Opinion
2013-07-5
The PEOPLE of the State of New York, Respondent, v. 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.
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.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND CARNI, JJ.
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 ( seeCPL 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 N.Y. 208, 215, 128 N.E.2d 377,cert. denied350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827). 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 make its final decision based upon the likely cumulative effect of the new evidence had it been presented at trial’ ” ( People v. Deacon, 96 A.D.3d 965, 967, 946 N.Y.S.2d 613,appeal dismissed20 N.Y.3d 1046, 961 N.Y.S.2d 374, 985 N.E.2d 139).
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 N.Y.2d 9, 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226;see People v. Ennis, 11 N.Y.3d 403, 412–413, 872 N.Y.S.2d 364, 900 N.E.2d 915,cert. denied––– U.S. ––––, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009];Deacon, 96 A.D.3d at 968, 946 N.Y.S.2d 613). “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 N.Y.3d at 412–413, 872 N.Y.S.2d 364, 900 N.E.2d 915).
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 A.D.3d at 968, 946 N.Y.S.2d 613, quoting People v. Settles, 46 N.Y.2d 154, 169–170, 412 N.Y.S.2d 874, 385 N.E.2d 612). 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 N.Y.3d at 412–413, 872 N.Y.S.2d 364, 900 N.E.2d 915). 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 N.Y.2d at 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226). 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 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 declarationto assure its trustworthiness and reliability” ( Brensic, 70 N.Y.2d at 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226).
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).