Not so Swift

The decision in People v Sammy L. Swift (2009 NY Slip Op 07009 [4th Dept 10/2/09]) is a short one, and you really have to read it all to appreciate it, so here goes:

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied and the judgment of conviction is reinstated.

Memorandum: On a prior appeal, we affirmed a judgment convicting defendant upon a jury verdict of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (§ 160.15 [1]; People v Swift, 241 AD2d 949, lv denied 91 NY2d 881, 1013). The People appeal from an order granting defendant's motion to vacate the judgment of conviction on the ground of newly discovered evidence (see CPL 440.10 [1] [g]), i.e., post-trial DNA test results indicating that the blood found at the crime scene was exclusively that of the victim. We agree with the People that the DNA test results are not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 440.10 [1] [g]). At the trial, the People presented evidence that blood at the crime scene was consistent with both the victim's blood type and defendant's blood type. Although the People relied upon that evidence to corroborate the testimony of defendant's accomplices (see Swift, 241 AD2d 949), we conclude that the remaining nonaccomplice evidence tends to connect defendant to the robbery and murder and is sufficient "to assure that the accomplices have offered credible probative evidence" (People v Breland, 83 NY2d 286, 293). The contention of defendant in his pro se supplemental brief that the sister of the accomplices was herself an accomplice whose testimony required corroboration was not raised in the motion and thus is not properly before us (see generally People v Goodell, 221 AD2d 1009, lv denied 88 NY2d 848). We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are lacking in merit.

Although the facts in the decision are typically sparse, lets try to translate to more clearly see what is really going on here:

1. Defendant lost the direct appeal of his robbery/murder conviction.

2. At trial the People argued that the blood at the scene belonged to both the victim and the defendant.

3. This evidence corroborated the accomplice testimony - apparently the only other evidence linking defendant to the commission of the crime.

4. The accomplices' sister was an accomplice too, but since her status as an accomplice wasn't preserved, her testimony now becomes the only "non-accomplice" evidence, apart from the blood evidence, connecting defendant to the crime.

5. After trial, defendant was able to demonstrate that the blood at the scene, contrary to the People's theory at trial, belonged only to the victim.

6. Defendant argued that had the truth been known by the trial jury, this would have created a reasonable possibility of a more favorable verdict in a case where the only other evidence against the defendant was accomplice evidence.

7. The lower court agreed and reversed defendant's conviction.

8. The Appellate Division held that this would NOT create a reasonable possibility of a more favorable verdict because of the other evidence connecting defendant to the crime. What other evidence? Why the testimony of the accomplice/non-accomplice sister, of course.

See if you can identify the problems with this decision - it's like one of those drawings containing the hidden objects - there's always one more.

First, the court equates the existence of what it somewhat disingenuously characterizes as non-accomplice evidence - the sister's testimony (and if there was other non-accomplice evidence, we couldn't know it from the facts recited in the decision, so I think this characterization is fair) - with a failure by the defendant to demonstrate a reasonable possibility of a more favorable verdict. But to prevail at this stage, the defendant need not prove that he WOULD prevail at trial, only that he MIGHT, in light of the new evidence. That the People may still have some evidence in their favor doesn't decide this question.

Another problem? The trial court - who, remember, sat through the trial, heard all the proof, saw the witnesses, and presided over the 440 hearing - is generally to be accorded "great deference," the cases so holding are legion, but only when ruling in favor of the People?

According to this decision, the prosecution's (untruthful) argument at trial that defendant's blood was present at the crime scene wasn't a significant consideration during jury deliberations? Do you think that is true? Do you think your average juror, if asked, would think so? Do you think this jury thought so?

Would the decision have been the same if defendant were convicted of grand larceny? This looks an awfully lot like the application of an Extremely Bad Man exception to the Due Process Clause.

Imagine that you're a second-year law student. This is the case you've been assigned to brief for today's class and you are tasked with defending the court's reasoning. Ready? Go . . .