| People v Backus |
| 2015 NY Slip Op 05330 [129 AD3d 1621] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Appellant, vCody Backus, Respondent. |
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for appellant.
Felasco & Cuomo, Fulton (Lucille M. Rignanese of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), dated March 19, 2014. The order granted 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 reversed on thelaw, the motion is denied, and the judgment of conviction is reinstated.
Memorandum: The People appeal from an order granting defendant's motionpursuant to CPL 440.10 to vacate the judgment convicting him upon a jury verdict, in2008, of murder in the second degree (Penal Law § 125.25 [3]), burglary inthe first degree (§ 140.30 [2]), and two counts of attempted robbery in thefirst degree (§§ 110.00, 160.15 [1], [2]), based on, inter alia, newlydiscovered evidence (see CPL 440.10 [1] [g]). We previously affirmed thejudgment of conviction (Peoplev Backus, 67 AD3d 1428 [2009], lv denied 13 NY3d 936 [2010]). Theevidence at trial included the testimony of a codefendant, who testified that he,defendant, and a third person planned to rob the victim, a Syracuse drug dealer. Thecodefendant testified that defendant entered the victim's apartment but left the entrancedoor unlocked and made a cell phone call to the codefendant, after which thecodefendant and the third person entered the apartment and demanded drugs and money.The codefendant further testified that the victim and the third person struggled over ahandgun, which discharged, causing the victim's death. The prosecution at trialintroduced a statement that defendant made to the police, in which he admitted that hewas present at the victim's apartment when two armed men burst into the apartment.Defendant's statement also indicated that he fled the scene prior to any shooting and didnot see what happened thereafter. In addition, the prosecution presented the testimony ofa woman who was present in the apartment when the perpetrators entered, who identifieddefendant as also being present, and the prosecution presented cell phone recordsestablishing that defendant made several calls to a cell phone allegedly possessed by thecodefendant. Prior to trial, the codefendant identified a woman as the driver of thegetaway car. Although that information was not introduced at trial, defendant's attorneywas notified that the codefendant had identified the woman as the driver, and that thewoman declined to talk with the police. The codefendant pleaded guilty to a reducedcharge with a promise of a shorter prison sentence, conditioned on his agreement totestify against defendant and the third person, who was acquitted after a separatetrial.
In June 2012, Kenneth Jackson, a member of a street gang in Syracuse, pleadedguilty to unrelated charges in federal court and was required, in accordance with the pleaagreement, to provide information concerning his other illegal activities, albeit with theagreement that he would not be charged with any crimes arising from those activities.Jackson eventually gave a statement to Syracuse police investigators, in which he averredthat he and another gang member robbed the victim, not the codefendant and theacquitted third person. Jackson also averred, [*2]however, that defendant went with them, that defendanthad left the door unlocked so that Jackson and the other gang member could enter, andthat defendant called the gang members by cell phone and informed them that the doorwas unlocked. Jackson averred that defendant looked surprised when the second gangmember produced a handgun inside the victim's apartment, and defendant left theapartment before the victim was shot. Jackson further averred that the second gangmember's girlfriend drove defendant, Jackson, and the other gang member back to anapartment after the crime, where they all ingested the drugs taken during the robbery andplanned their alibis for the evening.
The investigators informed defendant that Jackson admitted participating in thecrime, and defendant moved to vacate the judgment on the grounds that, inter alia, theinformation Jackson provided was newly discovered evidence. Supreme Court held ahearing on the motion, at which Jackson's statement was introduced. In addition, thewoman who the codefendant identified at trial as the getaway driver testified and denieddriving anyone to or from the crime, but she also testified that she was never contactedby the police. The second woman, who was identified as the driver in Jackson'sstatement, testified at the hearing that she drove defendant, Jackson and the other gangmember to and from the crime. She further testified that she heard a gunshot after seeingdefendant leave the victim's apartment, but before the two gang members left theapartment. Before she testified, the court assured her that she could not be prosecuted forany crime based on her testimony. Defendant testified at the hearing that he and hisfamily had been threatened by the second gang member to ensure defendant's silence,and that the second gang member accompanied defendant's mother when she visiteddefendant in prison.
At the conclusion of the hearing, the court concluded that, although defendant wasaware of the evidence at the time of trial, the evidence was newly discovered because hereasonably feared that the two gang members would kill him or members of his family ifhe implicated them, and because Jackson and the second woman would have invokedtheir Fifth Amendment rights if called at trial. The court further concluded that, if suchevidence had been received at trial, it would have created a reasonable probability thatthe verdict would have been more favorable to defendant. The court granted the motionand vacated defendant's judgment of conviction. The People appeal.
Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of conviction on theground that "[n]ew 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 defendantat the trial even with due diligence on his part and which is of such character as to createa probability that had such evidence been received at the trial the verdict would havebeen more favorable to the defendant; provided that a motion based upon such groundmust be made with due diligence after the discovery of such alleged new evidence." "It iswell 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 Smith, 108 AD3d 1075, 1076 [2013], lvdenied 21 NY3d 1077 [2013] [internal quotation marks omitted]; see People vSalemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]).Defendant has the burden of establishing "by a preponderance of the evidence every factessential to support the motion" (CPL 440.30 [6]). Furthermore, "[t]he power to grant anorder for a new trial on the ground of newly discovered evidence is purely statutory.Such power may be exercised only when the requirements of the statute have beensatisfied, the determination of which rests within the sound discretion of the court"(Salemi, 309 NY at 215; see People v White, 125 AD3d 1372, 1373 [2015];People v Pugh, 236 AD2d 810, 811 [1997], lv denied 89 NY2d 1099[1997]).
Here, we agree with the People that the court abused its discretion in determiningthat defendant met his burden on the motion. First, the court erred in admitting Jackson'sstatement in evidence at the hearing, and, in any event, the statement would not beadmissible at trial. This is vital because " '[i]mplicit in th[e] ground for vacating ajudgment of conviction is that the newly discovered evidence be admissible' "(People v Tankleff, 49AD3d 160, 182 [2007]; seePeople v Mazyck, 118 AD3d 728, 730 [2014], lv denied 24 NY3d 1086[2014]). Here, the court admitted the statement at the hearing as a declaration againstpenal interest, but it is well settled that "[f]or a statement against penal interest to beadmissible the interest compromised must be such as to 'all but rule [*3]out' motive to falsify, [and] the declarant must be consciousof the consequences of his statement at the time it is made . . . Thoseassurances of probative value, which might in a proper case substitute forcross-examination, were not present in this case" (People v Geoghegan, 51 NY2d45, 49 [1980]). Although a less stringent standard applies where, as here, the declarationis offered by defendant to exonerate himself rather than by the People, to inculpate him(see People v Stevens, 212 AD2d 746, 747 [1995], lv denied 85 NY2d943 [1995]), none of the requirements was met here. To the contrary, the statement of thegang member was provided only after he was assured that he would not be prosecuted forany information that he provided, thus removing any indicia of reliability regarding thatinformation (see People v Morgan, 76 NY2d 493, 495 [1990]).
Next, we conclude that the court erred in determining that the evidence upon whichdefendant relied was newly discovered. Even assuming, arguendo, that Jackson'sstatement was properly admitted at the hearing, and further assuming, arguendo, that theinformation he provided is material, noncumulative, and does not merely impeach orcontradict the record evidence, we conclude that the information was known to defendantat the time of the trial (see People v Taylor, 246 AD2d 410, 411-412 [1998],lv denied 91 NY2d 978 [1998]). We cannot agree with the court that it was ineffect "newly discovered" based on defendant's fear of physical harm to himself and hisfamily. "A defendant who chooses to withhold evidence should not be given a new trial'on the basis of the evidence thus withheld' " (People v Moore, 147 AD2d924, 924 [1989], lv denied 73 NY2d 1019 [1989]; see People v Cain, 96 AD3d1072, 1073-1074 [2012], lv denied 19 NY3d 1101 [2012]). Therefore, theevidence does not satisfy the requirement that it was "discovered since the entry of ajudgment based upon a verdict of guilty after trial" (CPL 440.10 [1] [g]; see Cain,96 AD3d at 1073-1074; see alsoPeople v Singleton, 1 AD3d 1020, 1021 [2003], lv denied 1 NY3d 580[2003]).
In addition, again assuming, arguendo, that all of the evidence is admissible, weconclude that there is no probability that if such evidence had been received at the trialthe verdict would have been more favorable to the defendant (see CPL 440.10 [1][g]; see generally People v Mooney [appeal No. 2], 162 AD2d 951, 952-953[1990], lv denied 76 NY2d 942 [1990]). The purportedly new evidence uponwhich defendant relies establishes that he helped plan the robbery, provided materialassistance in the commission of the crime, acted in concert with the perpetrators, andshared in the proceeds of the crime, thus providing sufficient evidence to support averdict of guilty as an accomplice to the felony murder charge of which he was convicted(see People v Reed, 97AD3d 1142, 1143 [2012], affd 22 NY3d 530 [2014], rearg denied 23NY3d 1009 [2014]; People v Sanchez, 167 AD2d 489, 490-491 [1990], lvdenied 77 NY2d 881 [1991]). " '[W]hether one is the actual perpetrator ofthe offense or an accomplice is, with respect to criminal liability for the offense,irrelevant' " (People v Rivera, 84 NY2d 766, 771 [1995]; seeCain, 96 AD3d at 1074). Present—Scudder, P.J., Smith, Carni, Lindley andDeJoseph, JJ.