        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

642
KA 11-01705
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER SMITH, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Onondaga County Court (Anthony F. Aloi, J.), dated June 23, 2011.
The order denied the motion of defendant to vacate a judgment of
conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant was convicted following a jury trial of
attempted murder in the second degree (Penal Law §§ 110.00, 125.25
[1]), assault in the first degree (§ 120.10 [1]) and criminal
possession of a weapon in the second degree (§ 265.03 [3]). We
affirmed defendant’s conviction on appeal (People v Smith, 90 AD3d
1565, lv denied 18 NY3d 998). While his direct appeal was pending,
defendant moved pursuant to CPL 440.10 (1) (g) to vacate the judgment
of conviction on the ground of newly discovered evidence, to wit, an
affidavit from his codefendant stating that defendant was not involved
in the crimes. County Court denied the motion without a hearing,
ruling that the affidavit did not constitute newly discovered
evidence. We affirm.

     It is well settled that on a motion to vacate a judgment of
conviction based on newly 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” (People v Madison, 106 AD3d 1490, 1492 [internal
quotation marks omitted]; see People v Salemi, 309 NY 208, 215-216,
cert denied 350 US 950). Here, it is not probable that defendant
                                 -2-                           642
                                                         KA 11-01705

would receive a more favorable verdict at a retrial if the codefendant
testified in accordance with his affidavit (see People v Jackson, 238
AD2d 877, 878, lv denied 90 NY2d 859). It is undisputed that
defendant was driving the codefendant when the codefendant shot the
victim, and no one else was in the car. Moreover, it is unclear
whether a jury would credit, upon a retrial, the codefendant’s
exculpatory testimony in light of the fact that the codefendant
already pleaded guilty to assault in the first degree, was the
individual who shot and injured the victim, did not provide the
exculpatory statement until years after the trial, and provided that
statement while serving his sentence at the same correctional facility
as defendant.

     Additionally, defendant failed to meet his burden of establishing
that such exculpatory evidence could not have been discovered before
trial by the exercise of due diligence (see Salemi, 309 NY at 216; see
also People v Grotto, 241 AD2d 785, 786-787, lv denied 90 NY2d 940).
According to the codefendant, he refused to testify on defendant’s
behalf because he was angry with defendant for getting him arrested,
and he was afraid of jeopardizing his plea deal and thus wanted to
assert his Fifth Amendment rights. Defendant, however, never
submitted an affidavit from his trial counsel affirming that counsel
attempted to speak with the codefendant and that the codefendant
refused to cooperate, nor did defendant explain his failure to do so
(see generally People v Ozuna, 7 NY3d 913, 915). Moreover, although
“the affidavit of a codefendant who had previously exercised his
[Fifth] Amendment right not to testify may constitute newly discovered
evidence” (People v Beach, 186 AD2d 935, 936), here the codefendant
never actually exercised his Fifth Amendment rights. In any event,
the codefendant’s assertion in his affidavit that he would have
exercised those rights due to his concerns regarding his plea deal is
of no moment inasmuch as he had already pleaded guilty and received
his sentence weeks before defendant was tried.

     Finally, “[i]n order to constitute newly discovered evidence,
such evidence must not merely impeach or contradict the former
evidence . . . The rule recognizes that recantation evidence is
inherently unreliable . . . and insufficient alone to warrant vacating
a judgment of conviction” (People v Thibodeau, 267 AD2d 952, 953, lv
denied 95 NY2d 805). During his plea colloquy, the codefendant stated
that he acted in concert with another man, and it is undisputed that
defendant was the only other man present during the crime. The
codefendant did not explain in his affidavit why he was recanting what
he initially stated during his plea colloquy, i.e., that defendant was
involved in the crime. In light of the above, the court properly
determined that the codefendant’s affidavit does not constitute newly
discovered evidence and therefore properly denied the CPL 440.10
motion without a hearing (see Jackson, 238 AD2d at 878-879).



Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
