| People v Cain |
| 2012 NY Slip Op 05183 [96 AD3d 1072] |
| June 27, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JumaCain, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M.Lieberman of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Firetog, J.), dated May 31, 2011, which, after a hearing, denied his motion pursuant to CPL440.10 to vacate a judgment of conviction of the same court (Collini, J.), rendered June 22, 2003,convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant was convicted of murder in the second degree in connection with the shootingof Jason Louther in Brooklyn on November 1, 2002. On appeal, the judgment of conviction wasaffirmed (see People v Cain, 16AD3d 431 [2005]). In 2009 the defendant moved pursuant to CPL 440.10 to vacate thejudgment of conviction. In his moving papers, the defendant submitted transcripts from federalproceedings in which Filemon Timana confessed to shooting Jason Louther (see CPL440.30 [1]). In those proceedings, which occurred in June 2007 and January 2008, Timanatestified that he shot and killed Louther because Louther previously had struck the defendant onthe head with a wrench and taken a gun from him. Upon seeing Louther on the street onNovember 1, 2002, Timana went to the defendant and told him that he had seen Louther. Thedefendant gave Timana a gun and told him to "handle it." Timana testified that at that point hewas taking orders from the defendant. Timana confronted Louther and eventually shot him.Immediately thereafter, Timana returned to the defendant, told him that he had shot Louther, andhanded the gun back to him.
The Supreme Court conducted a hearing on the defendant's motion. Timana, who already hadbeen sentenced in federal court, testified at the hearing. In contrast to his federal testimony,Timana now claimed at the subject hearing that when he obtained the gun from the defendant, hehad not intended to kill Louther, and his purpose was only to intimidate and humiliate him and torecover the gun Louther had taken from the defendant. In this version, it was not until Loutherand Timana began arguing that Timana decided to shoot and kill Louther. When confronted oncross-examination with the statements he had made in federal court, Timana did not rememberadmitting in his plea of guilty that he had made an agreement with the defendant to kill Louther,and further testified that he did not know what the word "agreed" meant. Timana acknowledgedhis [*2]federal testimony that he had killed Louther because ofwhat Louther had done to the defendant, but maintained that the truth was that Timana did notform the intent to kill Louther until their confrontation.
The Supreme Court denied the defendant's motion, finding that the proffered evidence wasnot "newly discovered" within the meaning of CPL 440.10 (1) (g). The defendant appeals and weaffirm.
CPL 440.10 (1) (g) provides that a court may vacate a defendant's judgment of convictionupon the ground that: "New evidence has been discovered since the entry of a judgment basedupon a verdict of guilty after trial, which could not have been produced by the defendant at thetrial even with due diligence on his part and which is of such character as to create a probabilitythat had such evidence been received at the trial the verdict would have been more favorable tothe defendant; provided that a motion based upon such ground must be made with due diligenceafter the discovery of such alleged new evidence."
The defendant has the burden of proving by a preponderance of the evidence every factessential to support the motion (see CPL 440.30 [6]). The power to vacate a judgment ofconviction on the ground of newly discovered evidence rests within the discretion of the hearingcourt. The court must make its final decision based upon the likely cumulative effect of the newevidence had it been presented at trial (see People v Bellamy, 84 AD3d 1260, 1261 [2011]; People v Tankleff, 49 AD3d 160,178-181 [2007]).
The Supreme Court properly determined that the defendant failed to meet his burden ofshowing that the proffered evidence has been discovered since the entry of judgment on hisconviction. The defendant makes no claim that Timana had any potential testimony not known tohim at the time of the trial. Moreover, even if Timana's testimony at the hearing pursuant to CPL440.30 is credited, the factual allegations therein were known to the defendant at the time of histrial. Therefore, the proffered testimony does not satisfy the requirement of CPL 440.10 (1) (g)that it be new evidence "discovered since the entry of a judgment based upon a verdict of guiltyafter trial" (see People v Huggins, 144 Misc 2d 49, 52 [1989]; cf. People vFeliciano, 240 AD2d 256 [1997]; People v Pellot, 173 AD2d 419 [1991]; Peoplev Moore, 147 AD2d 924 [1989]; People v Craft, 123 AD2d 481 [1986]; People vRivera, 118 AD2d 877 [1986]).
In any event, considering the cumulative effect of all of Timana's testimony and statements,there is no probability that if such evidence had been received at the trial the verdict would havebeen more favorable to the defendant (see CPL 440.10 [1] [g]). "[W]hether one is theactual perpetrator of the offense or an accomplice is, with respect to criminal liability for theoffense, irrelevant" (People v Rivera, 84 NY2d 766, 771 [1995] [internal quotation marksomitted]). Mastro, A.P.J., Angiolillo, Austin and Sgroi, JJ., concur.