Calendar Date: September 11, 2017
Kessler, Cohoes, for appellant, and appellant pro se.
E. Abelove, District Attorney, Troy (Vincent J. O'Neill
of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
by permission, from an order of the County Court of
Rensselaer County (Ceresia, J.), entered April 19, 2016,
which denied defendant's motion pursuant to CPL 440.10 to
vacate the judgment convicting him of the crimes of murder in
the first degree and burglary in the first degree, after a
a three-week jury trial held in May 2011, defendant was
convicted of murder in the first degree and burglary in the
first degree in connection with the January 2002 deaths of
Arica Schneider and Sam Holley. The victims were stabbed
multiple times while in their apartment in the City of Troy,
Rensselaer County. Two other individuals, Terrence Battiste
and Bryan Berry, were initially charged with the murders, but
their indictments were dismissed without prejudice when
defendant's DNA was matched to blood found at the crime
scene. At trial, defendant did not dispute that his DNA -
derived from a blood stain found on the victims' bed
sheet - and palm print were discovered at the crime scene.
After hearing evidence from, among others, the medical
examiner, an expert serologist, crime scene analyst and
meteorologist, the jury rejected defendant's explanation
that he discovered the victims' bodies the morning after
they had been murdered, that he was bleeding from a hand
injury he suffered while snowboarding the evening before at a
gorge located in Troy, and that his blood transferred onto
the victims' bedsheet as he attempted to move the
mattress to retrieve a hidden cell phone.
the verdict, defendant moved, pursuant to CPL 440.10 (1) (g)
and (h), for an order vacating his conviction on the grounds
of ineffective assistance of counsel and actual innocence.
County Court (Young, J.) denied the motion without a hearing.
Upon his direct appeal from the judgment of conviction and,
by permission, from the order denying his CPL 440.10 motion,
we affirmed the judgment (121 A.D.3d 1169');">121 A.D.3d 1169 , lv
denied 24 N.Y.3d 1086');">24 N.Y.3d 1086 ), but reversed the order
that summarily denied the motion, finding that defendant
raised sufficient evidence to warrant a hearing and remitted
the matter accordingly (id. at 1173-1174). After an
eight-day hearing, County Court (Ceresia, J.) denied
defendant's CPL 440.10 motion, and, with this Court's
permission, defendant now appeals.
People v Hamilton (115 A.D.3d 12');">115 A.D.3d 12 ), the Second
Department determined that a claim of actual innocence must
be established with clear and convincing evidence of
"factual innocence, not mere legal insufficiency of
evidence of guilt and must be based upon reliable evidence
which was not presented at the trial" (id. at
23 [internal citation omitted]; accord People v
Maxwell, 152 A.D.3d 622, 622-623 ; see People
v Thibodeau, 151 A.D.3d 1548, 1556 ; compare
People v Beckingham, 116 A.D.3d 1298, 1299 ).
While we recognize that in People v Caldavado (26
N.Y.3d 1034 ) the Court of Appeals opted not to
determine whether a freestanding claim of actual innocence is
viable (id. at 1037), we concur with the analysis
set forth in Hamilton and find that such a claim may
be raised pursuant CPL 440.10 (1) (h) (see People v
Hamilton, 115 A.D.3d at 26).
hearing, defendant repeated his explanation with regard to
the presence of his DNA and palm print at the crime scene.
Further, defendant's wife (then girlfriend), who did not
testify at the trial, confirmed that she observed and treated
defendant's injured hand when he returned home from
snowboarding the evening before the murders. Defendant also
offered testimony by Terry Labor, a forensic scientist, and
Stephen Wistar, a forensic meteorologist. Labor testified
that the blood stain on the bed sheet was transferred to the
sheet through contact with an existing wound, a finding
consistent with defendant's explanation and contrary to
the People's blood drop theory that defendant was cut
during the murders. Labor also opined that the palm print
would not have been a discernibly different color if it had
been made when the victims were murdered or when defendant
ostensibly entered the apartment the following morning - a
point contrary to the People's argument that the color of
the palm print showed that it was made at the time of the
testified that based on his review of the weather data and
the topography and location of the area where defendant
claimed to be snowboarding, there was some snow present at
the gorge during the time that defendant claimed he was
injured. Defendant also presented testimony by a witness who
claimed that he had been incarcerated with Battiste in 2005
and that Battiste spoke to him about details of the
victims' murders and admitted that he was the driver the
night they were murdered.
view, the evidence submitted at the hearing failed to
establish by clear and convincing evidence that defendant did
not murder the victims. Much of the evidence presented at the
hearing was also presented to the jury, which considered and
rejected defendant's explanation, and the jury's
verdict was upheld on appeal (see People v
Beckingham, 116 A.D.3d at 1299). At best, the additional
evidence submitted in support of the motion to vacate
arguably raised "[m]ere doubt as to the defendant's
guilt, or a preponderance of conflicting evidence as to the
defendant's guilt, " neither of which is sufficient
to support a motion to vacate a judgment based on actual
innocence (People v Hamilton, 115 A.D.3d at 27;
see People v Maxwell, 152 A.D.3d at 623).
Accordingly, we find that County Court properly declined to
vacate defendant's conviction pursuant to CPL 440.10 (1)
(h) based on actual innocence.
also argues that County Court should have vacated the
judgment of conviction based on ineffective assistance of
counsel. Specifically, defendant claims that trial counsel
failed to obtain and present expert forensic testimony, such
as Labor's, that would have countered the People's
theory that defendant was injured during the course of
murdering the victims and supported defendant's
explanation with regard to how his DNA and palm print were
found at the scene. Defendant also faults counsel for failing
to produce a weather expert, such as Wistar, to counter the
opinion of the People's expert that there was not enough
snow to snowboard in the gorge the evening prior to the
murders. Defendant further contends that trial counsel should
have allowed his wife to testify and should have objected
when the People used defendant's prearrest statements to
the police, questioned him about his tattoo and compared an
old photograph of defendant to a photograph of another person
purportedly seen outside of the victims' apartment the
evening of the murders. Finally, defendant claims that trial
counsel failed to put forth a viable defense based on the
culpability of Battiste and Berry.
criminal defendant's right to the effective assistance of
counsel is guaranteed by both the Federal and State
Constitutions (see U.S. Const, 6th Amend; NY Const,
art I, § 6). To determine whether a defendant received
effective assistance, we consider whether "the evidence,
the law, and the circumstances of a particular case, viewed
in totality and as of the time of the representation, reveal
that the attorney provided meaningful representation"
(People v Baldi, 54 N.Y.2d 137, 147 ;
accord People v Speaks, 28 N.Y.3d 990, 992 ;
People v Cassala, 130 A.D.3d 1252, 1253 ,
lv denied27 N.Y.3d 994');">27 N.Y.3d 994 ). The test is
"reasonable competence, not perfect representation"
(People v Oathout, 21 N.Y.3d 127, 128 
[internal quotation marks and citation omitted]; see
People v Malloy, 152 A.D.3d 968, 971 ).
Accordingly, we "must avoid ...