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DEFENDANT’S MOTION TO VACATE HIS CONVICTION OF A 1996 MURDER BASED UPON NEWLY DISCOVERED EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY GRANTED (SECOND DEPT).

The Second Department determined County Court properly granted defendant’s motion to vacate his conviction stemming from a 1996 murder, despite defendant’s confession, based upon evidence of third-party culpability, i.e., statements allegedly made by Gombert to Santoro about Gombert’s involvement in the crime:

… [W]e find that the newly discovered evidence “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]). A reasonable jury could credit Santoro’s testimony regarding the statements made by Gombert, including that he could not be charged with the rape and murder of the victim because “[t]hey already got the other suckers,” and find that such statements raise a reasonable doubt as to the defendant’s involvement in the subject crimes … . Moreover, had Santoro’s testimony been available to the defendant at trial, defense counsel could have advanced the theory that Gombert was the actual perpetrator of the crimes, rather than merely denying the defendant’s involvement … . In fact, the codefendant was acquitted following his third trial, at which Santoro’s testimony was admitted for the first time.

Further, although the evidence presented at the defendant’s trial included the defendant’s statement confessing to the crimes, the record reveals the existence of circumstances casting doubt on that statement. The portion of the defendant’s statement regarding how he tied the victim’s hands together was inconsistent with the testimony of a medical examiner for the People as to the manner in which the victim was “hogtied” with rope. In addition, the defendant presented testimony at trial from a polygraph examiner, who opined that the defendant was telling the truth during a polygraph examination when he initially denied raping and killing the victim. People v Krivak, 2020 NY Slip Op 05226, Second Dept 9-30-20

 

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