| People v Singh |
| 2013 NY Slip Op 07508 [111 AD3d 767] |
| November 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tejpal Singh, Appellant. |
—[*1] Stephen G. Murphy, Brooklyn, N.Y., for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Aloise,J.), dated May 31, 2012, which, after a hearing, granted the defendant's motion pursuantto CPL 440.10 to vacate a judgment of the same court (Aloise, J.), rendered December14, 2004, convicting him of murder in the second degree, attempted murder in the seconddegree, assault in the first degree, criminal possession of a weapon in the second degree,and reckless endangerment in the first degree, upon a jury verdict, and imposingsentence, and directed a new trial.
Ordered that the order is affirmed.
The defendant was charged with, inter alia, murder in the second degree following a1996 shooting in Queens County. At a trial in 2004, the People presented, among otherthings, testimony from two eyewitnesses who identified the defendant as the shooter. Thedefendant was convicted and sentenced and, in 2008, the judgment of conviction wasaffirmed by this Court (seePeople v Singh, 47 AD3d 733 [2008]).
In 2011, the defendant moved to vacate the judgment of conviction based on, amongother things, newly discovered evidence. The Supreme Court directed that an evidentiaryhearing be held with respect to, inter alia, the defendant's claims that (1) one of theeyewitnesses who identified him as the shooter later admitted that he had lied and hadbeen pressured to falsely implicate the defendant because of a longstanding feud betweentwo rival factions of the Sikh community in Queens, (2) the other eyewitness whoidentified him as the shooter admitted that he had not seen the shooter and that he hadoffered to change his trial testimony in exchange for money, and (3) secret meetings hadbeen held prior to the trial to raise money to pay the two eyewitnesses to testify falsely.At the hearing, the defendant presented witnesses who testified to this effect. Althoughthe two eyewitnesses denied many of the allegations and maintained that their trialtestimony was accurate, the Supreme Court, after reviewing the evidence, stated that ithad "serious doubts and obvious concerns" with respect to the eyewitnesses' veracity andreliability. The Supreme Court granted the defendant's motion to vacate the judgment,finding that the newly discovered evidence, among other things, called into question themotivation behind the eyewitnesses' original testimony and had the potential to severelyimpact the jury's determination.
CPL 440.10 (1) (g) provides that a court may vacate a judgment of conviction uponthe ground that: "New evidence has been discovered since the entry of a judgment basedupon a [*2]verdict of guilty after trial, which could nothave been produced by the defendant at the trial even with due diligence on his part andwhich is of such character as to create a probability that had such evidence been receivedat the trial the verdict would have been more favorable to the defendant; provided that amotion based upon such ground must be made with due diligence after the discovery ofsuch alleged new evidence." The defendant has the burden of proving by apreponderance of the evidence every fact essential to support the motion (seeCPL 440.30 [6]; People vBellamy, 84 AD3d 1260, 1261 [2011]; People v Tankleff, 49 AD3d 160, 179-180 [2007]). Thepower to vacate a judgment of conviction on the ground of newly discovered evidencerests within the discretion of the hearing court (see People v Bellamy, 84 AD3dat 1261; People v Malik, 81AD3d 981, 981 [2011]). The court must make its final decision based upon thelikely cumulative effect of the new evidence had it been presented at trial (see People v Cain, 96 AD3d1072, 1073 [2012]; People v Bellamy, 84 AD3d at 1261).
Contrary to the People's contention, the Supreme Court properly determined that thedefendant satisfied his burden of proof and that the likely cumulative effect of the newlydiscovered evidence, including the evidence of the broad conspiracy to pay theeyewitnesses to implicate the defendant as the shooter, would have been a verdict morefavorable to the defendant (see CPL 440.10 [1] [g]; People v Bellamy, 84AD3d at 1262). The case against the defendant rested upon the testimony of the twoeyewitnesses, and the newly discovered evidence, which were material and notcumulative, called into question the eyewitnesses' motivation and veracity, and couldhave raised reasonable doubt in the jurors' minds (see People v Bellamy, 84AD3d at 1262; People v Tankleff, 49 AD3d at 182).
The People's remaining contentions are without merit. Rivera, J.P., Leventhal,Chambers and Lott, JJ., concur.