BASED ON THE SUBMITTED EVIDENCE OF THIRD PARTY CULPABILITY IN THIS RAPE AND MURDER CASE, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).

The Second Department determined defendant was entitled to a hearing on his motion to vacate his murder conviction. The defendant and his codefendant, DiPippo, were convicted of the 1995 rape and murder of a 12-year-old girl. At DiPippo’s third trial DiPippo was allowed to present evidence of third culpability. The third party, Gombert, had allegedly confessed to a fellow inmate. After DiPippo’s acquittal, defendant moved to vacate his conviction based upon the newly discovered evidence of third party culpability. The motion was denied without a hearing. The matter was remitted for a hearing:

The court which entered a judgment of conviction may, on motion of the defendant, vacate the judgment on the ground that “[n]ew 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”… .

“Once the parties have filed papers and all documentary evidence or information has been submitted, the court is obligated to consider the submitted material for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact'”… . “[W]hether a defendant is entitled to a hearing on a CPL 440.10 motion is a discretionary determination” … .

Under the circumstances of this case, the County Court improvidently exercised its discretion in denying, without conducting an evidentiary hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction. In view of the parties’ submissions, particularly the third-party culpability evidence relating to Gombert, a hearing is necessary to promote justice … . Following a full evidentiary hearing, the court will be in a position to “make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial” … . People v Krivak, 2019 NY Slip Op 00464, Second Dept 1-23-19