| People v Bryant |
| 2014 NY Slip Op 03419 [117 AD3d 1586] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMalcolm Bryant, Appellant. |
Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Monroe County(Daniel J. Doyle, J.), dated June 26, 2012. The order denied the motion of defendant tovacate a judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is reversed on the law, themotion is granted, the judgment is vacated and a new trial is granted in accordance withthe following memorandum: On appeal from an order denying his CPL 440.10 motionfollowing a hearing, defendant contends that Supreme Court erred in denying thatmotion. We agree. Defendant was convicted following a jury trial of assault in the firstdegree (Penal Law § 120.10 [1]) and two counts of criminal possession of aweapon in the second degree (§ 265.03 [1] [b]; [3]) related to the shootingof the victim. Defendant thereafter moved to vacate the judgment on the grounds of, interalia, newly discovered evidence, ineffective assistance of counsel and actual innocence,seeking either a new trial or dismissal of the indictment. We conclude that defendant isentitled to a new trial on the ground of newly discovered evidence, and we thereforereverse the order and grant the motion to the extent that it is based on newly discoveredevidence.
At trial, the only witness to identify defendant as the shooter was the victim.Immediately after the shooting, however, the victim informed the police officersinvestigating the shooting that, because he wore glasses, he was unable to identify theshooter. Defendant, who lived in the area of the shooting, presented a neighbor as analibi witness. That neighbor testified that he had seen defendant inside a bar immediatelybefore the neighbor left the bar. Upon his arrival at his residence, the neighbor observedthe victim and drove him to the hospital. Because the neighbor was admittedlyintoxicated on the night of the shooting, there was some question whether he wasmistaken about the timing of events. Following 13 hours of deliberation and anAllen charge, the jury convicted defendant.
In support of his CPL 440.10 motion, defendant submitted the affidavit of a neighborwho observed the shooting (hereafter, first witness). She averred that she observed aperson, whom she identified, shoot the victim, and that person was not defendant. Shefurther averred that defendant, whom she knew from the neighborhood, was not presentat the scene of the crime. [*2]Defendant also submittedan affidavit from another neighbor who arrived home shortly before the shooting andobserved several men on the street arguing (hereafter, second witness). The secondwitness also knew defendant from the neighborhood, and she averred that he was notamong the men arguing on the street. Although the second witness did not actuallyobserve the shooting, she went to her window immediately after hearing the gunshotsand observed two men, neither of whom was defendant, leaving the scene. The firstwitness identified the shooter by a street name, and the second witness identified thatsame person as being one of the men arguing with the victim and then leaving the sceneimmediately after the shooting. Both the first witness and second witness testified at thehearing on the motion, and their testimony reiterated the information contained in theirsworn affidavits.
It is well settled that, in order to establish entitlement to a new trial on the ground ofnewly discovered evidence, "a defendant must prove 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]; see People v Smith, 108 AD3d1075, 1076 [2013], lv denied 21 NY3d 1077 [2013]; see generallyPeople v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950[1956]).
We conclude that defendant met his burden of establishing all six factors by apreponderance of the evidence (see CPL 440.30 [6]; People v Tankleff, 49 AD3d160, 179-180 [2007]). Although the second witness gave the police a statement onthe night of the incident, there is no dispute that the information obtained from the firstwitness was in fact discovered after trial, that it was material to the case and that it wasnot cumulative of other evidence (see e.g. People v Singh, 111 AD3d 767, 768-769 [2013];People v Bellamy, 84 AD3d1260, 1261-1262 [2011], lv denied 17 NY3d 813 [2011]). Contrary to thePeople's contention, the information from the first witness was not merely impeachingevidence; it addressed directly the issue of defendant's guilt or innocence (see e.g.Madison, 106 AD3d at 1493; People v Lackey, 48 AD3d 982, 984 [2008], lvdenied 10 NY3d 936 [2008]; cf. People v Welch, 281 AD2d 906, 906[2001], lv denied 97 NY2d 734 [2002]). We further conclude that, when thetestimony from the first witness is considered in light of the hearing testimony from thesecond witness and all of the evidence admitted at trial, "there is a reasonable probabilitythat had such evidence been received at trial, the verdict would have been more favorableto the defendant" (People vMalik, 81 AD3d 981, 982 [2011]; see Tankleff, 49 AD3d at 182). Thejury deliberated for over 13 hours and, at one point, was deadlocked. The hearingtestimony of the two witnesses corroborates each other as well as the trial testimony ofdefendant's alibi witness, i.e., that defendant was not present at the scene immediatelybefore or immediately after the shooting. Had evidence from the first witness and thesecond witness been introduced at trial, the prosecution may not have been able todiscredit the trial testimony of the alibi witness as being mistaken relative to the timing ofevents.
In our view, the one factor that warrants a more extended analysis is whetherdefendant established that the information obtained from the two witnesses could nothave been discovered with due diligence before trial. " '[T]he due diligencerequirement is measured against the defendant's available resources and the practicalitiesof the particular situation' " (Tankleff, 49 AD3d at 180). Here, the policereports submitted by defendant in support of his motion established that police officerscanvassed the neighborhood shortly after the shooting. They went to 14 nearbyresidences and were not able to find anyone with any relevant information. While thesecond witness gave a statement to the police on the night of the incident, none of thepolice reports mentioned the name of the first witness. Inasmuch as "[t]he primaryburden of investigating a crime is on the People through their agency, the policedepartment" (People v Hildenbrandt, 125 AD2d 819, 821 [1986], lvdenied 69 NY2d 881 [1987]), we conclude that it was not [*3]unreasonable for defense counsel, in light of "the limitedresources generally available to the defense" (id.), to conclude that a furthercanvass of the neighborhood would not yield any new and relevant information. Here, asin Hildenbrandt, "[t]he existence of the [first] witness was not uncovered by thepolice[,] and there is nothing in the record to indicate that the failure to discover thewitness was unreasonable. Thus, it can hardly be said that defendant should be chargedwith a lack of due diligence in finding the witness" (id. at 821-822). Although theinformation obtained from the second witness was available before trial and thus doesnot constitute newly discovered evidence, the information obtained from the first witnesswas not. That evidence thus meets all of the requisite factors.
While we agree with our dissenting colleague that there are issues concerning thecredibility of the first witness and that issues of credibility are best determined by thehearing court (see People vBritton, 49 AD3d 893, 894 [2008], lv denied 10 NY3d 956 [2008]), weconclude that the testimony of the first witness, when combined with the informationobtained from the second witness and the trial testimony of defendant's alibi witness,would probably change the result if a new trial were granted. As noted above, theidentification evidence against defendant was weak, and even the victim initially told thepolice that he was unable to identify his attacker. Moreover, during the lengthydeliberations, the jury required an Allen charge, which is given only when a juryis deadlocked (see People v Abston, 229 AD2d 970, 971 [1996], lvdenied 88 NY2d 1066 [1996]; see generally Allen v United States, 164 US492, 501-502 [1896]). Under the unique circumstances of this case, and given the factthat the first witness, although seemingly reluctant, in fact agreed to testify against theperson she identified as the shooter, we conclude that the court erred in denyingdefendant's motion.
We reject defendant's contention, however, that he is entitled to dismissal of theindictment on the ground of actual innocence, and we instead conclude that he is entitledto a new trial. Even assuming, arguendo, that a claim of actual innocence is a viableground for a CPL 440.10 motion, we conclude that defendant failed to establish by clearand convincing evidence that he is actually innocent of the crimes (see generally People vHamilton, 115 AD3d 12, 26 [2014]).
In light of our determination, we see no need to address defendant's remainingcontentions.
All concur except Lindley, J., who dissents and votes to affirm in the followingmemorandum.
Lindley, J. (dissenting). I respectfully dissent. Although I agree with the majority thatSupreme Court properly rejected defendant's claims of actual innocence and ineffectiveassistance of counsel, I do not agree that defendant is entitled to a new trial based onnewly discovered evidence (see CPL 440.10 [1] [g]). According to defendant, thenewly discovered evidence is information that he obtained from a witness who submittedan affidavit in which she averred that she saw someone other than defendant commit theshooting (hereafter, first witness). Based on that affidavit, among other evidence, thecourt granted defendant a hearing, at which the first witness testified consistently withher affidavit.
If the first witness's testimony is accepted as true, then I would agree that defendantwould be entitled to a new trial, inasmuch as defendant established that he could not havediscovered that witness with due diligence before trial, and the proffered testimony, ifbelieved by the jury, would likely have changed the outcome at the trial (see generallyPeople v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950[1956]; People v Madison,106 AD3d 1490, 1492 [2013]). The hearing court specifically found, however, thatthe first witness's testimony was not credible. In the context of a CPL 440.10 motion, thecredibility determinations of the hearing court, "with its particular advantages of havingseen and heard the witnesses," are entitled to "great deference on [*4]appeal" (People v Britton, 49 AD3d 893, 894 [2008], lv denied10 NY3d 956 [2008]; seePeople v Jacobs, 65 AD3d 594, 595 [2009], lv denied 13 NY3d 836[2009]), and they should not be disturbed "unless clearly erroneous" (People vJamison, 188 AD2d 551, 551 [1992], lv denied 81 NY2d 841 [1993]; seePeople v Prochilo, 41 NY2d 759, 761 [1977]). Based on my review of the record, Isee no basis for us to disturb the hearing court's credibility determinations (see People v Betsch, 4 AD3d818, 819 [2004], lv denied 2 NY3d 796 [2004], lv denied uponreconsideration 3 NY3d 657 [2004]; People v Wallace, 270 AD2d 823, 824[2000], lv denied 95 NY2d 806 [2000]).
In my view, the court had ample reasons for not believing the first witness, who,despite her purported knowledge of the identity of the shooter, did not come forwarduntil more than a year after defendant had been convicted. I note that, when initiallyasked at the hearing whether she knows another female neighbor who observed the sceneafter the shooting and who also submitted an affidavit in support of defendant's motion(hereafter, second witness), the first witness answered, "No, I do not." Upon furtherquestioning, the first witness acknowledged that she knows the second witness but onlyby her street name. The second witness testified, however, that she spoke to the firstwitness "[a]lmost every day" when they lived on the same street and, since moving toanother apartment, she spoke to the first witness on the telephone "once every otherweek." In fact, shortly before the hearing, the second witness telephoned the first witnessand, during that conversation, the second witness asked the first witness about herchildren and invited them to a birthday party. It thus strains credulity to believe that thefirst witness does not know the name of the second witness. In addition, the first witnessrefused to discuss the matter with an investigator from the District Attorney's office priorto the hearing, and she appeared reluctant to testify before the grand jury against theperson she claimed to have seen commit the shooting. She did not even want to disclosewho had brought her to the courthouse to testify at the hearing.
Where, as here, a defendant seeks a new trial based on newly discovered evidence inthe form of testimony from an eyewitness, the defendant is not entitled to relief unless thehearing court believes that testimony (see People v Watson, 152 AD2d 954, 955[1989], lv denied 74 NY2d 900 [1989]). The hearing court, in denyingdefendant's motion, gave specific and legitimate reasons for not believing the firstwitness's testimony, and it cannot be said that the court was "clearly erroneous" in thatregard (People v Wilson, 38AD3d 1326 [2007], lv denied 9 NY3d 853 [2007]). I would thus affirm thecourt's denial of defendant's CPL 440.10 motion. Present—Scudder, P.J., Fahey,Lindley, Valentino and Whalen, JJ.