More Sophisticated DNA Test, Ruling Out the Defendant as the Source of Semen, Was a Proper Basis for Vacating Defendant’s Conviction–Criteria Described

The Fourth Department upheld County Court's grant of defendant's motion to vacate his rape conviction because a recent DNA test demonstrated he was not the source of semen found in the victim's vagina (the source was the victim's boyfriend).  At the time of the trial the DNA results were inconclusive and the prosecutor had argued the presence of semen corroborated the victim's assertion defendant had raped her:

“It is well settled that on a motion to vacate a judgment of conviction based on newly [*2]discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” … . “The power to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court” … . People v White, 2015 NY Slip Op 01075, 4th Dept 2-6-15