You are here: / Newly Discovered Evidence Required Vacation of Murder Conviction

Search Results

/ ,

Newly Discovered Evidence Required Vacation of Murder Conviction

The Second Department affirmed Supreme Court’s vacation of a murder conviction (pursuant to a CPL 440.10 motion) based upon newly discovered evidence.  At a hearing, the defendant presented evidence calling into question the testimony of two witnesses who had claimed to have seen the shooting:

CPL 440.10(1)(g) provides that a court may vacate a judgment of conviction upon the ground that: “New 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.” The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion (see CPL 440.30[6]…). The power to vacate a judgment of conviction on the ground of newly discovered evidence rests within the discretion of the hearing court … . The court must make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial … .

Contrary to the People’s contention, the Supreme Court properly determined that the defendant satisfied his burden of proof and that the likely cumulative effect of the newly discovered evidence, including the evidence of the broad conspiracy to pay the eyewitnesses to implicate the defendant as the shooter, would have been a verdict more favorable to the defendant … . People v Singh, 2013 NY Slip Op 07508, 2nd Dept 11-13-13

 

/ , , ,

Valid Waiver of Appeal Does Not Preclude Review of Whether Ineffective Assistance Affected Voluntariness of Plea

The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected:

The defendant’s valid waiver of his right to appeal precludes review of his challenge to the factual sufficiency of his plea allocution … . While the valid waiver of his right to appeal would typically preclude review of the defendant’s claim that he was deprived of his right to effective assistance of counsel, here, the defendant claims that the alleged ineffective assistance may have affected the voluntariness of his plea, and, as such, his claim is reviewable … . Nevertheless, contrary to the defendant’s contention, his attorney provided him with meaningful representation … . Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion to withdraw his guilty plea … . People v Milton, 2013 NY Slip Op 07507, 2nd Dept 11-13-13

 

/ ,

Unpreserved Erroneous Denial of Challenge to Juror Required Reversal

The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause.  (Defense counsel did not challenge the juror on the specific ground raise on appeal):

Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me that the police saw fit to arrest and the District Attorney saw fit to prosecute, so that automatically renders my opinion.” The prospective juror never unequivocally stated that his prior state of mind regarding the police and the District Attorney would not influence his verdict, and that he would render an impartial verdict based solely on the evidence. His responses as a whole showed that there was doubt as to his ability to be impartial. Therefore, the trial court erred in denying defense counsel’s application to discharge this prospective juror for cause … . Because defense counsel exercised a peremptory challenge against this prospective juror, and also exhausted his allotment of peremptory challenges, this error cannot be considered harmless … . People v Campbell, 2013 NY Slip Op 07500, 2nd Dept 11-13-13

 

/ , , ,

Defendant Should Have Been Allowed to Present Evidence Relating to Victim’s Recantation at SORA Hearing

The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim:

The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying allegations of sexual abuse, and denying the defendant’s motion in limine to permit his daughter to testify at the SORA hearing. At a SORA hearing, “[t]he court shall allow the sex offender to appear and be heard” (Correction Law § 168-n[3]). The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under the Sex Offender Registration Act (see Correction Law article 6-C [hereinafter SORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). The SORA court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n[3]). Further, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n[3]). Here, the only facts elicited at the time of the defendant’s plea of guilty were that, on one occasion, he touched his daughter’s breasts and that he did so for sexual gratification, and therefore he was barred from relitigating those facts in this SORA proceeding (see Correction Law § 168-n[3]). However, the defendant was entitled to rely upon the proffered evidence for the limited purpose of contesting the People’s allegations that he engaged in intercourse with his daughter and that the sexual misconduct was ongoing, which resulted in the assessment of points under risk factors 2 and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., the nature and duration of the sexual contact), the defendant should have been permitted to introduce it… . People v Holmes, 2013 NY Slip Op 07459, 2nd Dept 11-13-13

 

/

Consecutive Sentences for Possession of Weapon and the Crime Committed Later with the Weapon Okay

In a full-fledged opinion by Judge Read, the Court of Appeals determined “a sentence imposed for ‘simple’ knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon.  [The defendants in these cases] completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.”  The court explained:

The mens rea for any crime “‘can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time'” … .  The mens rea for “simple” possession is knowing unlawful possession of a loaded firearm.  So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible.  People v Brown… 199, 200, 201, CtApp 11-14-13

 

/ ,

Statutory 9% Interest Rate, Not Contractual 18% Rate, Should Have Been Applied to Breach of Contract Damages (Even Though the Monthly Payments Were Deposited in an Escrow Account During Litigation)

The Second Department determined plaintiff should have been awarded prejudgment interest on the principal amount of the damages awarded for breach of contract at the statutory 9% rate, not the contractual 18% rate which was included in the agreed monthly installment payments:

…CPLR 5001(a) mandates an award of prejudgment interest on the principal amount of the damages awarded for its breach of contract even though the monthly payments due were deposited in an escrow account during the pendency of this action, and [defendant] received no benefit from the disputed payments while they were held in escrow … . However, the Surrogate’s Court improperly applied interest on the monthly payments due at the rate of 18% per annum. “When a claim is predicated on a breach of contract, the applicable rate of prejudgment interest varies depending on the nature and terms of the contract” … . The contract rate of interest will be “used to calculate interest on principal prior to loan maturity or a default in performance,” and in the absence of “a provision in the contract addressing the interest rate that governs after principal is due or in the event of a breach, New York’s statutory rate will be applied as the default rate” … . Under the terms of the agreement at issue here, each monthly payment includes interest at the rate of 18% per annum. Since the contract rate has already been applied to each monthly payment prior to its maturity, and the agreement does not include a provision addressing the interest rate that governs after each monthly payment is due or in the event of a breach, the Surrogate’s Court should have applied interest upon each monthly payment from the date it became due at the statutory rate of 9% per annum (see CPLR 5004…). Ross v Ross Metals Corp, 2013 NY Slip Op 07466, 2nd Dept 11-13-13

 

/

“Sudden Stopping” and “Emergency Doctrine” Jury Instructions Proper in Rear-End Collision Case

Plaintiff was rear-ended by defendant [Dellapenta] on a clear, windy day when blowing snow caused a temporary whiteout. The jury returned a verdict of no cause for action.  The Fourth Department determined the jury was properly given the “sudden stopping” charge and the emergency doctrine:

While plaintiff claimed that he was forced to stop due to the actions of the vehicle ahead of him …, Dellapenta testified that plaintiff did not slow down before the whiteout, he did not see any vehicles ahead of plaintiff, plaintiff’s vehicle was completely stopped in the whiteout, he never saw plaintiff’s brake or hazard lights, and plaintiff told Dellapenta after the accident that he stopped because he could not see.  Thus, the issue whether plaintiff “stopped suddenly, without an apparent reason to do so,” was properly submitted to the jury … .

We reject plaintiff’s further contention that the court erred in instructing the jury on the emergency doctrine (see PJI 2:14) inasmuch as, evaluating the evidence in the light most favorable to defendants, a reasonable view of the evidence supported the conclusion that a sudden and temporary whiteout constituted a qualifying emergency … .  Although Dellapenta had previously experienced whiteouts … at that location, such experience does not negate the applicability of the emergency doctrine “as to the events in issue in this case” … . Barnes v Dellapente…, 1039, 4th Dept 11-8-13

 

/ ,

Emergency Doctrine Precluded Action on Behalf of Driver of Car Which Crossed Into On-Coming Lane of Traffic; ”Noseworthy” Doctrine Did Not Apply to Reduce Plaintiff’s Decedent’s Burden of Proof

The Fourth Department reversed Supreme Court and granted summary judgment to defendant who was struck when plaintiff’s decedent’s on-coming car crossed into defendant’s lane.  The court determined the “Noseworthy” rule (lowering the plaintiff’s burden of proof) did not apply and the emergency doctrine precluded recovery:

Under the emergency doctrine, “ ‘when [a driver] is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes [the driver] to be reasonably so disturbed that [he or she] must make a speedy decision without weighing alternative courses of conduct, the [driver] may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the [driver] has not created the emergency’ ” … .  It is well established that a driver is “not required to anticipate that [a] vehicle, traveling in the opposite direction, [will] cross over into his [or her] lane of travel” … .

Here, defendants met their initial burden by establishing that the emergency doctrine applied, inasmuch as they established that decedent’s vehicle unexpectedly crossed over into defendant’s lane of travel, defendant had been operating his vehicle in a lawful and prudent manner, and defendant had little time to react to avoid the collision … .  Although “it generally remains a question for the trier of fact to determine whether an emergency existed and, if so, whether the [driver’s] response was reasonable” …, we conclude that summary judgment is appropriate here because defendants presented “sufficient evidence to establish the reasonableness of [defendant’s] actions [in an emergency situation] and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact”… . Shanahan… v Mackowiak…, 1105, 4th Dept 11-8-13

 

/ , ,

Purchase of Life Estate Considered Transfer of Property Requiring Delay of Medicaid Eligibility

The Fourth Department upheld the determination that petitioner’s transfer of property within the 60-month look-back period for Medicaid mandated an approximately fourteen-month delay in Medicaid eligibility (petitioner was in a nursing home, seeking payment of the expenses by Medicaid).  The Fourth Department explained the relevant criteria with respect to petitioner’s purchase of a life estate in property previously purchased by her daughter and grandson:

“ ‘In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services’ for a certain penalty period (Social Services Law § 366 [5] [d] [3]).  The look-back period is the ‘[60]month period[ ] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance’ (§ 366 [5] [d] [1] [vi]).  Where an applicant has transferred assets for less than fair market value, the burden of proof is on the applicant to ‘rebut the presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of future need to qualify for medical assistance’ ” … .  With respect to the specific issue of the purchase of a life estate for less than fair market value, Social Services Law § 366 (5) (e) (3) (ii) provides that “the purchase of a life estate interest in another person’s home shall be treated as the disposal of an asset for less than fair market value unless the purchaser resided in such home for a period of at least one year after the date of purchase.” Matter of Albino v Shah…, 1152, 4th Dept 11-8-13

 

/ , , ,

Bank Was Not a Statutory Lien Law Trustee; Question of Fact Whether Bank Was Aware Funds Were Diverted Lien Law Trust Funds

Plaintiff, a subcontractor in an environmental remediation project run by defendant AAA Environmental, sued on behalf of similarly situated subcontractors alleging that the arrangement AAA had with First Niagara Bank violated Lien Law article 3-A.  By that arrangement, each night funds from AAA’s operational account would be transferred to AAA’s line of credit account to reduce the balance. If the amount to be charged to AAA’s operational account exceeded the funds available, funds would be automatically transferred from the line of credit account to the operational account. Supreme Court determined the arrangement violated the Lien Law finding that Niagara Bank had notice the funds were diverted Lien Law trust funds and the bank was not a holder in due course. The Fourth Department disagreed and held Niagara Bank is not a Lien Law statutory trustee and there was a question of fact whether Niagara Bank had notice it was receiving diverted Lien Law trust funds:

First Niagara is not a Lien Law statutory trustee under the facts of this case and thus cannot be held liable for a violation of the Lien Law on that basis. “A lender is not a statutory trustee because ‘[n]o one other than an owner, contractor, or subcontractor is designated as a prospective trustee in article 3-A [of the Lien Law]’ ” … .  Although the Court of Appeals has held that a lender may become a statutory trustee when a contractor assigns its right of payment from the owner to the lender as security for a loan and the owner makes payments directly to the lender until the contractor’s debt is repaid …, First Niagara received no such assignment here.

…[T]he court erred in determining as a matter of law that it had actual notice that it was receiving diverted Lien Law trust funds, and thus could be held liable under Lien Law § 72 (1).  …

…[T]he court erred in applying a constructive notice standard in determining that First Niagara was not a holder in due course, and thus could be liable under Lien Law § 72 (1).  As the Court of Appeals noted in I-T-E Imperial Corp.—Empire Div. v Bankers Trust Co. (51 NY2d 811), “[w]ith the adoption . . . of the Uniform Commercial Code, the concept of notice under [UCC] article 3 (and by analogy under article 4 as well . . . ) has, as we have held in Chemical Bank of Rochester v Haskell (51 NY2d 85), been changed from an objective to a subjective standard, and that change must be deemed to have amended the Lien Law as well” (id. at 813-814…).

Furthermore, “[t]he purpose of UCC 3-304 (7)—unique to New York and Virginia—[is] to require that questions of notice . . . be determined by a subjective test of actual knowledge rather than an objective test which might involve constructive knowledge” … . Price Trucking Corp… v AAA Environmental Inc…m 1088, 4th Dept 11-8-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy