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

543
KA 12-01433
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MALCOLM BRYANT, DEFENDANT-APPELLANT.


EDELSTEIN & GROSSMAN, NEW YORK CITY (JONATHAN I. EDELSTEIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER 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 (Daniel J. Doyle, J.), dated June 26,
2012. 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 reversed
on the law, the motion is granted, the judgment is vacated and a new
trial is granted in accordance with the following Memorandum: On
appeal from an order denying his CPL 440.10 motion following a
hearing, defendant contends that Supreme Court erred in denying that
motion. We agree. Defendant was convicted following a jury trial of
assault in the first degree (Penal Law § 120.10 [1]) and two counts of
criminal possession of a weapon in the second degree (§ 265.03 [1]
[b]; [3]) related to the shooting of the victim. Defendant thereafter
moved to vacate the judgment on the grounds of, inter alia, newly
discovered evidence, ineffective assistance of counsel and actual
innocence, seeking either a new trial or dismissal of the indictment.
We conclude that defendant is entitled to a new trial on the ground of
newly discovered evidence, and we therefore reverse the order and
grant the motion to the extent that it is based on newly discovered
evidence.

     At trial, the only witness to identify defendant as the shooter
was the victim. Immediately after the shooting, however, the victim
informed the police officers investigating the shooting that, because
he wore glasses, he was unable to identify the shooter. Defendant,
who lived in the area of the shooting, presented a neighbor as an
alibi witness. That neighbor testified that he had seen defendant
inside a bar immediately before the neighbor left the bar. Upon his
arrival at his residence, the neighbor observed the victim and drove
him to the hospital. Because the neighbor was admittedly intoxicated
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                                                         KA 12-01433

on the night of the shooting, there was some question whether he was
mistaken about the timing of events. Following 13 hours of
deliberation and an Allen charge, the jury convicted defendant.

     In support of his CPL 440.10 motion, defendant submitted the
affidavit of a neighbor who observed the shooting (hereafter, first
witness). She averred that she observed a person, whom she
identified, shoot the victim, and that person was not defendant. She
further averred that defendant, whom she knew from the neighborhood,
was not present at the scene of the crime. Defendant also submitted
an affidavit from another neighbor who arrived home shortly before the
shooting and observed several men on the street arguing (hereafter,
second witness). The second witness also knew defendant from the
neighborhood, and she averred that he was not among the men arguing on
the street. Although the second witness did not actually observe the
shooting, she went to her window immediately after hearing the
gunshots and observed two men, neither of whom was defendant, leaving
the scene. The first witness identified the shooter by a street name,
and the second witness identified that same person as being one of the
men arguing with the victim and then leaving the scene immediately
after the shooting. Both the first witness and second witness
testified at the hearing on the motion, and their testimony reiterated
the information contained in their sworn affidavits.

     It is well settled that, in order to establish entitlement to a
new trial on the ground of newly discovered evidence, “a defendant
must prove 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; see People v
Smith, 108 AD3d 1075, 1076, lv denied 21 NY3d 1077; see generally
People v Salemi, 309 NY 208, 215-216, cert denied 350 US 950).

     We conclude that defendant met his burden of establishing all six
factors by a preponderance of the evidence (see CPL 440.30 [6]; People
v Tankleff, 49 AD3d 160, 179-180). Although the second witness gave
the police a statement on the night of the incident, there is no
dispute that the information obtained from the first witness was in
fact discovered after trial, that it was material to the case and that
it was not cumulative of other evidence (see e.g. People v Singh, 111
AD3d 767, 768-769; People v Bellamy, 84 AD3d 1260, 1261-1262, lv
denied 17 NY3d 813). Contrary to the People’s contention, the
information from the first witness was not merely impeaching evidence;
it addressed directly the issue of defendant’s guilt or innocence (see
e.g. Madison, 106 AD3d at 1493; People v Lackey, 48 AD3d 982, 984, lv
denied 10 NY3d 936; cf. People v Welch, 281 AD2d 906, 906, lv
denied 97 NY2d 734). We further conclude that, when the testimony
from the first witness is considered in light of the hearing testimony
from the second witness and all of the evidence admitted at trial,
“there is a reasonable probability that had such evidence been
received at trial, the verdict would have been more favorable to the
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                                                         KA 12-01433

defendant” (People v Malik, 81 AD3d 981, 982; see Tankleff, 49 AD3d at
182). The jury deliberated for over 13 hours and, at one point, was
deadlocked. The hearing testimony of the two witnesses corroborates
each other as well as the trial testimony of defendant’s alibi
witness, i.e., that defendant was not present at the scene immediately
before or immediately after the shooting. Had evidence from the first
witness and the second witness been introduced at trial, the
prosecution may not have been able to discredit the trial testimony of
the alibi witness as being mistaken relative to the timing of events.

     In our view, the one factor that warrants a more extended
analysis is whether defendant established that the information
obtained from the two witnesses could not have been discovered with
due diligence before trial. “ ‘[T]he due diligence requirement is
measured against the defendant’s available resources and the
practicalities of the particular situation’ ” (Tankleff, 49 AD3d at
180). Here, the police reports submitted by defendant in support of
his motion established that police officers canvassed the neighborhood
shortly after the shooting. They went to 14 nearby residences and
were not able to find anyone with any relevant information. While the
second witness gave a statement to the police on the night of the
incident, none of the police reports mentioned the name of the first
witness. Inasmuch as “[t]he primary burden of investigating a crime
is on the People through their agency, the police department” (People
v Hildenbrandt, 125 AD2d 819, 821, lv denied 69 NY2d 881), we conclude
that it was not unreasonable for defense counsel, in light of “the
limited resources generally available to the defense” (id.), to
conclude that a further canvass of the neighborhood would not yield
any new and relevant information. Here, as in Hildenbrandt, “[t]he
existence of the [first] witness was not uncovered by the police[,]
and there is nothing in the record to indicate that the failure to
discover the witness was unreasonable. Thus, it can hardly be said
that defendant should be charged with a lack of due diligence in
finding the witness” (id. at 821-822). Although the information
obtained from the second witness was available before trial and thus
does not constitute newly discovered evidence, the information
obtained from the first witness was not. That evidence thus meets all
of the requisite factors.

     While we agree with our dissenting colleague that there are
issues concerning the credibility of the first witness and that issues
of credibility are best determined by the hearing court (see People v
Britton, 49 AD3d 893, 894, lv denied 10 NY3d 956), we conclude that
the testimony of the first witness, when combined with the information
obtained from the second witness and the trial testimony of
defendant’s alibi witness, would probably change the result if a new
trial were granted. As noted above, the identification evidence
against defendant was weak, and even the victim initially told the
police that he was unable to identify his attacker. Moreover, during
the lengthy deliberations, the jury required an Allen charge, which is
given only when a jury is deadlocked (see People v Abston, 229 AD2d
970, 971, lv denied 88 NY2d 1066; see generally Allen v United States,
164 US 492, 501-502). Under the unique circumstances of this case,
and given the fact that the first witness, although seemingly
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                                                         KA 12-01433

reluctant, in fact agreed to testify against the person she identified
as the shooter, we conclude that the court erred in denying
defendant’s motion.

     We reject defendant’s contention, however, that he is entitled to
dismissal of the indictment on the ground of actual innocence, and we
instead conclude that he is entitled to a new trial. Even assuming,
arguendo, that a claim of actual innocence is a viable ground for a
CPL 440.10 motion, we conclude that defendant failed to establish by
clear and convincing evidence that he is actually innocent of the
crimes (see generally People v Hamilton, 115 AD3d 12, 26).

     In light of our determination, we see no need to address
defendant’s remaining contentions.

     All concur except LINDLEY, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent. Although I agree
with the majority that Supreme Court properly rejected defendant’s
claims of actual innocence and ineffective assistance of counsel, I do
not agree that defendant is entitled to a new trial based on newly
discovered evidence (see CPL 440.10 [1] [g]). According to defendant,
the newly discovered evidence is information that he obtained from a
witness who submitted an affidavit in which she averred that she saw
someone other than defendant commit the shooting (hereafter, first
witness). Based on that affidavit, among other evidence, the court
granted defendant a hearing, at which the first witness testified
consistently with her affidavit.

     If the first witness’s testimony is accepted as true, then I
would agree that defendant would be entitled to a new trial, inasmuch
as defendant established that he could not have discovered that
witness with due diligence before trial, and the proffered testimony,
if believed by the jury, would likely have changed the outcome at the
trial (see generally People v Salemi, 309 NY 208, 215-216, cert denied
350 US 950; People v Madison, 106 AD3d 1490, 1492). The hearing court
specifically found, however, that the first witness’s testimony was
not credible. In the context of a CPL 440.10 motion, the credibility
determinations of the hearing court, “with its particular advantages
of having seen and heard the witnesses,” are entitled to “great
deference on appeal” (People v Britton, 49 AD3d 893, 894, lv denied 10
NY3d 956; see People v Jacobs, 65 AD3d 594, 595, lv denied 13 NY3d
836), and they should not be disturbed “unless clearly erroneous”
(People v Jamison, 188 AD2d 551, 551, lv denied 81 NY2d 841; see
People v Prochilo, 41 NY2d 759, 761). Based on my review of the
record, I see no basis for us to disturb the hearing court’s
credibility determinations (see People v Betsch, 4 AD3d 818, 819, lv
denied 2 NY3d 796, reconsideration denied 3 NY3d 657; People v
Wallace, 270 AD2d 823, 824, lv denied 95 NY2d 806).

     In my view, the court had ample reasons for not believing the
first witness, who, despite her purported knowledge of the identity of
the shooter, did not come forward until more than a year after
defendant had been convicted. I note that, when initially asked at
the hearing whether she knows another female neighbor who observed the
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                                                         KA 12-01433

scene after the shooting and who also submitted an affidavit in
support of defendant’s motion (hereafter, second witness), the first
witness answered, “No, I do not.” Upon further questioning, the first
witness acknowledged that she knows the second witness but only by her
street name. The second witness testified, however, that she spoke to
the first witness “[a]lmost every day” when they lived on the same
street and, since moving to another apartment, she spoke to the first
witness on the telephone “once every other week.” In fact, shortly
before the hearing, the second witness telephoned the first witness
and, during that conversation, the second witness asked the first
witness about her children and invited them to a birthday party. It
thus strains credulity to believe that the first witness does not know
the name of the second witness. In addition, the first witness
refused to discuss the matter with an investigator from the District
Attorney’s office prior to the hearing, and she appeared reluctant to
testify before the grand jury against the person she claimed to have
seen commit the shooting. She did not even want to disclose who had
brought her to the courthouse to testify at the hearing.

     Where, as here, a defendant seeks a new trial based on newly
discovered evidence in the form of testimony from an eyewitness, the
defendant is not entitled to relief unless the hearing court believes
that testimony (see People v Watson, 152 AD2d 954, 955, lv denied 74
NY2d 900). The hearing court, in denying defendant’s motion, gave
specific and legitimate reasons for not believing the first witness’s
testimony, and it cannot be said that the court was “clearly
erroneous” in that regard (People v Wilson, 38 AD3d 1326, lv denied 9
NY3d 853). I would thus affirm the court’s denial of defendant’s CPL
440.10 motion.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
