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Defendant Entitled to a Hearing On His Motion to Vacate His Conviction/Newly Discovered Evidence Someone Else Confessed to the Crime

The Third Department determined defendant had presented sufficient evidence to warrant a hearing on his motion to vacate his conviction.  The court found no indication the new evidence could have been discovered with due diligence at the time of trial and the new evidence (the confession of another to the crime) was not merely impeachment evidence:

…[W]e find that the affidavit of Maurice Miller proffered by defendant was sufficient to warrant a hearing.Miller’s affidavit was subscribed to in January 2012 and alleged, among other things, that he had witnessed another drug dealer,Alexander Llanos, sell crack to Grimsley on the day of the shooting, that defendant was not present in the area, and thatLlanos later confessed to the shooting. First addressing whether the evidence could have been obtained with due diligence prior to trial, a court must keep in mind “the practicalities of the situation” and weigh the “limited resources generally available” to a defendant … . Miller averred that he had not contacted police at the time of the crime because he feared retaliation. Defendant was 16 years old, incarcerated and had assigned counsel. Under these circumstances, there is no indication that defendant’s failure to discover this witness was the result of a lack of due diligence … .

Turning to the question of whether the evidence proffered was merely impeachment evidence, the confession of Llanos to the crime was material to the ultimate issue of defendant’s guilt or innocence … . Furthermore, a defendant has a fundamental right to offer into evidence the admission of another to the crime with which he or she is charged and, therefore, a hearing should have been held to determine the probative value of Miller’s testimony and its probable effect on the verdict … . Accordingly, we find a hearing necessary to promote justice inasmuch as the issues raised are “‘sufficiently unusual and suggest searching investigation'” … . People v Page, 2014 NY Slip Op 105312, 3rd Dept 3-13-14

 

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