In the early morning hours of May 5, 2008, the defendant and his accomplice, Ashton Jacobs, shot twenty-four year-old Antonio Tate from point-blank range, killing him. Three eyewitnesses — one of whom was an overnight visitor to the area and a stranger to the defendant, and two of whom resided in the area and had been familiar with him for years — placed the defendant at the scene of the murder, as did the defendant himself. The same visiting eyewitness, having observed Jacobs and the defendant each shoot the victim, called 911 as Jacobs and the defendant fled the scene of the murder. The People's case at trial — neither an identification case nor a confession case and consisting primarily of the compelling testimony of the three eyewitnesses — provided the jury with overwhelming evidence of the defendant's guilt.^[FN1]

Robert Johnson, a fifty year-old Harlem-area minister, testified that on May 5, 2008, he [*2]was visiting his aunt who lived in the Polo Grounds Housing Development in upper Manhattan, when he heard what he believed to be an argument taking place in the courtyard outside of Building No. 4. Johnson looked out of the window of his aunt's fourth floor apartment and observed three men who appeared to be arguing. One of those men "went down to his knees," and within seconds, Johnson heard a "shot" that appeared to "penetrate[] the upper part of [the kneeling man's] body." (TR: 232).^[FN2] The first shot came from an individual wearing a "grayish . . . hoody." (TR: 233). Seconds later, the other individual fired two shots at the victim. That shooter was wearing a "blue hoody." (TR: 233). Within seconds of the shooting, Johnson observed the two shooters run through the courtyard, across another courtyard, and into the rear entrance of Building # 2.^[FN3] Johnson called 911 and reported what he had observed — including that one shooter wore a gray hoody, the other a blue hoody, and their direction of flight. While Johnson could not see the faces of the shooters, as they were obscured by the hoodies each shooter wore, he believed them both to be African American.^[FN4] Johnson told the jury that he could not discern the type of gun that each shooter possessed, but could see the outline of a gun in each shooter's hand.^[FN5]

Luke Gayle, a twenty-eight year-old student and lifelong resident of the Polo Grounds, testified that he and the victim, Antonio Tate, were best friends. Gayle explained that he also knew the defendant and Ashton Jacobs from the neighborhood. On May 4, 2008, shortly before the murder, Gayle saw the defendant and Ashton Jacobs together in a store buying beer — both were wearing black gloves. Gayle took note of the gloves as he found it "suspicious," as he had never seen either man wear gloves like that, and it was a "nice" day. (TR: 133-34). The defendant was wearing a blue hoody; Jacobs was wearing a gray hoody. Then, in the early morning hours of May 5, 2008, Gayle observed Tate meet up with the defendant, still wearing the blue hoody, in front of Building #4 of the Polo Grounds. Tate grabbed the defendant by the shoulders. As Tate was holding the defendant, Jacobs, still wearing the gray hoody, walked up to the two men.^[FN6] There was no one else in the vicinity of Tate, Jacobs, and the defendant. Jacobs appeared to be holding something in his hand. Gayle then heard a "gunshot" and saw a "spark" come from Jacobs's hand. (TR: 138-40). Gayle ran. About five seconds later, he heard [*3]"two more shots." (TR: 141). A few minutes later, Gayle went back to where Tate had been shot. Gayle testified that his best friend, Antonio Tate, lay on the ground, not moving.^[FN7]

Tieyana Terry, who lived in Building # 4 of the Polo Grounds, testified that on May 5, 2008, sometime after 4:30 a.m., she ran into the victim, Antonio Tate — Tate was with the defendant and Ashton Jacobs outside of Building # 4.^[FN8] Terry was familiar with the three men, whom she knew from the neighborhood for many years. Jacobs told Terry, "you didn't see nothing," and Terry, concerned that the three were "up to something," walked away. (TR: 85-86). Terry heard a "scuffle like a struggle" and heard Tate say "it don't have to be like that." (TR: 86). Jacobs pulled out a gun; Tate tried to run, but the defendant grabbed Tate and Jacobs fired. Terry heard additional shots as she quickly tried "to get away." (TR: 86). Later, Terry saw police officers trying to resuscitate Tate. After the shooting, Terry moved from the Polo Grounds.^[FN9]

Pursuant to a pre-trial ruling, the People introduced a heavily redacted recording of a telephone call that the defendant made while incarcerated on Riker's Island.^[FN10] During that telephone call, the defendant, referring to Tieyana Terry, stated, inter alia, "[s]omebody need to see that bitch . . . She ain't getting no reward money, so she just jeopardizing her fucking life . . .".

Dr. Hajar Sims-Childs testified that as a Medical Examiner with the Office of the Chief Medical Examiner (hereinafter "OCME"), she performed an autopsy on Antonio Tate. Qualified as an expert in Forensic Medicine, she testified that Tate had sustained three gunshot wounds — to the neck, right shoulder, and abdomen. She removed three bullets from Tate's body. Sims-Child concluded that based on the trajectory of the bullets and the locations of the wounds, the guns used to fire each bullet would have had to be pointed towards Tate, "angled downwards." (TR: 368-370).

Detective John Kraljic, a firearms examiner assigned to the Firearms Analysis Section of the New York Police Department (hereinafter "NYPD"), testified that he conducted microscopic comparisons of three shell casings that were recovered from the scene of the murder. Qualified as an expert in Ballistics and Firearm Analysis, he concluded that the three shell casings came from at least two different guns. Kraljic also examined the three bullets recovered during the autopsy and determined, similarly, that the bullets had been fired from at least two different guns.^[FN11]

The defendant testified on his own behalf at trial. The defendant, who grew up in the Polo Grounds, was living with his mother in Building # 4 in May of 2008. On the evening of May 4, 2008, the defendant had been "hanging out, drinking" in a barber shop with the victim, Antonio Tate, whom he had known since they were children. (TR: 384). The two parted ways at about 7:00 p.m. At approximately 10:00 or 11:00 that evening, the defendant returned to the barber shop and began drinking again. (TR: 391). Ashton Jacobs was present in the barber shop, but the defendant hadn't known him for very long and had only begun to hang out with him about two weeks prior. Sometime after 1:00 a.m. on May 5, 2008, the defendant left the barber shop and walked towards the Polo Grounds. He "hung out" outside for a few hours, but was no longer drinking as "the liquor stores [were] closed." (TR: 395-96). At about 4:00 a.m., the defendant and his friends decided to go to the store — the defendant wanted to buy cigarettes. When the defendant arrived at the store, he ran into an old girlfriend, with whom he talked while everyone else went into the store. The defendant could not recall what he was wearing that day at all, but denied that he had been wearing gloves, and told the jury that he was not wearing a hoody, as he did not own any hoodies.^[FN12] The defendant, forgetting that he wanted to buy cigarettes, walked back towards the Polo Grounds with Jacobs and others. He went into Building # 4, but then realized that he had forgotten to buy cigarettes, so he decided to go back to the store. As he was walking out of the lobby of Building # 4 shortly before the murder, he noticed that Tieyana Terry, whom he knew from the neighborhood, was walking in front of him.^[FN13] The defendant then walked outside and "bumped into" Tate. (TR: 400). The defendant shook hands with Tate, and "turned around" — "the barrel of a gun was in [his] face." (TR: 400). Jacobs, who was wearing a gray hoody, was holding the gun. The defendant "tried to run" but Tate got "behind [him] and grabbed the back of [his] shirt and tried to use [him] as a shield to hide behind." (TR: 402). Tate said "don't shoot." (TR: 403). Jacobs's hands were "shaking," as if he was "scared." (TR: 403). As a result of struggling with Tate, the defendant fell to the floor. Then appeared a man "with all black and a red something covering his nose on down coming out the back of building two." (TR: 404). On cross examination, the defendant edified this description, telling the jury that the man was wearing black pants and a black hoody. The man had a gun "down at his side." (TR: 405). The defendant got up and ran. As he ran, he [*4]heard one shot, and as he rounded the corner of Building # 2, he heard two more shots. The defendant did not see who had fired any of the three shots.

On February 16, 2011, the defendant was convicted of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. On March 7, 2011, this Court sentenced the defendant to an indeterminate term of imprisonment of twenty-four years to life on the murder conviction concurrent to a determinate term of imprisonment of twelve years to be followed by five years of post-release supervision on the possession of a weapon conviction.^[FN14]

Although this Court presided over the trial in this matter, in order to understand fully the post-conviction allegations raised by the defendant herein, the Court, in addition to reviewing myriad papers and exhibits submitted by the parties, heard extensive oral argument on several occasions. Notably, the facts relevant to the instant motion are not disputed.^[FN15] Indeed, on May 5, 2008 at approximately 4:42 a.m., police responded to a 911 call for a shooting in the Polo Grounds Housing Development located in upper Manhattan. Upon arrival at the scene — the courtyard in front of Building # 4 — officers were tasked with canvassing a wide swath of the Polo Grounds in an effort to locate any potential evidence. At this early stage of the investigation, and as the perpetrators had neither been identified nor apprehended, a detective, during a routine canvas of the area surrounding Building # 4, also decided to canvas Building # 2 — the largest of the residential towers in the Polo Grounds. There he was informed that a female custodial worker had earlier found a black t-shirt in the front lobby of that building. Although the detective had precious little information with respect to the perpetrators and their identities, and was aware that the murder had taken place in the courtyard of Building # 4, he, nonetheless, retrieved the black t-shirt from the dumpster where the worker had discarded it, vouchered it, and submitted it to OCME for testing, in the event it had any relationship to the murder. The defendant received a copy of the detective's DD5 detailing his retrieval of the t-shirt, a copy of the voucher prepared by the detective in connection with the t-shirt, and a copy of the request the detective submitted to OCME for laboratory testing to be performed on the t-shirt, all part of the Rosario material turned over by the People in advance of trial.^[FN16] On October 28, 2008, the People were notified by OCME that the shirt had been examined, and that DNA from an unknown male donor was detected on it. The People failed to provide the defendant with a copy of that OCME notification.^[FN17]

On December 12, 2013 — some two years after the defendant's conviction — OCME notified the People that they had received a "hit" with respect to DNA from an unknown male [*5]donor that had been detected on the black t-shirt. According to OCME, the DNA profile matched an individual named Levern Benn, known to the People as a long-term resident of Building # 4 of the Polo Grounds. See People's Affirmation at 7. Benn's DNA had been recently uploaded to a DNA database, as a result of a federal narcotics conviction.^[FN18] On December 13, 2013, the People provided the defendant's trial and appellate attorneys with a copy of this DNA Hit Report. Upon receipt of the DNA Hit Report, the defendant's appellate attorneys determined that the People had never turned over the earlier OCME notification revealing the presence of an unknown male donor's DNA on the black t-shirt.^[FN19] Based on the non-disclosure, and the post-conviction DNA hit, the defendant filed the instant motion.

The defendant has now filed a motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10(h). Specifically, the defendant contends that the People, by failing to turn over the OCME notification that revealed the presence of an unknown male donor's DNA on the black t-shirt, committed a Brady violation. Alternatively, the defendant moves to vacate the judgment of conviction pursuant to C.P.L. § 440.10 (g-1), arguing that had the jury learned of the post-conviction DNA testing results, there is a reasonable probability of a verdict more favorable to him. While the defendant's claims are distinct pursuant to statute, they are, nonetheless, inextricably interwoven, and fail for precisely the same reason — Levern Benn and his errant DNA had exactly nothing to do with the murder of Antonio Tate.

It is, of course, axiomatic that a defendant has a right to Brady material in the People's possession. See Brady v. Maryland, 373 U.S. 83 (1963). Brady material consists of evidence that is "either exculpatory or impeaching in nature." People v. Garrett, 23 NY3d 878, 885 (2014). In the instant matter, and based on the particular facts and circumstances present here, the undisclosed OCME notification did not constitute Brady material — it was neither exculpatory nor impeaching in nature. After all, there was no evidence linking a long-sleeved black t-shirt to the murder. Indeed, none of three eyewitnesses observed a fourth person at the scene of the murder. Nor did any of the witnesses — the three eyewitnesses, as well as the defendant himself — describe any of the shooters as having been clad in a black t-shirt. So, too, the shooters were observed fleeing into the rear entrance of the thirty-storied Building # 2, not the front lobby from where the t-shirt was removed and consigned to the trash. Moreover, there was nothing remarkable about the t-shirt itself. Indeed, in New York City, black is the new black, and t-shirts practically the young urban dweller's uniform. While the defendant may not have been made specifically aware by the People that the t-shirt contained DNA from an unknown male donor, that could not have come as much of a surprise. To be sure, t-shirts are generally worn by individuals bearing DNA. And, in this day and age, when forensics are commonplace, the black [*6]t-shirt would be remarkable only if it did not contain DNA evidence. At bottom, in the absence of any nexus between the garden variety black t-shirt and the murder of Antonio Tate, the t-shirt simply could not have constituted Brady material.

Moreover, to be entitled to relief based on an alleged Brady violation, the defendant must demonstrate prejudice. In other words, the defendant must establish a reasonable probability that the People's failure to disclose the OCME notification materially contributed to the verdict. See People v. Vilardi, 76 NY2d 67 (1990). Here, the defendant can not do so. Indeed, the People's failure to disclose the OCME notification did not prejudice the defendant for the very same reasons that the t-shirt did not constitute Brady material — a black t-shirt that not one witness described the two shooters as wearing, discovered in a housing development — home to several thousand residents — in a building lobby completely disembodied from the murder scene, could not have convinced the jury that the defendant was innocent of the crimes for which he was tried. Accordingly, the defendant's Brady claim is rejected.^[FN20]

Having concluded, therefore, that the black t-shirt possessed no evidentiary value — exculpatory or otherwise — the Court can only conclude the same of its wearer, Levern Benn. Nevertheless, the defendant assumes that Levern Benn and his DNA would be admissible, should he be granted a new trial. Not so. Of course, a defendant has an absolute right to present a defense of his choosing at trial. See People v. Carroll, 95 NY2d 375 (2000). That right does not, however, give a defendant "carte blanche to circumvent the rules of evidence." People v. Hayes, 17 NY3d 46, 53 (2011). While evidence tending to show that another party might have committed the crime(s) charged is admissible at trial, see People v. Primo, 96 NY2d 351 (2001), such a third-party culpability defense is not exempt from evidentiary strictures. Indeed, before evidence of third-party culpability may be admitted, a defendant must demonstrate some facts or circumstances tending to connect another to the crime. People v. Schulz, 4 NY3d 521, 529 (2005) (internal citations omitted). Evidence of third-party culpability may not "rest on mere suspicion or surmise." People v. DiPippo, 27 NY3d 127, 136 (2016). The court must, therefore, engage in the same balancing analysis as that which governs the admissibility of all evidence, and make a determination that the third-party culpability evidence is of sufficient probative value, as to be admissible. People v. Primo, 96 NY2d at 356.

Here, the utter lack of any evidence connecting either the black t-shirt or Levern Benn to the murder eviscerates the defendant's attempt to advance a third-party culpability defense. After all, Levern Benn's DNA was developed from an article of clothing not a single witness observed either of the two shooters wearing. And, the unremarkable t-shirt was abandoned in the lobby of a massive housing complex with several thousand t-shirt clad residents — including Levern Benn, the presumptive wearer of that t-shirt — in a location connected neither to the [*7]shooting itself, nor the direction of flight of the two shooters.^[FN21] Additionally, it remains unknown precisely when the t-shirt was abandoned in the residential tower lobby.^[FN22] So, too, there is no evidence that Benn was known to either the victim or his executioners. Moreover, there is no evidence that Levern Benn was even present in the Polo Grounds at the time of the murder, or even on the day of the murder.^[FN23] That Levern Benn may have been convicted of a drug offense — "large-scale," see Defendant's Memorandum at 2, or otherwise — years after the murder, does not transform him into a third party culprit. At bottom, the defendant continues to offer no evidence, new or otherwise, to connect either the black t-shirt or Levern Benn to the murder. And, in the absence of any such evidence, the defendant's post-conviction attempt to proffer a third-party culpability defense can not be countenanced.^[FN24]

In any event, assuming that evidence with respect to Levern Benn and his unremarkable black t-shirt were admissible at trial — as difficult as that may be to imagine — the defendant still would not be entitled to a new trial. Indeed, to be entitled to vacatur pursuant to the statute, the defendant must demonstrate "more than a mere possibility that the verdict would have been more favorable." People v. Hicks, 114 AD3d 599, 601 (1st Dept. 2014) (internal citations omitted). Thus, the defendant must demonstrate a reasonable probability that the verdict would have been more favorable to him. Id. Here, in the face of the overwhelming evidence of his guilt, there is no reason to believe that introducing the jury to Levern Benn and his clothing would have resulted in an outcome more favorable to the defendant — as Levern Benn and his t-shirt had no connection to the murder. Indeed, the tautology of that conclusion vitiates the defendant's instant arguments.

Most notably, three eyewitnesses — one of whom was a complete stranger to the defendant, and two of whom were personally familiar with him — testified at trial. Specifically, Robert Johnson told the jury what he had observed from his perch looking down on the courtyard for the entirety of the shooting. Indeed, not at all familiar with any of the three men, Johnson, nonetheless, described them to the jury; one African American man clad in a gray [*8]hoody, one African American man clad in a blue hoody, and one man shot multiple times. Johnson told the jury that he watched each hoody-clad man fire a gun at their victim, before fleeing through the courtyard, across another courtyard, and into the rear entrance of Building # 2. Johnson, having witnessed the shooting, from start to finish, saw no one else in the vicinity of the two hoody-clad murderers and their victim — no other man, no other person, no one wearing a black t-shirt.^[FN25] Additionally, Luke Gayle, who had grown up with the victim, and who had known both the defendant and his co-conspirator for many years, observed the three men seconds before the murder — the defendant clad in a blue hoody, Jacobs in a gray hoody. Gayle observed Jacobs fire the opening shot at his friend, and heard the second and third shots follow some five seconds later. Gayle did not see anyone else in the vicinity of the three men — no other man, no other person, no one clad in a black t-shirt.^[FN26] So, too, Tieyana Terry — also personally familiar with the three men — observed them seconds before the shooting involved in a struggle. In fact, Terry also watched as the defendant's co-conspirator, Ashton Jacobs, fired a gun into Antonio Tate's body. Like Gayle, Terry saw no one else in the vicinity — no other man, no other person, no one wearing a black t-shirt.^[FN27] As the foregoing demonstrates, the testimony of the three eyewitnesses, each having observed but three men — the two shooters and their victim — and no one else at the scene of the murder in a black shirt or otherwise, and each having viewed the murder from a unique vantage point, constituted compelling and overwhelming evidence of the defendant's guilt. That the overwhelming evidence of the defendant's guilt was partly circumstantial in nature, is of no moment. Indeed, the unbroken chain of evidence foreclosed any possibility that an unseen, black hoody and red bandana-clad man, wielding a third firearm, had committed the murder. To be sure, the eyewitness testimony alone was sufficient for the jury to conclude that the defendant had committed the crimes for which he was convicted.^[FN28]

Furthermore, the eyewitness testimony was corroborated, in large part, by other compelling evidence. Indeed, the defendant admitted that he had been present with Ashton Jacobs at the scene of the shooting. Additionally, three shell casings were recovered from the scene of the shooting, and a ballistics expert told the jury that those three shell casings were ejected from at least two different guns. Further, three bullets were recovered from the victim's [*9]body during the autopsy, and the ballistics expert explained that those three bullets had been fired from at least two different guns. Also, video surveillance recordings corroborated Terry's recounting of the moments leading up to the murder. Finally, the telephone call that the defendant made while incarcerated, threatening Tieyana Terry's life if she testified against him, constituted strong consciousness of guilt evidence. In sum, the eyewitness testimony, coupled with the corroborative ballistics, consciousness of guilt, and other evidence, convincingly proved the defendant's guilt at trial, beyond any reasonable doubt. Thus, Levern Benn and that ordinary t-shirt, which the defendant now asserts entitle him to a second bite at the apple, constitutes nothing more than a quintessential red herring.

The defendant, citing the "shaky" eyewitness testimony, see Defendant's Memorandum at 3, nevertheless, contends that the verdict would have been more favorable to him, had the jury learned that a long-sleeved black t-shirt containing the DNA of Levern Benn had been recovered in the front lobby of Building # 2. The defendant's contention, however, overlooks one salient fact that bears repeating — there was simply no evidence connecting the black t-shirt or Levern Benn to the murder — then, or now. None. Despite the foregoing, the defendant claims that he established a link between the t-shirt and the murder, as, when interviewed by detectives at the time of his arrest, he told them that a man clad in black with a red bandana covering his face had been the actual shooter. But when the defendant reiterated the unknown shooter story at trial, he made plain that the unknown man had been wearing a black hoody. Thus, the defendant's testimony fell far short of closing the evidentiary loop. To credit, therefore, the defendant's latest version of events, the jury would need to make numerous evidentiary leaps and engage in rank speculation, all in an effort to close the yawning gaps in the defendant's logic. Indeed, the jury would be forced to conclude that Levern Benn — in the absence of any evidence that he knew the defendant, his co-conspirator, or their victim — clad in a black t-shirt, committed the murder alone and invisibly, and strategically rid himself, whilst in flight, of the damning DNA soaked t-shirt, in the public lobby of a residential tower at the Polo Grounds Housing Development. Such a flawed, illogical, and wholly unsubstantiated argument borders on the absurd and does not warrant a new trial.

The defendant's motion to vacate the judgment of conviction is denied. This constitutes the Decision and Order of the Court.