People v. Backus

• Decision Date: 19 June 2015
• Docket Number: 642 KA 14-02078
• Citation: 14 N.Y.S.3d 241,129 A.D.3d 1621,2015 N.Y. Slip Op. 05330
• Parties: The PEOPLE of the State of New York, Appellant, v. Cody BACKUS, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1621

14 N.Y.S.3d 241

2015 N.Y. Slip Op. 05330

The PEOPLE of the State of New York, Appellant

v.Cody BACKUS, Defendant–Respondent.

642 KA 14-02078

Supreme Court, Appellate Division, Fourth Department, New York.

June 19, 2015.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Appellant.

Felasco & Cuomo, Fulton (Lucille M. Rignanese of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and DeJOSEPH, JJ.

OpinionMEMORANDUM:

The People appeal from an order granting defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him upon a jury verdict, in 2008, of murder in the second degree (Penal Law § 125.25[3] ), burglary in the first degree (§ 140.30[2] ), and two counts of attempted robbery in the first degree (§§ 110.00, 160.15[1], [2] ), based on, inter alia, newly discovered evidence (see CPL 440.10[1][g] ). We previously affirmed the judgment of conviction (People v. Backus, 67 A.D.3d 1428, 890 N.Y.S.2d 743, lv. denied 13 N.Y.3d 936, 895 N.Y.S.2d 327, 922 N.E.2d 916 ). The evidence at trial included the testimony of a codefendant, who testified that he, defendant, and a third person planned to rob the victim, a Syracuse drug dealer. The codefendant testified that defendant entered the victim's apartment but left the entrance door unlocked and made a cell phone call to the codefendant, after which the codefendant and the third person entered the apartment and demanded drugs and money. The codefendant further testified that the victim and the third person struggled over a handgun, which discharged, causing the victim's death. The prosecution at trial introduced a statement that defendant made to the police, in which he admitted that he was present at the victim's apartment when two armed men burst into the apartment. Defendant's statement also indicated that he fled the scene prior to any shooting and did not see what happened thereafter. In addition, the prosecution presented the testimony of a woman who was present in the apartment when the perpetrators entered, who identified defendant as also being present, and the prosecution presented cell phone records establishing that defendant made several calls to a cell phone allegedly possessed by the codefendant. Prior to trial, the codefendant identified a woman as the driver of the getaway car. Although that information was not introduced at trial, defendant's attorney was notified that the codefendant had identified the woman as the driver, and that the woman declined to talk with the police. The codefendant pleaded guilty to a reduced charge with a promise of a shorter prison sentence, conditioned on his agreement to testify against defendant and the third person, who was acquitted after a separate trial.

In June 2012, Kenneth Jackson, a member of a street gang in Syracuse, pleaded guilty to unrelated charges in federal court and was required, in accordance with the plea agreement, to provide information concerning his other illegal activities, albeit with the agreement that he would not be charged with any crimes arising from those activities. Jackson eventually gave a statement to Syracuse police investigators, in which he averred that he and another gang member robbed the victim, not the codefendant and the acquitted third person. Jackson also averred, however, that defendant went with them, that defendant had left the door unlocked so that Jackson and the other gang member could enter, and that defendant called the gang members by cell phone and informed them that the door was unlocked. Jackson averred that defendant looked surprised when the second gang member produced a handgun inside the victim's apartment, and defendant left the apartment before the victim was shot. Jackson further averred that the second gang member's girlfriend drove defendant, Jackson, and the other gang member back to an apartment after the crime, where they all ingested the drugs taken during the robbery and planned their alibis for the evening.

The investigators informed defendant that Jackson admitted participating in the crime, and defendant moved to vacate the judgment on the grounds that, inter alia, the information Jackson provided was newly discovered evidence. Supreme Court held a hearing on the motion, at which Jackson's statement was introduced. In addition, the woman who the codefendant identified at trial as the getaway driver testified and denied driving anyone to or from the crime, but she also testified that she was never contacted by the police. The second woman, who was identified as the driver in Jackson's statement, testified at the hearing that she drove defendant, Jackson and the other gang member to and from the crime. She further testified that she heard a gunshot after seeing defendant leave the victim's apartment, but before the two gang members left the apartment. Before she testified, the court assured her that she could not be prosecuted for any crime based on her testimony. Defendant testified at the hearing that he and his family had been threatened by the second gang member to ensure defendant's silence, and that the second gang member accompanied defendant's mother when she visited defendant in prison.

At the conclusion of the hearing, the court concluded that, although defendant was aware of the evidence at the time of trial, the evidence was newly discovered because he reasonably feared that the two gang members would kill him or members of his family if he implicated them, and because Jackson and the second woman would have invoked their Fifth Amendment rights if called at trial. The court further concluded that, if such evidence had been received at trial, it would have created a reasonable probability that the verdict would have been more favorable to defendant. The court granted the motion and vacated defendant's judgment of conviction. The People appeal.

Pursuant to CPL 440.10(1)(g), a court may vacate a judgment of conviction on the ground that “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part 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; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.” “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 A.D.3d 1075, 1076, 968 N.Y.S.2d 786, lv. denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [internal quotation marks omitted]; see People v. Salemi, 309 N.Y. 208, 215–216, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 ). Defendant has the burden of establishing “by a preponderance of the evidence every fact essential to support the motion” (CPL 440.30[6] ). Furthermore, “[t]he 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 N.Y. at 215, 128 N.E.2d 377 ; see People v. White, 125 A.D.3d 1372, 1373, 3 N.Y.S.3d 528 ; People v. Pugh,

236 A.D.2d 810, 811, 653 N.Y.S.2d 994, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994 ).

Here, we agree with the People that the court abused its discretion in determining that defendant met his burden on the motion. First, the court erred in admitting Jackson's statement in evidence at the hearing, and, in any event, the statement would not be...