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Motion to Set Aside Convictions Based On Newly Discovered Evidence Should Have Been Granted

The Fourth Department determined the trial court should have set aside defendant’s criminal contempt convictions pursuant to Criminal Procedure Law 330.30(3) based upon newly discovered evidence (phone records calling into question complainant’s trial testimony).  The Fourth Department wrote:

To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove 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, KA 11-00313, 389, 4th Dept, 5-3-13

 

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