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

642
KA 14-02078
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

CODY BACKUS, DEFENDANT-RESPONDENT.


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

FELASCO & CUOMO, FULTON (LUCILLE M. RIGNANESE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), dated March 19, 2014. The order granted 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 reversed on the law, the motion is denied, and the
judgment of conviction is reinstated.

     Memorandum: The People appeal from an order granting defendant’s
motion pursuant to CPL 440.10 to vacate the judgment convicting him
upon a jury verdict, in 2008, of murder in the second degree (Penal
Law § 125.25 [3]), burglary in the first degree (§ 140.30 [2]), and
two counts of attempted robbery in the first degree (§§ 110.00, 160.15
[1], [2]), based on, inter alia, newly discovered evidence (see CPL
440.10 [1] [g]). We previously affirmed the judgment of conviction
(People v Backus, 67 AD3d 1428, lv denied 13 NY3d 936). The evidence
at trial included the testimony of a codefendant, who testified that
he, defendant, and a third person planned to rob the victim, a
Syracuse drug dealer. The codefendant testified that defendant
entered the victim’s apartment but left the entrance door unlocked and
made a cell phone call to the codefendant, after which the codefendant
and the third person entered the apartment and demanded drugs and
money. The codefendant further testified that the victim and the
third person struggled over a handgun, which discharged, causing the
victim’s death. The prosecution at trial introduced a statement that
defendant made to the police, in which he admitted that he was present
at the victim’s apartment when two armed men burst into the apartment.
Defendant’s statement also indicated that he fled the scene prior to
any shooting and did not see what happened thereafter. In addition,
the prosecution presented the testimony of a woman who was present in
the apartment when the perpetrators entered, who identified defendant
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as also being present, and the prosecution presented cell phone
records establishing that defendant made several calls to a cell phone
allegedly possessed by the codefendant. Prior to trial, the
codefendant identified a woman as the driver of the getaway car.
Although that information was not introduced at trial, defendant’s
attorney was notified that the codefendant had identified the woman as
the driver, and that the woman declined to talk with the police. The
codefendant pleaded guilty to a reduced charge with a promise of a
shorter prison sentence, conditioned on his agreement to testify
against defendant and the third person, who was acquitted after a
separate trial.

     In June 2012, Kenneth Jackson, a member of a street gang in
Syracuse, pleaded guilty to unrelated charges in federal court and was
required, in accordance with the plea agreement, to provide
information concerning his other illegal activities, albeit with the
agreement that he would not be charged with any crimes arising from
those activities. Jackson eventually gave a statement to Syracuse
police investigators, in which he averred that he and another gang
member robbed the victim, not the codefendant and the acquitted third
person. Jackson also averred, however, that defendant went with them,
that defendant had left the door unlocked so that Jackson and the
other gang member could enter, and that defendant called the gang
members by cell phone and informed them that the door was unlocked.
Jackson averred that defendant looked surprised when the second gang
member produced a handgun inside the victim’s apartment, and defendant
left the apartment before the victim was shot. Jackson further
averred that the second gang member’s girlfriend drove defendant,
Jackson, and the other gang member back to an apartment after the
crime, where they all ingested the drugs taken during the robbery and
planned their alibis for the evening.

     The investigators informed defendant that Jackson admitted
participating in the crime, and defendant moved to vacate the judgment
on the grounds that, inter alia, the information Jackson provided was
newly discovered evidence. Supreme Court held a hearing on the
motion, at which Jackson’s statement was introduced. In addition, the
woman who the codefendant identified at trial as the getaway driver
testified and denied driving anyone to or from the crime, but she also
testified that she was never contacted by the police. The second
woman, who was identified as the driver in Jackson’s statement,
testified at the hearing that she drove defendant, Jackson and the
other gang member to and from the crime. She further testified that
she heard a gunshot after seeing defendant leave the victim’s
apartment, but before the two gang members left the apartment. Before
she testified, the court assured her that she could not be prosecuted
for any crime based on her testimony. Defendant testified at the
hearing that he and his family had been threatened by the second gang
member to ensure defendant’s silence, and that the second gang member
accompanied defendant’s mother when she visited defendant in prison.

     At the conclusion of the hearing, the court concluded that,
although defendant was aware of the evidence at the time of trial, the
evidence was newly discovered because he reasonably feared that the
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                                                         KA 14-02078

two gang members would kill him or members of his family if he
implicated them, and because Jackson and the second woman would have
invoked their Fifth Amendment rights if called at trial. The court
further concluded that, if such evidence had been received at trial,
it would have created a reasonable probability that the verdict would
have been more favorable to defendant. The court granted the motion
and vacated defendant’s judgment of conviction. The People appeal.

     Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of
conviction on the ground that “[n]ew 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.” “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 Smith, 108 AD3d 1075, 1076, lv denied 21
NY3d 1077 [internal quotation marks omitted]; see People v Salemi, 309
NY 208, 215-216, cert denied 350 US 950). Defendant has the burden of
establishing “by a preponderance of the evidence every fact essential
to support the motion” (CPL 440.30 [6]). Furthermore, “[t]he 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” (Salemi, 309
NY at 215; see People v White, 125 AD3d 1372, 1373; People v Pugh, 236
AD2d 810, 811, lv denied 89 NY2d 1099).

     Here, we agree with the People that the court abused its
discretion in determining that defendant met his burden on the motion.
First, the court erred in admitting Jackson’s statement in evidence at
the hearing, and, in any event, the statement would not be admissible
at trial. This is vital because “ ‘[i]mplicit in th[e] ground for
vacating a judgment of conviction is that the newly discovered
evidence be admissible’ ” (People v Tankleff, 49 AD3d 160, 182; see
People v Mazyck, 118 AD3d 728, 730, lv denied 24 NY3d 1086). Here,
the court admitted the statement at the hearing as a declaration
against penal interest, but it is well settled that “[f]or a statement
against penal interest to be admissible the interest compromised must
be such as to ‘all but rule out’ motive to falsify, [and] the
declarant must be conscious of the consequences of his statement at
the time it is made . . . Those assurances of probative value, which
might in a proper case substitute for cross-examination, were not
present in this case” (People v Geoghegan, 51 NY2d 45, 49). Although
a less stringent standard applies where, as here, the declaration is
offered by defendant to exonerate himself rather than by the People,
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                                                         KA 14-02078

to inculpate him (see People v Stevens, 212 AD2d 746, 747, lv denied
85 NY2d 943), none of the requirements was met here. To the contrary,
the statement of the gang member was provided only after he was
assured that he would not be prosecuted for any information that he
provided, thus removing any indicia of reliability regarding that
information (see People v Morgan, 76 NY2d 493, 495).

     Next, we conclude that the court erred in determining that the
evidence upon which defendant relied was newly discovered. Even
assuming, arguendo, that Jackson’s statement was properly admitted at
the hearing, and further assuming, arguendo, that the information he
provided is material, noncumulative, and does not merely impeach or
contradict the record evidence, we conclude that the information was
known to defendant at the time of the trial (see People v Taylor, 246
AD2d 410, 411-412, lv denied 91 NY2d 978). We cannot agree with the
court that it was in effect “newly discovered” based on defendant’s
fear of physical harm to himself and his family. “A defendant who
chooses to withhold evidence should not be given a new trial ‘on the
basis of the evidence thus withheld’ ” (People v Moore, 147 AD2d 924,
924, lv denied 73 NY2d 1019; see People v Cain, 96 AD3d 1072, 1073-
1074, lv denied 19 NY3d 1101). Therefore, the evidence does not
satisfy the requirement that it was “discovered since the entry of a
judgment based upon a verdict of guilty after trial” (CPL 440.10 [1]
[g]; see Cain, 96 AD3d at 1073-1074; see also People v Singleton, 1
AD3d 1020, 1021, lv denied 1 NY3d 580).

     In addition, again assuming, arguendo, that all of the evidence
is admissible, we conclude that there is no probability that if such
evidence had been received at the trial the verdict would have been
more favorable to the defendant (see CPL 440.10 [1] [g]; see generally
People v Mooney [appeal No. 2], 162 AD2d 951, 952-953, lv denied 76
NY2d 942). The purportedly new evidence upon which defendant relies
establishes that he helped plan the robbery, provided material
assistance in the commission of the crime, acted in concert with the
perpetrators, and shared in the proceeds of the crime, thus providing
sufficient evidence to support a verdict of guilty as an accomplice to
the felony murder charge of which he was convicted (see People v Reed,
97 AD3d 1142, 1143, affd 22 NY3d 530, rearg denied 23 NY3d 1009;
People v Sanchez, 167 AD2d 489, 490-491, lv denied 77 NY2d 881).
“ ‘[W]hether one is the actual perpetrator of the offense or an
accomplice is, with respect to criminal liability for the offense,
irrelevant’ ” (People v Rivera, 84 NY2d 766, 771; see Cain, 96 AD3d at
1074).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
