Newly Discovered Evidence Required Vacation of Murder Conviction

The Second Department affirmed Supreme Court’s vacation of a murder conviction (pursuant to a CPL 440.10 motion) based upon newly discovered evidence.  At a hearing, the defendant presented evidence calling into question the testimony of two witnesses who had claimed to have seen the shooting:

CPL 440.10(1)(g) provides that a court may vacate a judgment of conviction upon the ground that: “New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after 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; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.” The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL 440.30[6]…). The power to vacate a judgment of conviction on the ground of newly discovered evidence rests within the discretion of the hearing court … . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial … .

Contrary to the People’s contention, the Supreme Court properly determined that the defendant satisfied his burden of proof and that the likely cumulative effect of the newly discovered evidence, including the evidence of the broad conspiracy to pay the eyewitnesses to implicate the defendant as the shooter, would have been a verdict more favorable to the defendant … . People v Singh, 2013 NY Slip Op 07508, 2nd Dept 11-13-13