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

1269
KA 14-00932
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL WHITE, DEFENDANT-RESPONDENT.


FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR APPELLANT.

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Erie County Court (Sheila A.
DiTullio, J.), dated March 17, 2014. The order granted the motion of
defendant to vacate a judgment of conviction and ordered 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 (1) (g) to vacate the judgment
convicting him, following a nonjury trial in 2006, of rape in the
first degree (Penal Law § 130.35 [1]) and sexual abuse in the first
degree (§ 130.65 [1]) based on newly discovered evidence. At trial,
the People presented evidence that, when the complainant was examined
at the hospital shortly after she was allegedly raped, a quantity of
semen was found in her vagina. Although it could not be determined at
the time whether defendant was the source of the semen, the prosecutor
argued during her summation that the presence of semen corroborated
the complainant’s testimony that defendant raped her. County Court
found defendant guilty as charged, and we affirmed (People v White, 43
AD3d 1407, lv denied 9 NY3d 1010).

     In April 2013, after defendant was released from prison, more
sophisticated DNA testing showed that the semen from the complainant’s
vagina did not come from defendant; instead, it came from the
complainant’s then-boyfriend. Defendant thereafter moved to vacate
the judgment of conviction pursuant to CPL 440.10 (1) (g), contending
that the DNA test results constitute newly discovered evidence. We
note that CPL 440.10 (1) (g-1), concerning forensic DNA testing
performed after the entry of judgment, had not yet been enacted (see
generally People v Hicks, 114 AD3d 599, 601). The People opposed the
motion solely on the ground that the DNA evidence, if admitted at a
retrial, would probably not lead to a different result. According to
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                                                         KA 14-00932

the People, the absence of defendant’s DNA in the complainant’s vagina
did not exonerate him because he may have worn a condom or he may not
have ejaculated when he raped the complainant.

     In granting defendant’s motion, the court stated, “[g]iven the
exculpatory nature of the newly-discovered evidence, it is the opinion
of this court, which sat as the trier of fact, that the cumulative
effect of such evidence would probably change the result if a new
trial were granted.” The court noted in its decision that, during her
summation, “the prosecutor successfully argued that the presence of
(unidentified) male DNA in the vaginal swabs of complainant’s rape kit
corroborated her testimony and helped establish defendant’s guilt,
based on the assumption that where male DNA is found in the vaginal
swabs of a woman who had not bathed between the time of the alleged
rape and the examination, the source of that male DNA is that of the
rapist” (emphasis added). 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” (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). “The 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 Pugh, 236 AD2d 810, 811, lv denied 89 NY2d 1099).

     Here, the People contend that the court erred in granting
defendant’s motion because the DNA evidence will probably not change
the result at a new trial. We reject that contention. The only
evidence against defendant at trial was the testimony of the
complainant and a lab report showing that semen was found in her
vagina shortly after she reported the alleged rape. The complainant’s
sister and mother both testified for the defense, and there was
evidence that defendant was not physically capable of having committed
the crime of rape. Moreover, as noted, the prosecutor argued during
her summation that the presence of semen in the complainant’s vagina
corroborated her testimony that defendant raped her, and the court
accepted that argument. We now know, based on the more sophisticated
DNA testing not previously available, that the presence of semen in
the complainant’s vagina does not in fact corroborate her testimony.
Although the People assert that the absence of defendant’s semen in
the complainant’s vagina is not probative because he may have worn a
condom or not ejaculated, that assertion is based on sheer speculation
inasmuch as the complainant did not testify at trial that defendant
wore a condom or failed to ejaculate.

     Under the circumstances, and considering that the case against
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                                                         KA 14-00932

defendant rested solely on the lab report and the complainant’s
testimony, which was sharply challenged at trial, we conclude that the
court did not abuse its discretion in determining that the newly
discovered DNA evidence will probably change the result if a new trial
is granted (see Hicks, 114 AD3d at 602-603).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
