New Evidence Demonstrated the Declarant, Not the Defendant, Committed the Murders of Which Defendant Was Convicted—Motion to Vacate Defendants’ Convictions Properly Granted

The Fourth Department affirmed County Court’s vacation of defendant’s murder convictions, after a hearing, based upon newly discovered evidence. Although the “declarant” did not testify, witnesses testified declarant admitted killing the two persons defendant had been convicted of murdering. There was considerable evidence supporting the reliability of the declarant’s statements. The court noted that the declarant’s statements were admissible under an exception to the hearsay rule as “statements against penal interest” and it was reasonable to assume the declarant was “unavailable” (a requirement for admissibility) because he would assert his right to remain silent if called as a witness. The court further noted that the testimony of declarant’s ex-wife was not protected by spousal privilege. Declarant’s threat to kill his wife if she reported the murders to the police removed the “communications from the protection of privilege:”

Contrary to the People’s contention, County Court properly determined, following a hearing, that defendant proved by a preponderance of the evidence that “[n]ew evidence has been discovered since the entry of [the] judgment . . . , 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” (CPL 440.10 [1] [g]; see CPL 440.40 [6]). People v Pierre, 2015 NY Slip Op 04985, 4th Dept 6-12-15