| People v Smith |
| 2013 NY Slip Op 05134 [108 AD3d 1075] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vChristopher Smith, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Onondaga County Court (AnthonyF. Aloi, J.), dated June 23, 2011. The order denied the motion of defendant to vacate ajudgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of attempted murderin the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the firstdegree (§ 120.10 [1]) and criminal possession of a weapon in the second degree(§ 265.03 [3]). We affirmed defendant's conviction on appeal (People v Smith, 90 AD3d1565 [2011], lv denied 18 NY3d 998 [2012]). While his direct appeal waspending, defendant moved pursuant to CPL 440.10 (1) (g) to vacate the judgment ofconviction on the ground of newly discovered evidence, to wit, an affidavit from hiscodefendant stating that defendant was not involved in the crimes. County Court deniedthe motion without a hearing, ruling that the affidavit did not constitute newly discoveredevidence. We affirm.
It is well settled that on a motion to vacate a judgment of conviction based on newlydiscovered evidence, the movant must establish, inter alia, that "there is newly discoveredevidence: (1) which will probably change the result if a new trial is granted; (2) whichwas discovered since the trial; (3) which could not have been discovered prior to trial; (4)which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeachor contradict the record evidence" (People v Madison, 106 AD3d 1490, 1492 [2013] [internalquotation marks omitted]; see People v Salemi, 309 NY 208, 215-216 [1955],cert denied 350 US 950 [1956]). Here, it is not probable that defendant wouldreceive a more favorable verdict at a retrial if the codefendant testified in accordancewith his affidavit (see People v Jackson, 238 AD2d 877, 878 [1997], lvdenied 90 NY2d 859 [1997]). It is undisputed that defendant was driving thecodefendant when the codefendant shot the victim, and no one else was in the car.Moreover, it is unclear whether a jury would credit, upon a retrial, the codefendant'sexculpatory testimony in light of the fact that the codefendant already pleaded guilty toassault in the first degree, was the individual who shot and injured the victim, did notprovide the exculpatory statement until years after the trial, and provided that statementwhile serving his sentence at the same correctional facility as defendant.[*2]
Additionally, defendant failed to meet his burdenof establishing that such exculpatory evidence could not have been discovered beforetrial by the exercise of due diligence (see Salemi, 309 NY at 216; see alsoPeople v Grotto, 241 AD2d 785, 786-787 [1997], lv denied 90 NY2d 940[1997]). According to the codefendant, he refused to testify on defendant's behalfbecause he was angry with defendant for getting him arrested, and he was afraid ofjeopardizing his plea deal and thus wanted to assert his Fifth Amendment rights.Defendant, however, never submitted an affidavit from his trial counsel affirming thatcounsel attempted to speak with the codefendant and that the codefendant refused tocooperate, nor did defendant explain his failure to do so (see generally People v Ozuna,7 NY3d 913, 915 [2006]). Moreover, although "the affidavit of a codefendant whohad previously exercised his [Fifth] Amendment right not to testify may constitute newlydiscovered evidence" (People v Beach, 186 AD2d 935, 936 [1992]), here thecodefendant never actually exercised his Fifth Amendment rights. In any event, thecodefendant's assertion in his affidavit that he would have exercised those rights due tohis concerns regarding his plea deal is of no moment inasmuch as he had already pleadedguilty and received his sentence weeks before defendant was tried.
Finally, "[i]n order to constitute newly discovered evidence, such evidence must notmerely impeach or contradict the former evidence . . . The rule recognizesthat recantation evidence is inherently unreliable . . . and insufficient aloneto warrant vacating a judgment of conviction" (People v Thibodeau, 267 AD2d952, 953 [1999], lv denied 95 NY2d 805 [2000]). During his plea colloquy, thecodefendant stated that he acted in concert with another man, and it is undisputed thatdefendant was the only other man present during the crime. The codefendant did notexplain in his affidavit why he was recanting what he initially stated during his pleacolloquy, i.e., that defendant was involved in the crime. In light of the above, the courtproperly determined that the codefendant's affidavit does not constitute newly discoveredevidence and therefore properly denied the CPL 440.10 motion without a hearing(see Jackson, 238 AD2d at 878-879). Present—Centra, J.P., Fahey, Carniand Sconiers, JJ.