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

729
KA 11-00523
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RODNEY D. MCFARLAND, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARTIN P. MCCARTHY,
II, OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI 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 Supreme Court, Monroe County (David D. Egan, J.), entered January
19, 2011. The order denied the motion of defendant to vacate the
judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Monroe County, for a hearing pursuant to CPL 440.30 (5) in
accordance with the following Memorandum: We granted defendant leave
to appeal from the order denying his CPL article 440 motion to vacate
the judgment convicting him following a jury trial of, inter alia,
murder in the second degree (Penal Law § 125.25 [1]). Defendant
contends that he is entitled to vacatur of the judgment pursuant to
CPL 440.10 (1) (h) because defense counsel failed to prepare
adequately for trial and failed to move to suppress evidence obtained
from defendant’s cellular telephone. We reject that contention and
conclude that Supreme Court properly denied defendant’s motion to the
extent that the motion was based on CPL 440.10 (1) (h) without
conducting a hearing (see CPL 440.10 [2] [c]; 440.30 [2]).

     We conclude, however, that defendant’s motion may have merit to
the extent that it was based on CPL 440.10 (1) (g) (see generally
People v Salemi, 309 NY 208, 215, cert denied 350 US 950). That
section permits vacatur of a judgment of conviction on the ground that
new evidence has been discovered since the entry of a judgment, which
could not have been produced at trial with due diligence “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” (CPL 440.10 [1] [g]). “A motion to vacate a
judgment of conviction upon the ground of newly discovered evidence
rests within the discretion of the hearing court . . . The ‘court must
                                 -2-                           729
                                                         KA 11-00523

make its final decision based upon the likely cumulative effect of the
new evidence had it been presented at trial’ ” (People v Deacon, 96
AD3d 965, 967, appeal dismissed 20 NY3d 1046).

     Several years after defendant’s conviction and exhaustion of his
direct appeal, defendant’s appellate counsel received in the mail an
affidavit from a person to whom a third party had allegedly confessed
to shooting and killing the victim. The author of the affidavit
averred that, on two occasions, he had informed investigators about
the third party’s statements. Contrary to the People’s contention, we
conclude that there are questions of fact whether the new evidence,
i.e., the statements of the nontestifying third party, would have been
admissible at trial as declarations against penal interest (see
generally CPL 440.10 [1] [g]).

     “[B]efore statements of a nontestifying third party are
admissible [at trial] as a declaration against penal interest, the
proponent must satisfy the court that four prerequisites are met: (1)
the declarant must be unavailable to testify by reason of death,
absence from the jurisdiction, or refusal to testify on constitutional
grounds; (2) the declarant must be aware at the time of its making
that the statement was contrary to his penal interest; (3) the
declarant must have competent knowledge of the underlying facts; and
(4) there must be sufficient competent evidence independent of the
declaration to assure its trustworthiness and reliability” (People v
Brensic, 70 NY2d 9, 15; see People v Ennis, 11 NY3d 403, 412-413, cert
denied ___ US ___ [May 18, 2009]; Deacon, 96 AD3d at 968). “Even if
th[o]se criteria are met, the statement cannot be received in evidence
[at trial] unless it is also supported by independent proof indicating
that it is trustworthy and reliable” (Ennis, 11 NY3d at 412-413).

     We agree with defendant that where, as here, the declarations
exculpate the defendant, they “are subject to a more lenient standard,
and will be found ‘sufficient if [the supportive evidence]
establish[es] a reasonable possibility that the statement might be
true’ ” (Deacon, 96 AD3d at 968, quoting People v Settles, 46 NY2d
154, 169-170). That is because “ ‘[d]epriving a defendant of the
opportunity to offer into evidence [at trial] another person’s
admission to the crime with which he or she has been charged, even
though that admission may . . . be offered [only] as a hearsay
statement, may deny a defendant his or her fundamental right to
present a defense’ ” (id.).

     Although the People contend that there is no evidence that the
third party is unavailable, we conclude that, inasmuch as the
statements attributed to the third party implicate him in a murder,
there is a likelihood that, if called to testify at a trial, he would
assert his Fifth Amendment privilege against self-incrimination and
thus become unavailable (see Ennis, 11 NY3d at 412-413). We reject
the People’s contention that there is no competent evidence
independent of the declaration to assure its trustworthiness and
reliability (see generally Brensic, 70 NY2d at 15). The evidence at
trial and in the record on this appeal establishes a reasonable
possibility that the nontestifying third party had a motive to murder
                                 -3-                           729
                                                         KA 11-00523

the victim. Defendant and the third party went to a residence where
the third party had a confrontation with the victim. Defendant, the
third party and the victim then went onto the porch of the residence.
The People’s main witness at trial testified that, in her quick glance
out of a window, she saw defendant holding an unknown object in his
hand and tussling with the victim, but other witnesses testified that
they heard the victim pleading with the third party by name seconds
before they heard a gunshot.

     Inasmuch as the People submitted an affidavit from an
investigator contesting the assertion that investigators were informed
of the statements made by the nontestifying third party, we conclude
that there are issues of fact concerning the reliability of the newly
discovered evidence. We therefore remit the matter to Supreme Court
to conduct a hearing to determine whether the third party is
unavailable and, if so, whether there is “competent evidence
independent of the declaration to assure its trustworthiness and
reliability” (Brensic, 70 NY2d at 15).




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