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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert McCULLOUGH, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HAYES, HURLBUTT and KEHOE, JJ. Michael Burger, Rochester, for Defendant-Appellant. Patrick H. Fierro, Rochester, for Plaintiff-Respondent.

On appeal from a judgment convicting him of three counts of burglary in the first degree (Penal Law § 140.30[1], [2] ), two counts of assault in the second degree (Penal Law § 120.05[2] ) and other crimes, defendant contends that the testimony of the sole identification witness was the product of misconduct by the prosecutor or his investigator, and that the testimony of a proffered second identification witness constituted newly discovered evidence, warranting reversal of the judgment of conviction and a new trial.

 There is no basis on this record for concluding that the prosecutor or his investigator was guilty of misconduct in procuring the testimony of the sole identification witness.   Further, Supreme Court properly denied defendant's motion to set aside the verdict on the ground of newly discovered evidence.   Pursuant to CPL 330.30(3), the court may set aside the verdict on the ground that “new evidence has been discovered since the trial which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.”   In order to be considered newly discovered and to justify interference with the verdict, the evidence must be material, noncumulative, and not merely impeaching or contradictory of other evidence (see, People v. Salemi, 309 N.Y. 208, 215-216, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;  People v. Ferrara, 238 A.D.2d 353, 656 N.Y.S.2d 938;  People v. Nicholson, 222 A.D.2d 1055, 1056-1057, 635 N.Y.S.2d 869).   Here, there is no showing by defendant that the evidence could not have been discovered before or during trial and produced at trial in the exercise of due diligence by the defense (see, People v. Carrier, 270 A.D.2d 800, 706 N.Y.S.2d 276;  People v. Fisher, 266 A.D.2d 308, 309, 699 N.Y.S.2d 58, lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489;  People v. Rodriguez, 193 A.D.2d 363, 366, 596 N.Y.S.2d 824, lv. denied 81 N.Y.2d 1079, 601 N.Y.S.2d 599, 619 N.E.2d 677).   Further, the proffered testimony of the second identification witness would be cumulative to the testimony of the first witness (see, People v. Rivera, 256 A.D.2d 1098, 1100, 685 N.Y.S.2d 164, lv. denied 93 N.Y.2d 977, 695 N.Y.S.2d 63, 716 N.E.2d 1108).   One of the two irreconcilable versions told by the first witness was that she knew the intruder and that the intruder was not defendant.   The new evidence thus would do nothing more than bolster evidence already submitted to and discredited by the jury (see, People v. Copeland, 185 A.D.2d 280, 282, 585 N.Y.S.2d 794, lv. dismissed 80 N.Y.2d 902, 588 N.Y.S.2d 827, 602 N.E.2d 235).   Further, the evidence was not “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30[3];  see, People v. Carrier, supra;  People v. Lane, 212 A.D.2d 637, 638, 622 N.Y.S.2d 590, lv. denied 85 N.Y.2d 975, 629 N.Y.S.2d 735, 653 N.E.2d 631).   The testimony of the second witness was not credible when considered in light of the circumstances surrounding the recantation of the first witness, and, moreover, when considered in light of the overwhelming circumstantial evidence against defendant.

Judgment unanimously affirmed.


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