People v Foster

2018 NY Slip Op 00435 [157 AD3d 901]

January 24, 2018

Appellate Division, Second Department

As corrected through Wednesday, February 28, 2018

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The People of the State of New York,Respondent, v Christopher Foster, Appellant.

Feldman and Feldman, Uniondale, NY (Steven A. Feldman and Arza Feldamn of counsel),for appellant.

Timothy Sini, District Attorney, Riverhead, NY (Thomas C. Costello of counsel), forrespondent.

Appeal by the defendant, by permission, from an order of the Supreme Court, SuffolkCounty (William J. Condon, J.), dated October 7, 2016, which, after a hearing, denied his motionpursuant to CPL 440.10 (1) (g) to vacate a judgment of that court rendered November 13, 2015,convicting him of manslaughter in the first degree and endangering the welfare of a child, upon ajury verdict, and imposing sentence.

Ordered that the order is affirmed.

The defendant was convicted of manslaughter in the first degree and endangering the welfareof a child in connection with the death of his one-month-old son. The judgment of convictionwas affirmed by this Court (see People vFoster, 143 AD3d 736 [2016]). The defendant moved to vacate the judgment ofconviction pursuant to CPL 440.10 (1) (g) based on newly discovered evidence, which consistedof an individual's statement that she heard the victim's maternal grandmother implicate thevictim's mother in the subject crimes. After a hearing at which this individual testified and atwhich the defendant did not call the maternal grandmother to testify, the Supreme Court deniedthe defendant's motion. The court properly found that the defendant failed to meet his burden ofestablishing that the newly discovered evidence was of such a character as to create a probabilitythat, had it been received at trial, the verdict would have been more favorable to the defendant(see CPL 440.10 [1] [g]; Peoplev Mazyck, 118 AD3d 728 [2014]; People v Cain, 96 AD3d 1072 [2012]).

Accordingly, the defendant's motion to vacate the judgment of conviction was properlydenied. Austin, J.P., Sgroi, Hinds-Radix and Iannacci, JJ., concur.