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HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on defendant’s motion to vacate his conviction, even though the issues were raised or could have been raised in a prior motion to vacate. The defendant presented evidence that defendant’s cell phone was pinged, not defendant’s girlfriend’s cell phone. Therefore defendant had standing to challenge the pinging of the cell phone. The defendant’s motion raised the issue whether a police officer lied when he testified the girlfriend’s cell phone was pinged, and whether evidence that the girlfriend’s phone was broken at the relevant time (presented to the grand jury) was withheld from the defendant:

… [D]efendant submitted police reports wherein the officer who had testified at the suppression hearing (testifying officer) stated that law enforcement officers were “pinging” a phone that belonged to defendant. Defendant further submitted affidavits from the minor [his girlfriend] and her grandmother, who had sought the aid of law enforcement, indicating that the minor’s phone had broken days before the police action and that they had informed the testifying officer and prosecutor of that fact either the day on which the police pinged the cell phone or, at the very least, at some date before the suppression hearing. Indeed, the minor averred that she had testified before the grand jury that her phone had broken and that defendant’s cell phone was the only phone that she and defendant had used during the relevant time period. Defendant contends that the minor’s grand jury testimony constituted exculpatory evidence that was not disclosed to the defense despite a specific request therefor.

It is well settled that prosecutors have the duty “not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness”… . Defendant has submitted credible documentary evidence establishing that the testifying officer’s testimony at the suppression hearing was false and that the prosecutor knew or should have known that the testimony was false … . Moreover, defendant has submitted credible documentary evidence establishing that the prosecutor failed to disclose material, exculpatory evidence … . People v Reed, 2018 NY Slip Op 02068, Fourth Dept 3-23-18

CRIMINAL LAW (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/FALSE TESTIMONY (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/POLICE OFFICERS (CRIMINAL LAW, FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/PROSECUTORS (FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))

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