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

915
KA 15-02068
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

RENEE SUSAN BAILEY, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY WOLFORD OF
COUNSEL), FOR APPELLANT.

NEW YORK LAW SCHOOL LEGAL SERVICES, NEW YORK CITY (ADELE BERNHARD OF
COUNSEL), AND KEITH A. FINDLEY, WISCONSIN INNOCENCE PROJECT, MADISON,
WISCONSIN, FOR DEFENDANT-RESPONDENT.

DAVID POLK & WARDWELL LLP, NEW YORK CITY (SHARON KATZ OF COUNSEL, FOR
THE INNOCENCE NETWORK, AMICUS CURIAE.


     Appeal from an order of the Monroe County Court (James J.
Piampiano, J.), dated December 16, 2014. The order granted the motion
of defendant pursuant to CPL 440.10 to vacate the judgment convicting
her, following a jury trial in 2002, of murder in the second degree
based on newly discovered evidence and granted her a new trial.

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

     Memorandum: The People appeal from an order granting defendant’s
motion pursuant to CPL 440.10 to vacate the judgment convicting her,
following a jury trial in 2002, of murder in the second degree (Penal
Law § 125.25 [4]) based on newly discovered evidence (see CPL 440.10
[1] [g]), and granting her a new trial. The evidence at trial
included medical testimony from three witnesses that the injuries
sustained by the toddler, who was in the custody of defendant, a
daycare provider, could have been caused only by shaken baby syndrome
(SBS), also known as shaken baby impact syndrome (SBIS), and could not
have been caused by a short-distance fall from a chair that was 18
inches in height, as defendant contended. On her direct appeal, we
rejected defendant’s challenges to the verdict, but we reduced the
sentence as a matter of discretion in the interest of justice (People
v Bailey, 8 AD3d 1024, lv denied 3 NY3d 670).

     In 2013, defendant moved to vacate the judgment of conviction
contending, inter alia, that advances in medicine and science had
established that the injuries sustained by the toddler could have been
caused by a short-distance fall and that newly discovered evidence
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                                                         KA 15-02068

related to another child’s alleged observation of the incident
established that the toddler had, in fact, jumped or fallen from the
chair. Although County Court rejected other grounds for the CPL
440.10 motion, the court granted a hearing on the allegations of newly
discovered evidence. Following that hearing, the court granted the
motion, vacated the judgment of conviction and granted defendant a new
trial (People v Bailey, 47 Misc 3d 355). We now 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 . . . Defendant has the burden of establishing by a
preponderance of the evidence every fact essential to support the
motion” (People v Backus, 129 AD3d 1621, 1623, lv denied 27 NY3d 991
[internal quotation marks omitted]; see People v Salemi, 309 NY 208,
215-216, cert denied 350 US 950; People v White, 125 AD3d 1372, 1373).
The determination of such a motion “rests within the sound discretion
of the court” (Salemi, 309 NY at 215; see Backus, 129 AD3d at 1623-
1624; White, 125 AD3d at 1373).

     The People do not dispute that the allegedly new evidence is
material, is not cumulative and does not merely impeach or contradict
the record evidence. Rather, the People contend that the evidence
submitted at the hearing does not constitute newly discovered evidence
and would not change the result if a new trial were granted. We
reject the People’s contentions.

     In general, advancements in science and/or medicine may
constitute newly discovered evidence (see People v Chase, 8 Misc 3d
1016[A], 2005 NY Slip Op 51125[U], *8; People v Callace, 151 Misc 2d
464, 466), and we conclude that defendant established, by a
preponderance of the evidence (see CPL 440.30 [6]), that “a
significant and legitimate debate in the medical community has
developed in the past ten years over whether infants [and toddlers]
can be fatally injured through shaking alone, . . . and whether other
causes [such as short-distance falls] may mimic the symptoms
traditionally viewed as indicating shaken baby or shaken impact
syndrome” (Wisconsin v Edmunds, 308 Wis 2d 374, 385-386, 746 NW2d 590,
596, review denied 308 Wis 2d 612, 749 NW2d 663; cf. People v
Caldavado, 26 NY3d 1034, 1037; see generally Cavazos v Smith, ___ US
___, ___, 132 S Ct 2, 10 [Ginsburg, J., dissenting]).

     We further conclude that defendant established, by a
preponderance of the evidence (see CPL 440.30 [6]), that the newly
discovered evidence would probably change the result if a new trial
were held today. “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 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
                                 -3-                           915
                                                         KA 15-02068

dismissed 20 NY3d 1046; see People v McFarland, 108 AD3d 1121, 1121,
lv denied 24 NY3d 1220). Here, the cumulative effect of the research
and findings on retinal hemorrhages, subdural hematomas or hemorrhages
and cerebral edemas as presented in SBS/SBIS cases and short-distance
fall cases supports the court’s ultimate decision that, had this
evidence been presented at trial, the verdict would probably have been
different (cf. Caldavado, 26 NY3d at 1037).

     We note that the court did not address defendant’s contentions
concerning evidence related to the child who had allegedly witnessed
the incident because those contentions were moot, and we likewise
decline to address those contentions on that ground.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
