Download On Vacating the Conviction

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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The People of the State of New York
v
People’s Affirmation in
Support of
Defendant’s CPL 440.10
Motion to Vacate the
Conviction
Jeffrey Deskovic
Indictment # 90-0192
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STATE OF NEW YORK
)
: ss.:
COUNTY OF WESTCHESTER
)
Janet DiFiore, an attorney duly admitted to practice before the Courts of
the State of New York, affirms the following under the penalties of perjury: that
she is the District Attorney of Westchester County and submits this Affirmation in
support of defendant Jeffrey Deskovic’s motion to vacate the instant conviction
pursuant to CPL 440.10 (1) (g) on the basis of newly discovered evidence. This
affirmation is made upon personal knowledge and information and belief, the
sources of which are the file maintained in this matter by the Office of the District
Attorney of Westchester County, and my conversation with First Deputy District
Attorney Maryanne Luciano.
The facts relevant to the determination of the defendant’s motion are as
follows:
On and between November 15-17, 1989, 16-year-old Angela Correa was
sexually assaulted and murdered in Hillcrest Park in Peekskill, New York.
During the subsequent investigation conducted by members of the Peekskill
Police Department, Jeffrey Deskovic made an oral confession to the crimes
committed against Ms. Correa. A Restriction Fragment Length Polymorphism
(RFLP) analysis conducted by the FBI laboratory of a vaginal swab secured from
the deceased victim developed a DNA profile which excluded Deskovic as the
donor. Because the present DNA identification system had not been established
at the time the DNA profile was not place in Combined DNA Index System. Until
September 2006, the identity of the source of the DNA has never been
determined. During defendant’s jury trial in 1990, this exculpatory DNA evidence
was fully explored before the trier of fact.
In December of 1990, at the conclusion of the evidence, Jeffrey Deskovic
was convicted upon a jury verdict of the crimes of murder in the second degree
(two counts), rape in the first degree and criminal possession of a weapon in the
fourth degree. On January 18, 1991, he was sentenced to fifteen years to life for
the crime of murder, eight and one third to twenty-five years for the crime of rape
and one year for the crime of criminal possession of the weapon. The sentences
were ordered to run concurrently. The defendant’s judgment of conviction was
unanimously affirmed on appeal by the Appellate Division, Second Department
(People v Deskovic 201 AD2d 579). Leave to appeal to the Court of Appeals was
denied (83 NY2d 1003).
In June 2006 I was contacted by Barry Scheck, Esq. of the Innocence
Project, who requested, on behalf of his client Jeffrey Deskovic, my consent to a
CPL 440.30 (1-a) motion for a Short Tandem Repeat (STR) analysis of the DNA
recovered from the victim and then a CODIS upload of the STR DNA profile
obtained in the case of People v Jeffrey Deskovic, Indictment # 90-0192. I
agreed that a CODIS upload was most appropriate under the circumstances of
the case as the source of the DNA profile was never identified.
On June 28, 2006, Nina Morrison, Esq. of the Innocence Project submitted
a proposed motion to my office seeking post-conviction DNA testing pursuant to
CPL 440.30 (1-a) (copy attached), However, as evidence establishing that the
defendant had been excluded as the donor of the DNA obtained from the vaginal
swabs had been admitted at the 1990 trial, the CPL 440.30 (1-a) motion did not
provide a legal mechanism to allow for the retesting of the crime scene DNA
using STR and entering a search in CODIS.
More particularly, in 1994, CPL 440.30 (1-a) was enacted to establish a
procedure whereby defendants convicted prior to 1996 could request postconviction DNA testing of specified evidence collected in connection with their
criminal case. Upon this motion, the court must determine whether any evidence
containing DNA was secured in connection with the trial and, further the court
must grant the defendant's application if it determines that had "a DNA test been
conducted on (the) evidence and (had) the results (of that evidence been)
admitted at trial, there exists a reasonable probability that the verdict would
have been more favorable to the defendant." (CPL 440.30(1-a) (a), People
Pitts, 4 NY2d 303). Since at the trial a DNA profile excluding the defendant was
admitted into evidence before the triers of fact, CPL 440.30 (1-a) motion did not
lie on the known facts of the case.
Thereafter, members of my staff met with members of the Westchester
County Department of Laboratories to discuss a course of action in light of the
troubling limitations presented under the Criminal Procedure Law in addressing
the specific circumstances of this case. It was unanimously agreed that a new
analysis of all of the evidence secured at the scene of the crime by the
Westchester County Forensic Laboratory was the only course of action
consistent with maintaining the fundamental tenets of justice and the integrity of
the criminal justice system.
Since 1999-2000, the Westchester County Forensic Lab routinely
performs STR DNA analysis on evidence collected in homicide investigations. All
of us agreed that this case should not be treated differently, notwithstanding the
duly affirmed judgment of conviction.
By letter dated August 8, 2006 I officially requested Frederick C.
Drummond, Chief of the Forensic Science Services, conduct an expeditious STR
analysis of the extant forensic evidence in this matter pursuant to the
Laboratory’s established protocols for a cold case investigation. Mr. Drummond,
who attended the meetings with members of my staff and who was in full accord
with the practical resolution of the obstacles presented to a CODIS analysis in
this case, immediately agreed. With the cooperation of the Peekskill Police
Department all available evidence was submitted to the lab for retesting.
On September 15, 2006, my Office received a written confirmation dated
September 13, 2006, from Linda E. Duffy, CODIS Administrator of the Forensic
Science Laboratory, that a CODIS match was made with the DNA evidence from
the Deskovic case (copy attached). The matched DNA was identified as that of a
man who is presently a convicted inmate being held in the New State
Department of Corrections. A criminal history of the inmate revealed that upon
entry of a guilty plea for a murder committed in the Westchester County he is
serving a life sentence and was prosecuted by the Westchester County District
Attorney's Office. At this time the identity of the inmate is being withheld as he is
now the prime suspect in this investigation into the rape and murder of Angela
Correa.
Criminal Investigators from my office with the full cooperation of the
Peekskill Police Department, reviewed the file maintained in this matter,
interviewed members of the victim’s family and visited the crime scene. On
September 18, 2006 my investigators were dispatched to the state prison facility
at which the inmate is being housed. During that visit the inmate confessed to
the rape and murder of Angela Correa.
On September 18, 2006 I contacted Barry Scheck and informed him of the
newly discovered evidence and my intention to consent to a CPL 440.10 motion
to vacate Mr. Deskovic’s conviction. There can be doubt upon all of this newly
discovered evidence obtained within the last week, the defendant's motion to
vacate the conviction must be granted as there is more than reasonable
probability that had the jury heard this evidence, the conviction would not have
been obtained. The People unequivocally consent to this motion.
WHEREFORE, for the reasons set forth herein, it is respectfully requested
that the defendant's motion to vacate his conviction be granted and he be
released on his own recognizance pending further proceedings on this matter.
AFFIRMED TO BE TRUE
__________________________
Honorable Janet DiFiore
Westchester County District Attorney
Dated: White Plains, New York
September 19, 2006
To:
Barry C. Scheck Esq.
Nina Morrison, Esq.
Attorneys for defendant
Innocence Project
100 Fifth Avenue
New York, NY 10011
.