PEOPLE v. JENKINS (2019)

Order, Supreme Court, New York County (Daniel McCullough, J.), entered on or about July 30, 2012, which denied defendant's CPL 440.10 motion to vacate a judgment of the same court (William A. Wetzel, J.), rendered August 18, 2005, unanimously affirmed.

The motion court providently exercised its discretion in denying defendant's motion to vacate his conviction on the basis of newly discovered evidence.  “[W]hether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination” (People v. Jones, 24 N.Y.3d 623, 635, 2 N.Y.S.3d 815, 26 N.E.3d 754 [2014] ).  The motion was not made with due diligence, because it was filed years after the discovery of the alleged new evidence without any valid excuse for the delay (see CPL 440.10[1][g];  People v. Mallet, 168 A.D.3d 542, 543, 90 N.Y.S.3d 522 [1st Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019] ).  Furthermore, the new evidence was not “of such character as to create a probability that had [it] been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10[1][g] ).  The affidavit of the proposed witness did nothing to undermine the extensive proof of defendant's guilt presented at trial, including defendant's incriminating statements.  On the contrary, even assuming that the proposed witness was describing an incident that occurred around the time and place of the murder, his affidavit, when viewed in conjunction with the trial evidence, appears to describe an unrelated incident.