 1203-04).

9. Martin Mejias

Martin Mejias, the leader of the Yellow Top Crew, testified at Fernandez's trial pursuant to a cooperation agreement with the District Attorney's Office. According to Mejias, the Yellow Top Crew was a drug-selling operation that operated between 106th and 110th Streets on Columbus Avenue in Manhattan. (Mejias: Tr. 748-49, 753-55, 784-85, 810). Mejias testified that he made "maybe a million dollars" in connection with his drug activity. (Mejias: Tr. 914). Mejias stated that, in addition to his drug activity as the leader of the Yellow Top Crew, he was also involved in "[v]arious shoot-outs and [had] ordered three homicides." (Mejias: Tr. 783). Mejias's last arrest had taken place on May 5, 1994. (Mejias: Tr. 792-93). Mejias was charged with "conspiracy" and pled guilty in exchange for "fifteen to life." (Mejias: Tr. 793). He testified that he entered into a cooperation agreement with the District Attorney's Office pursuant to which he had to "cooperate in full with this case and any crimes [he knew] of truthfully." (Mejias: Tr. 794). The agreement provided that Mejias would receive a sentence of "fifteen to life... if the Judge would permit it." (Mejias: Tr. 922).

In the spring and early summer of 1993, Mejias spoke with Jose Luis Marte, the leader of the Red Top Crew drug gang, about "an argument or a dispute" Marte was having with "a person from 135th Street." (Mejias: Tr. 795).[3] Marte told Mejias that Marte "was having some conflict with a kid on 135th Street named Manny, " and Mejias testified that "[p]revious to that Jose Luis had killed the dude's friend or cousin I believe." Id . According to Mejias, "Manny would make threats at Jose Luis" and "Jose Luis was fed up with that." (Mejias: Tr. 796). Marte "wanted Manny killed." Id . Mejias testified to never having seen Manny "drive around the block or make threats" toward Marte. Id . When asked if Mejias had "agree[d] to aid Jose Luis in some way in this matter, " id., Mejias testified that on one particular day, Marte, Mejias, Fernandez, and several other individuals armed themselves and traveled to 135th Street to see if they could find Quintero. (Mejias: Tr. 797). They "discussed going up to 135th street, going to see Manny or anybody else, to shoot the block up if we see Manny, shoot him." Id . He said there were nine people in the group but they "were two guns short" and that Fernandez "went to 107th Street to get another gun for him." Id . Mejias saw Fernandez return with a gun. (Mejias: Tr. 800). When the group arrived on 135th Street, however, "[n]obody was out there [and] it was already dark, " so they returned back to 109th Street where they had come from. Id . After that night, Marte told Mejias that Marte was going to hire Fernandez to have Quintero killed, and that Marte was going to pay Fernandez twenty-five hundred dollars. (Mejias: Tr. 801-02). During a subsequent conversation, Marte showed Mejias a "gun that he bought so he could give [Fernandez]." (Mejias: Tr. 802-03). Mejias said it was a "Mach-10" gun that was "jungle gray" in color. (Mejias: Tr. 803). The next time Mejias saw Marte after this conversation was the night of the homicide, and Marte told Mejias that "Manny was already dead." (Mejias: Tr. 804). Mejias traveled to 135th Street with Marte and another individual, and they "asked a kid on the block what had happened." Id . They were told that "some kid had got shot." Id.

At some point after June 10, 1993, Mejias had a conversation with Marte "about a disguise that [Fernandez] was supposed to wear to 135th Street." (Mejias: Tr. 808, 866). Mejias testified that Marte told him Fernandez "was going to color his hair with Halloween spray that you use to color your hair, from the previous Halloween. He had a can of dye of white or green." (Mejias: Tr. 808). Marte told Mejias that "they wouldn't be able to [recognize Fernandez] because he had used spray on his hair." (Mejias Tr. 866). Mejias had no knowledge, however, as to how Fernandez was wearing his hair on June 10, 1993. (Mejias: Tr. 867). He had seen Fernandez "a few times... in the month of May, " approximately "[b]etween [May] 15th and 30th of May." (Mejias: Tr. 867-68). When Mejias saw Fernandez during that period, he "would see [Fernandez] with a hat on in his car" and had seen him "with a ponytail" during the period of May "15th towards the end of May before the shooting." (Mejias: Tr. 868). Mejias also testified that Fernandez "had a ponytail about a week before the shooting on 135th Street." (Mejias: Tr. 903). Mejias saw Fernandez and Marte together again "a month later at most" after Quintero had been killed. (Mejias: Tr. 808).[4] At that time, Fernandez came to Marte's house and Marte "gave [Fernandez] some money." (Mejias: Tr. 809). Fernandez then left. Id . By that time, according to Mejias, Fernandez had "shaved [his hair] off completely." Id.

10. Raymond Rivera

Raymond Rivera, another member of the Yellow Top Crew, testified at Fernandez's trial pursuant to a cooperation agreement. (Rivera: Tr. 1134). Rivera was a "lieutenant" in the gang, meaning he "took orders from [another leader] and Chango, the two bosses" and "gave the orders to the rest of the workers." (Rivera: Tr. 1038-39). Rivera was in charge of carrying drugs and guns "from one place to another" and counting money. (Rivera: Tr. 1039). Rivera also admitted to having committed about five hundred felonies during his lifetime. (Rivera: Tr. 1093). He testified that on one particular occasion, he and some other YTC members got into a dispute with another drug dealer during which Rivera shot the drug dealer but did not kill him. (Rivera: Tr. 1040, 1094). Rivera had committed crimes in connection with his drug activity, including serving as a "lookout" for during an armed robbery for which he served two years in prison (Rivera: Tr. 1029-34), absconding from his work release program, and trespassing in connection with a domestic dispute (Rivera: Tr. 1035-36). On another occasion, he robbed a drug supplier of cash and drugs for selling him "garbage" (Rivera: Tr. 1113-14), and also stole "five kilos" of cocaine from a supplier (Rivera: Tr. 1117). Rivera served six months in jail for being "caught... with a bullet proof vest." (Rivera: 1110-11).

During his time as a lieutenant in the YTC, Rivera knew Jose Luis Marte of the RTC. (Rivera: Tr. 1053-54). According to Rivera, Mejias and Marte were "[r]eal tight, close friends." (Rivera: Tr. 1054). Marte told Rivera "he was having a dispute with [a] fellow on 135th Street." (Rivera: Tr. 1058). On one occasion, Marte told Rivera "[h]e planned to kill the kid." Id . Marte apparently said "he was going to kill him himself, " but another man by the name of "Trimboline" said "it can't go down like that because they're going to know... [and] [t]hey were going to point fingers on him." (Rivera: Tr. 1059-60). Marte decided to "pay somebody to do it" in order to avoid "fingers pointing towards them." (Rivera: Tr. 1060). During that conversation, Marte and Trimboline discussed "[w]ho they were gonna hire" and they were "talking about Pito and House." Id . Rivera also testified that Marte was "[a]nxious to see [Manny] dead." (Rivera: Tr. 1061). Rivera stated that, in addition to this conversation, there were "a couple of times" he discussed with Marte "having this person Manny killed on 135th Street." Id . According to Rivera, "every time Manny would drive by around the block, [Marte] would start making faces, cursing at them [sic], pointing the finger making threats." Id.

On the night Quintero was killed, Rivera was on the "block" at 109th and Columbus with Marte. (Rivera: Tr. 1062). At a certain point, when it was "getting dusky" and everybody that had gathered around the area had left, "[Marte] stayed there." (Rivera: Tr. 1063). According to Rivera, Marte "started laughing like about time.' And he goes they already killed him, that's good for his ass.'" Id . At that point, Fernandez "came up to [them]. And he said I go[t] him, I left him like a piece of shit on the floor" in Spanish. Id . Fernandez also "pulled the shell of the bullet" and said "this is the bullet that killed Manny." Id . Rivera testified that Fernandez also made hand gestures mimicking the movements of a pistol. (Rivera: Tr. 1154). Fernandez and Marte were "making jokes and laughing about it." (Rivera: Tr. 1063-64). Marte then said "my worries is over." (Rivera: Tr. 1064). Rivera testified that the only people present for this conversation were himself, Marte, and Fernandez. (Rivera: Tr. 1154).

When Rivera saw Fernandez that day at dusk, Fernandez "had a little ponytail, salt and paper hair, grayish." (Rivera: Tr. 1065). Fernandez's hair was "the same way a couple of days before" the shooting. (Rivera: Tr. 1066). The ponytail had "a little knot in the back... like a little ball." Id . Fernandez "had his hair in a ponytail" about a week before the shooting, but the hair was "shaved" a couple of days later. (Rivera: Tr. 1165-66). A few days before the shooting, Fernandez's hair was "[h]is natural color, " but sometimes Fernandez "would paint it a different color" and "sometimes he would wear a wig." (Rivera: Tr. 1167).

Rivera testified that he had a "falling out" with Mejias and another YTC leader named Tito, and he thereafter became involved in assisting a rival drug dealer in carrying out a "hit" against Mejias and Tito. (Rivera: Tr. 1045-46). Tito and Mejias wanted to kill Rivera because they became aware that Rivera "wasn't doing everything they wanted [him] to do." (Rivera: Tr. 1126). Rivera helped an individual named Ray Reyes identify Tito and Mejias because Reyes was apparently interested in killing those two men. (Rivera: Tr. 1123). Reyes paid a "hit man" to kill Tito and Mejias. (Rivera: Tr. 1124).

Rivera felt that "the more [he] ran from the cops, the worse it would have gotten for [him]" because he was "involved in a contract killing." (Rivera: Tr. 1121). Rivera decided to "hide out for a while, " and when he became aware that "the cops were looking for [him], " he decided to contact the District Attorney's Office. (Rivera: Tr. 1047-48). Rivera "decided to turn [him]self in" because he decided that he did not want to risk being prosecuted and "spen[ding] the rest of [his] life in jail." (Rivera: Tr. 1131-32). He turned himself in "on the advice of [his] lawyer and [his] girlfriend." (Rivera: Tr. 1132). The District Attorney's Office told Rivera that if he were to "speak the truth [about] any criminal activity [he] knew about, anything [he] was involved in, " he would not go to jail. (Rivera: Tr. 1137). The District Attorney's Office paid for Rivera to live in hotels and an apartment, and he also received "living expenses" from the District Attorney's Office. (Rivera: Tr. 1050-51).

C. The Verdict

On February 6, 1996, the jury found Fernandez guilty of murder in the second degree. (Tr. 1537).

D. Motion to Set Aside the Verdict

1. Motion Pursuant to N.Y. Crim. Proc. Law § 330.30

On February 15, 1996, Assistant District Attorney Deborah Hickey sent a letter to Fernandez's attorney, Hermione Perlmutter, stating that Officer Albert Melino had been arrested and charged with Criminal Sale of a Controlled Substance on February 9, 1996, three days after the jury reached its verdict in Fernandez's trial. See Letter, dated Feb. 15, 1996 (annexed as Ex. 6 to Tenzer Decl.). The letter stated that the "charge stems from events that allegedly took place in 1991 and 1992" and that the District Attorney's Office "was not in possession of sufficient information to permit disclosure until after the verdict was returned... on February 6, 1996." Id . On March 5, 1996, Fernandez filed a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30 on the grounds that the prosecution knew or should have known about the investigation of Officer Melino but had engaged in prosecutorial misconduct by failing to disclose this information to the defense during trial. See Motion to Set Aside the Verdict, dated March 5, 1996 (annexed as Ex. 7 to Tenzer Decl.) ("330 ...


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