| People v Macon |
| 2015 NY Slip Op 04917 [129 AD3d 484] |
| June 11, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Darnell Macon, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), forrespondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered November1, 2011, which denied defendant's CPL 440.10 motion to vacate a judgment ofconviction rendered June 12, 2002, unanimously affirmed.
The motion court properly found that the claimed new evidence did not create aprobability that, if introduced at trial, the verdict would have been more favorable todefendant (see CPL 440.10 [1] [g]). The court conducted a thorough hearing,which included, among other things, the testimony of defendant and his allegedlyexculpatory witness, and the record supports the court's denial of the motion (33 Misc 3d1216[A], 2011 NY Slip Op 51945[U] [Sup Ct, Bronx County 2011]). The court had theunique opportunity to see and hear the witnesses (see People v Prochilo, 41NY2d 759, 761 [1977]), and there is no basis for disturbing its credibility determinations.We have reviewed the photographic and videotape evidence introduced at the hearingand find it equivocal and insufficient to warrant a new trial. Furthermore, as the motioncourt found, the record does not satisfactorily explain why defendant's witness, who has apersonal connection to defendant, did not come forward sooner.
To the extent defendant is claiming that he is actually innocent, that claim is withoutmerit because it is based on the same evidence that the court properly discredited. Thus,we find it unnecessary to address any issues relating to the procedural requirements foran actual innocence claim. Concur—Friedman, J.P., Acosta, Richter and Gische,JJ. [Prior Case History: 33 Misc 3d 1216(A), 2011 NY Slip Op 51945(U).]