PEOPLE v. DeVITO (2001)

Orders, Supreme Court, New York County (Joan Sudolnik, J. and Bonnie Wittner, J.) entered July 3, 2000 and August 2, 2000, respectively, denying defendants' motions made pursuant to CPL 440.10 to, inter alia, vacate their judgments of conviction, unanimously affirmed.

 Both motion courts properly concluded that the affidavits from two recently-retired supervisory police officers submitted by defendants did not constitute newly discovered evidence within the meaning of CPL 440.10(g), and that, in any event, they would not have changed the verdict, or the result of the hearings held pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 that had been at issue on defendants' prior appeals (People v. Feerick, 230 A.D.2d 689, 646 N.Y.S.2d 810;  People v. Feerick, 241 A.D.2d 126, 671 N.Y.S.2d 13, affd. 93 N.Y.2d 433, 692 N.Y.S.2d 638, 714 N.E.2d 851).

Defendants offered no reasonable excuse for their failure to come forward with the information contained in these affidavits at an earlier date, either at trial, or at the first CPL 440.10 motion, made in 1994, when the information was unquestionably known to defendants.   Indeed, the record establishes that one of these witnesses was assisting the defense at the time of sentencing.   Moreover, the Police Department's disapproval, in January 1995, of the other witness's request to sign an affidavit in support of defendants, who had already been sentenced, fails to explain why the defense did not make use of the proffered evidence at trial or on the first CPL 440.10 motion.

In any event, notwithstanding defendants' arguments to the contrary, the determinations of the motion courts, that the alleged newly discovered evidence would not have changed the result of the earlier Kastigar hearings or of the trial, is amply supported by the record.   In their assertions to the contrary, defendants rehash arguments concerning the underlying Kastigar issue that this Court has previously rejected (see, People v. Feerick, 241 A.D.2d 126, 134-136, 671 N.Y.S.2d 13, supra ).   Furthermore, one affidavit was based on hearsay and the other merely constituted impeachment evidence, and neither affiant had personal knowledge bearing on the central issue of whether the People had made use of defendants' immunized statements.

 The motion courts were not obligated to hold any evidentiary hearings (see, People v. Loomis, 256 A.D.2d 808, 683 N.Y.S.2d 306, lv. denied 93 N.Y.2d 854, 688 N.Y.S.2d 502, 710 N.E.2d 1101).   We note that Justice Sudolnik had presided over the original and reopened Kastigar hearings, and Justice Wittner had presided over defendants' trial.   As the courts with the most intimate knowledge of the facts and issues and which had heard the witnesses, they properly concluded after reviewing the relevant record that the newly presented affidavits would not change their rulings.

We have considered and rejected defendants' remaining claims.