Criteria for Motion to Vacate Based on Newly Discovered Evidence Explained
In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote:
Nor do we discern any error in County Court’s summary denial of that part of defendant’s motion that was based upon his claim of newly discovered evidence. As relevant here, “[t]o justify vacatur under CPL 440.10 (1) (g), the newly discovered evidence ‘must . . . be such as will probably change the result if a new trial is granted . . . [and] be material to the issue'” …. A hearing is not necessary when the court can “adequately review the matter based upon the contents of the record and the motion papers”… . People v Carter, 104989, 3rd Dept 4-11-13
