TEXT EXCHANGES WITH AND PHOTOGRAPHS OF THE RAPE AND SEXUAL-ABUSE VICTIM DELETED BY DEFENDANT FROM HIS CELL PHONE AND SUBSEQUENTLY RECOVERED DO NOT CONSTITUTE “NEWLY DISCOVERED” EVIDENCE WHICH WILL SUPPORT A MOTION TO VACATE THE CONVICTION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined defendant’s motion to vacate his conviction based on newly discovered evidence was properly denied without a hearing. Defendant was convicted of multiple counts of rape and sexual abuse of the fifteen-year-old victim. The newly discovered evidence was deleted by the defendant and subsequently recovered on defendant’s cell phone:

… [T]he evidence proffered is far from newly discovered—it is evidence the defendant knew about, was involved in the creation of, and believed he destroyed well before trial in an effort to conceal criminal activity. As defendant affirmed, he “deleted the photographs and/or text messages because [he] did not want anyone to see them.” This is unsurprising given that the material, including nude photographs he took of the victim, was compelling evidence of his sexual contact with a minor. Defendant cannot now claim that because certain “technology” was not available to recover the incriminating texts and photographs that he attempted to destroy, that material, now recovered, somehow qualifies as “newly discovered evidence.”

Nor has defendant met CPL 440.10 (g)’s due diligence prong, which requires that defendant show that the evidence could not have been produced at the trial even with due diligence on the part of defendant. Nowhere in defendant’s conclusory submissions is there any showing that the evidence was inaccessible before trial, or any indication that defendant tried to obtain it. People v Hartle, 2023 NY Slip Op 02029, CtApp 4-20-23

Practice Point: Text messages and photos of the sexual abuse and rape victim deleted from defendant’s cell phone and subsequently recovered cannot be deemed “newly discovered” evidence which will support a motion to vacate the conviction.