| People v Shaw |
| 2019 NY Slip Op 05585 [174 AD3d 1036] |
| July 11, 2019 |
| Appellate Division, Third Department |
[*1](July 11, 2019)
| The People of the State of New York,Respondent, v David Shaw, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Mulvey, J. Appeal, by permission, from an order of the County Court of Rensselaer County(Ceresia, J.), entered January 22, 2016, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment convicting him of the crime of murder in the second degree (two counts),without a hearing.
In 1973, defendant and Vincent Harris were charged by indictment with two counts ofmurder in the second degree. At trial, Joyce Shufelt testified that she enlisted the two men to beatup the victim, her former boyfriend. She also testified that she informed the men that they couldtake the keys to the victim's business and rob it. Shufelt testified that, on October 29, 1973, shedrove defendant and Harris to the victim's house, where they waited for him, and, when hearrived, Harris fatally shot the victim with a gun provided by defendant. Defendant and Harris,neither of whom testified at trial, were each convicted as charged and sentenced to prison termsof 25 years to life on each count, to run concurrently. On appeal, this Court affirmed defendant'sconviction, finding that Shufelt's accomplice testimony was corroborated by other evidence (49AD2d 658 [1975]).
In June 2015, defendant moved to vacate his judgment of conviction pursuant to CPL 440.10(1) (g) based on newly discovered evidence in the form of an affidavit from Harris stating thatdefendant was not present when the victim was shot and killed. County Court denied the motionwithout a hearing. Defendant appeals.
County Court did not err in denying defendant's motion without a hearing. CPL 440.10 (1)(g), which defendant relies upon here, permits a postjudgment application to vacate a judgmentof conviction on the ground that "[n]ew evidence has been discovered since the entry of ajudgment based upon a verdict of guilty after trial, which could not have been produced by thedefendant at the trial even with due diligence on his [or her] part and which is of such characteras to create a probability that had such evidence been received at the trial the verdict would havebeen more favorable to the defendant." "[T]he affidavit of a codefendant who had previouslyexercised his [or her] 5th Amendment right not to testify" at a joint trial with the defendant, andwho now seeks to exculpate the defendant, "may constitute newly discovered evidence" withinthe meaning of CPL 440.10 (1) (g) (People v Beach, 186 AD2d 935, 936 [1992]; seePeople v Staton, 224 AD2d 984, 984 [1996]). The court may vacate a defendant's judgmentif the defendant shows that the newly discovered evidence fulfills all the following requirements:"(1) [i]t must be such as will probably change the result if a new trial is granted; (2) it must havebeen discovered since the trial; (3) it must be such as could have not been discovered before thetrial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not becumulative to the former issue; and, (6) it must not be merely impeaching or contradicting theformer evidence" (People v Tucker,40 AD3d 1213, 1214 [2007] [internal quotation marks and citations omitted], lvdenied 9 NY3d 882 [2007]; see People v Salemi, 309 NY 208, 216 [1955], certdenied 350 US 950 [1956]; People vLackey, 48 AD3d 982, 983 [2008], lv denied 10 NY3d 936 [2008]). "A hearingon a CPL 440.10 motion is only required where the defendant bases the motion upon nonrecordfacts that are material and, if established, would entitle the defendant to relief" (People v Lalonde, 160 AD3d1020, 1026 [2018] [internal quotation marks and citations omitted], lv denied 31NY3d 1118 [2018]; see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Pabon, 157 AD3d 1057,1058 [2018], lv denied 31 NY3d 986 [2018]). The court has the discretion to determinewhether the defendant is entitled to a hearing, and its determination will be not be disturbedabsent an abuse of discretion (see Peoplev Jones, 24 NY3d 623, 634-635 [2014]).
Harris' affidavit could constitute newly discovered evidence because he did not testify at hisjoint trial with defendant (see People v Staton, 224 AD2d at 984; People v Beach,186 AD2d at 936). Nevertheless, defendant did not show that this new evidence would "probablychange the result if a new trial [was] granted" (People v Tucker, 40 AD3d at 1214[internal quotation marks and citations omitted]). Shufelt testified at trial that defendant waspresent at the time of the crime and provided Harris with the gun. In his 2015 affidavit, Harrisaverred that defendant had been with him and Shufelt earlier on the night of the crime but, afterdefendant went home, Harris and Shufelt returned to the victim's house, Shufelt gave him a gunand Harris approached and shot the victim. Harris specifically averred that defendant was notpresent at the time of the shooting and that they never discussed a plan to rob or shoot the victim.This affidavit was created more than 40 years after the crime and trial, and five years after Harriswas released on parole, without any explanation for the delay. Moreover, these statements inHarris' affidavit are directly contradicted by statements he made in multiple appearances beforethe Board of Parole. Harris told the Board of Parole that defendant and Shufelt picked him upthat night, the crime involved a planned robbery that had been arranged with defendant,defendant selected the victim, defendant produced a gun that Harris grabbed, Shufelt remained inthe car while "we" (i.e., Harris and defendant) confronted the victim, and Harris shot thevictim.
This Court has already determined that Shufelt's testimony was adequately corroborated byother testimony and evidence (49 AD2d at 658-659). The portions of Harris' affidavit regardingthe planning and earlier parts of the night of the murder corroborate some of Shufelt's testimonyand other trial evidence. The only exculpatory parts of Harris' affidavit are directly contradictedby his own prior statements at parole hearings, which would undoubtedly lead to rigorousimpeachment at a trial. The affidavit does not address Harris' statements to the Board of Parole orexplain why he previously implicated defendant and has now changed his story (see People v McGuire, 44 AD3d968, 968 [2007], lv denied 10 NY3d 813 [2008]). No other evidence at trial supportsthe version of events in Harris' affidavit. Under the circumstances, defendant has failed to showthat Harris' statement would probably, and not merely possibly, change the result at any new trial(see People v Smith, 108 AD3d1075, 1076-1077 [2013], lv denied 21 NY3d 1077 [2013]; People v Medina, 79 AD3d 909,910 [2010], lv denied 17 NY3d 798 [2011]; People v McGuire, 44 AD3d at968-969; People v Milea, 184 AD2d 791, 792 [1992], lv denied 80 NY2d 975[1992]). As defendant did not show the existence of nonrecord facts that were material andwould entitle him to relief, County Court did not err in denying the motion without a hearing (see People v LaPierre, 108 AD3d945, 946 [2013]).
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the order is affirmed.