| People v Harris |
| 2008 NY Slip Op 07807 [55 AD3d 958] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Calvin L. Harris,Respondent. |
—[*1] William E. Easton, Rochester, for respondent.
Malone Jr., J. Appeals (1) from an order of the County Court of Tioga County (Smith, J.), enteredOctober 26, 2007, which partially denied the People's motion to reopen a previous hearing, and (2)from an order of said court, entered November 2, 2007, which granted defendant's motion pursuant toCPL 330.30 to set aside the verdict following his conviction of the crime of murder in the seconddegree.
Following the September 11, 2001 disappearance of Michelle Harris, defendant's estranged wife,defendant was charged with murder in the second degree. A jury found defendant guilty of the chargeafter a lengthy trial in May 2007. Within hours after the verdict was rendered, Kevin Tubbs contacteddefense counsel and indicated that he possessed information that he believed was relevant to thevictim's disappearance. Specifically, Tubbs claimed that he had seen the victim and another maleindividual at the end of the Harris driveway at approximately 5:30 a.m. on September 12, 2001, whichwas several hours after the People had theorized at trial that defendant had murdered the victim anddisposed of her body. Based on Tubbs's claim, and the corroborating testimony of Tubbs's parents,defendant moved prior to sentencing to set aside the verdict pursuant to CPL 330.30, alleging that theinformation constituted newly discovered evidence. After a hearing was held on the motion, the Peoplemoved to reopen the evidence based on, among other things, its discovery of information to impeachthe hearing testimony of Tubbs and his parents. By order entered October 26, 2007, County Courtpartially granted the motion, allowing additional evidence as to certain limited [*2]issues. Thereafter, by order entered November 2, 2007, County Courtgranted defendant's motion to set aside the verdict and ordered a new trial. The People now appealfrom both orders.[FN1]
We do not find that County Court abused its discretion in determining that the evidence offered bydefendant was newly discovered and of such a character as to create a probability of a more favorableoutcome had it been presented at trial (see CPL 330.30 [3]; People v Salemi, 309NY 208, 215-216 [1955], cert denied 350 US 950 [1956]; People v Lackey, 48 AD3d 982, 983[2008], lv denied 10 NY3d 936 [2008]; see also People v Santos, 306 AD2d 197,198 [2003]). It was the People's theory at trial that defendant had at least eight hours to kill the victim,clean up the crime scene and dispose of her body before he called the babysitter, who arrived a littleafter 7:00 a.m. Tubbs's testimony, had it been presented at trial and credited by the jury, would haveserved to undermine the People's theory inasmuch as it would have established that a woman matchingthe victim's description was observed in the company of an unidentified male several hours after thetime that the People argued that defendant had killed her, leaving defendant less than two hours tocommit the crime and dispose of the body.[FN2] As such, Tubbs's testimony is material evidence that is not merely cumulative, nor does it serve tosimply impeach other trial evidence. Moreover, it is uncontroverted in the record that Tubbs did notcome forward with this information until after the verdict was rendered and the People conceded at thehearing that it was not discoverable by defendant prior to trial, even with the exercise of due diligence(see CPL 330.30 [3]). Although the People contend that Tubbs's testimony was so patentlyincredible that there is no chance that it would have resulted in a more favorable verdict, such credibilitydetermination, at the hearing, is within the province of County Court, which had the unique opportunityto not only observe Tubbs's demeanor at the hearing, but it also heard and saw the totality of the purelycircumstantial evidence presented by the People against defendant earlier at trial (see People vPenoyer, 135 AD2d 42, 44 [1988], affd 72 NY2d 936 [1988]; People vScarincio, 109 AD2d 928, 929 [1985]).
Nor do we find error in County Court's exercise of discretion to limit the scope of the reopenedhearing. The People were afforded a full and fair opportunity to present evidence at the original hearing(see People v Havelka, 45 NY2d 636, 643-644 [1978]; People v Somerville, 283AD2d 596, 596 [2001], lv denied 96 NY2d 942 [2001]) and, as such, County Court properlylimited the People's presentation of evidence at the rehearing to purported statements made by Tubbsand his father after the hearing, which arguably cast doubt on the veracity of their testimony. CountyCourt properly denied the People's motion as to the remainder of the People's proffered evidenceinasmuch as it was only of an impeaching nature that could have been presented at the original hearing.
Spain, J.P., Lahtinen, Kane and Stein, JJ., concur. Ordered that the appeal from the order enteredOctober 26, 2007 is dismissed. Ordered that the order entered November 2, 2007 is affirmed.
Footnote 1: The People's appeal from theOctober 2007 order must be dismissed as such appeal is not authorized by CPL 450.20. However, thepropriety of County Court's October 2007 order is nevertheless reviewable by this Court upon thePeople's appeal from the November 2007 order granting defendant's motion to set aside the verdict(see CPL 470.15 [1]).
Footnote 2: The body of defendant's wife hasnot been found.