THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHRISTOPHER SMITH DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Onondaga County Court (Anthony F. Aloi, J.), dated June 23, 2011.   The order denied the motion of defendant to vacate a judgment of conviction pursuant to CPL 440.10.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence:  (1) which will probably change the result if a new trial is granted;  (2) which was 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 impeach or contradict the record evidence” (People v. Madison, 106 AD3d 1490, 1492 [internal quotation marks omitted];  see People v. Salemi, 309 N.Y.208, 215–216, cert denied 350 U.S. 950).   Here, it is not probable that defendant would receive a more favorable verdict at a retrial if the codefendant testified in accordance with his affidavit (see People v. Jackson, 238 A.D.2d 877, 878, lv denied 90 N.Y.2d 859).   It is undisputed that defendant was driving the codefendant when the codefendant shot the victim, and no one else was in the car.   Moreover, it is unclear whether a jury would credit, upon a retrial, the codefendant's exculpatory testimony in light of the fact that the codefendant already pleaded guilty to assault in the first degree, was the individual who shot and injured the victim, did not provide the exculpatory statement until years after the trial, and provided that statement while serving his sentence at the same correctional facility as defendant.

Finally, “[i]n order to constitute newly discovered evidence, such evidence must not merely impeach or contradict the former evidence ․ The rule recognizes that recantation evidence is inherently unreliable ․ and insufficient alone to warrant vacating a judgment of conviction” (People v. Thibodeau, 267 A.D.2d 952, 953, lv denied 95 N.Y.2d 805).   During his plea colloquy, the codefendant stated that he acted in concert with another man, and it is undisputed that defendant was the only other man present during the crime.   The codefendant did not explain in his affidavit why he was recanting what he initially stated during his plea colloquy, i.e., that defendant was involved in the crime.   In light of the above, the court properly determined that the codefendant's affidavit does not constitute newly discovered evidence and therefore properly denied the CPL 440.10 motion without a hearing (see Jackson, 238 A.D.2d at 878–879).

Frances E. Cafarell

Clerk of the Court