MORLES V. PORTUONDO 154 F. Supp. 2d 706 (S.D.N.Y. 2001) CASE BRIEF

MORLES V. PORTUONDO

154 F. Supp. 2d 706 (S.D.N.Y. 2001)

NATURE OF THE CASE: Morales (P) appealed the denial of a writ of habeas corpus over his second-degree murder conviction.

FACTS: Rivera was beaten and stabbed to death by a group of teenagers. Members of the group chased and caught him. Someone struck him in the head with a stick or bat, splitting his head open. As he lay on the ground, others stabbed him and hit him again. No one was arrested at the scene of the murder. A few days later, P, who was then only 18 years old, appeared at a police station for questioning. He did so voluntarily and denied any involvement in the murder. He was placed in a lineup. Rodriguez, who had watched as her common-law husband was murdered, identified P as one of the assailants. P was thereafter indicted, together with Montalvo and Peter Ramirez, for Rivera's murder. P rejected a plea bargain that would have required a prison term of only one to three years. Ramirez committed suicide. The jury returned a verdict finding both P and Montalvo guilty of murder in the second degree. Before they were sentenced, Jesus Fornes, asked to speak to Father Joseph Towle. Fornes told him that he was upset because two members of his group had been convicted of a murder, that the two were not present at the scene and were not involved, and that he and two others had actually committed the murder. Fornes said that one of the other two individuals was Peter Ramirez. As a consequence of his conversation with Father Towle, Fornes went to see Montalvo's mother and told her that he, Peter Ramirez, and Carlos Ocasio had committed the 'killing' and that her son and P were not involved. She immediately called her son's lawyer as well as Elizabeth Colon, P's mother, to tell them about her conversation with Fornes. Fornes appeared in court at the sentencing, unexpectedly, accompanied by his parents. P-Fowler overheard Fornes say to Servino, 'I did the crime, I will do the time.' As Servino testified, Fornes told him that: it wasn't right that Jose and Ruben were in [jail], they didn't do anything, I should be there. Then he kept on repeating, I did the crime, I will do the time. They did nothing. They weren't even there. They weren't even there. Servino believed that Fornes had come forward because of 'a genuine sense or feeling of guilt that P and Montalvo were in there and that they shouldn't be there.' Servino then obtained an adjournment of the sentencing, advising the court that he would be moving to set aside the verdict based upon newly discovered evidence -- Fornes's statements. Servino also appeared as attorney of record for P. Fornes met with Stanley Cohen, Esq. Cohen explained the attorney-client privilege to him, and Fornes told Cohen that he and two other individuals had killed someone and that the two individuals who had been convicted of the murder had not been involved. Fornes also told Cohen that he had been to court earlier that day and had spoken to a lawyer for one of the defendants. Cohen agreed to represent Fornes. P moved to set aside the verdict and a hearing was held on the motion in March 1989. Fornes followed Cohen's advice and invoked his Fifth Amendment privilege, refusing to answer questions. The trial court denied the motion, refusing to set aside the verdict on the grounds that Fornes's hearsay statements were uncorroborated and untrustworthy and therefore would have been inadmissible at trial. The trial court also concluded that even if Fornes's statements had been admitted at trial, they 'would not in all probability have resulted in a verdict more favorable to' P and Montalvo. In 1997, Fornes was killed, in an incident unrelated to this case. In May 2000, Father Towle executed an affidavit in which he described the statements that Fornes had made to him some 11 or 12 years earlier. On March 25, 1997, proceeding pro se, P filed his petition for a writ of habeas corpus. The petition was dismissed as time barred. The Second Circuit vacated the judgment and remanded the matter for further proceedings. P obtained counsel, who briefed only one of the four claims raised in the petition -- the claim that Ramirez's statements should have been admitted into evidence at trial. The court did not address the issue of the admissibility of Fornes's statements because P's attorney did not raise the issue. P appealed, pro se. The Second Circuit granted a certificate of appealability, but only on the issue of the admissibility of Fornes's statements. On April 17, 2001, after this case was remanded by the Second Circuit, P, acting pro se, filed a CPL 440.10 motion in the Supreme Court to vacate the conviction on the grounds that Fornes's confession to Father Towle constituted newly-discovered evidence that would have exonerated him had it been admitted at trial. federal court, P called five witnesses: Father Towle, Servino, Cohen, Maria Montalvo, and Maria Morales-Fowler.

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