PEOPLE v. WELLS (2024)

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Rhonda Tomlinson, J.), dated November 10, 2022, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Michael A. Gary, J.) rendered May 13, 1996, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

The defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground, inter alia, that the prosecution committed a Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215;  People v. McGhee, 36 N.Y.3d 1063, 1064–1065, 142 N.Y.S.3d 863, 166 N.E.3d 1041) by failing to disclose certain police reports to the defense prior to trial.  Based upon the parties' submissions in support of and in opposition to the defendant's motion, there was no reasonable possibility that any such nondisclosure affected the outcome of the trial (see People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286).  Accordingly, the Supreme Court properly denied that branch of the defendant's motion, without a hearing (see People v. Krivoy, 135 A.D.3d 876, 877, 22 N.Y.S.3d 889).

The Supreme Court also properly denied that branch of the defendant's motion which was to vacate the judgment of conviction on the ground of misrepresentation or fraud on the part of the prosecutor in failing to correct purportedly false and misleading testimony (see CPL 440.10[1][b]).  There is no reasonable possibility that any such correction by the prosecutor would have changed the jury's verdict (see People v. Giuca, 33 N.Y.3d 462, 478, 104 N.Y.S.3d 577, 128 N.E.3d 655).

The Supreme Court properly denied that branch of the defendant's motion which was to vacate the judgment of conviction based on newly discovered evidence (see CPL 440.10[1][g]).  Failure to make the motion with due diligence following the discovery of the new evidence warrants denial of the motion without a hearing (see People v. Green, 201 A.D.3d 814, 160 N.Y.S.3d 108).  In any event, insofar as the new evidence was in fact newly discovered, no hearing is warranted as the defendant failed to show that the new evidence would probably change the result upon retrial (see People v. Stokes, 211 A.D.3d 1243, 1246, 179 N.Y.S.3d 825).

The Supreme Court providently exercised its discretion in summarily denying that branch of the defendant's motion which was to vacate the judgment of conviction on the ground of actual innocence (see People v. Griffin, 120 A.D.3d 1257, 991 N.Y.S.2d 896).  “ ‘ “[A]ctual innocence” means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial’ ” (id., quoting People v. Hamilton, 115 A.D.3d 12, 23, 979 N.Y.S.2d 97).  Here, the defendant did not make a prima facie showing of actual innocence, as the evidence he proffered did not constitute a sufficient showing of possible merit to warrant further exploration by the court (see People v. Viera, 200 A.D.3d 726, 154 N.Y.S.3d 871;  People v. Ramos, 194 A.D.3d 964, 149 N.Y.S.3d 171).

IANNACCI, J.P., WOOTEN, GENOVESI and VENTURA, JJ., concur.