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MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged, exhaustive opinion by Justice Miller (too detailed to be fairly summarized here), determined defendant’s motion to vacate his conviction for a 1991 murder was properly granted (requiring a new trial). The early 90’s trial lasted one day. One of the police investigators has since been implicated in facilitating false identification testimony. The finger and palm print evidence did not match the defendant or his co-defendant. The blood evidence didn’t match. Crucial blood evidence was never tested and may have been lost. The identification evidence, the only evidence upon which the conviction could be based, was problematic. With respect to the criteria for newly discovered evidence in this context, the court wrote:

… [A] motion for a new trial based on newly discovered evidence should only be granted if the court finds, as a factual matter, that the movant has demonstrated that “[1] [n]ew evidence has been discovered since the entry of a judgment . . . [2] which could not have been produced by the defendant at the trial even with due diligence on his part and [3] 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]).

The remaining three criteria should be used to evaluate the ultimate issue of whether the new evidence would “create a probability” of a more favorable verdict… . In assessing the probable impact of the new evidence, the court should consider whether and to what extent the new evidence is (1) material to the pertinent issues in the case, (2) cumulative to evidence that was already presented to the jury, and (3) merely impeaching or contradicting the evidence presented at trial … . People v Hargrove, 2018 NY Slip Op 02649, Second Dept 4-18-18

​CRIMINAL LAW (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/VACATE CONVICTION, MOTION TO (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))/NEWLY DISCOVERED EVIDENCE (CRIMINAL LAW, (MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT))

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