SUPREME COURT OF THE STATE OF NEW YORK



SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

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The People of the State of New York People’s Affirmation in

Support of

v 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 post-conviction 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

.

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