People v. Bryant

• Decision Date: 09 May 2014
• Citation: 117 A.D.3d 1586,986 N.Y.S.2d 287,2014 N.Y. Slip Op. 03419
• Parties: The PEOPLE of the State of New York, Respondent, v. Malcolm BRYANT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1586
986 N.Y.S.2d 287
2014 N.Y. Slip Op. 03419

The PEOPLE of the State of New York, Respondent,
v.
Malcolm BRYANT, Defendant–Appellant.

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

May 9, 2014.

Edelstein & Grossman, New York City (Jonathan I. Edelstein of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO AND WHALEN, JJ.

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

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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 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 A.D.3d 1490, 1492, 964 N.Y.S.2d 820;see People v. Smith, 108 A.D.3d 1075, 1076, 968 N.Y.S.2d 786,lv. denied21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151;see generally People v. Salemi, 309 N.Y. 208, 215–216, 128 N.E.2d 377,cert. denied350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827).

We conclude that defendant met his burden of establishing all six factors by a preponderance of the evidence ( seeCPL 440.30[6]; People v. Tankleff, 49 A.D.3d 160, 179–180, 848 N.Y.S.2d 286). 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 A.D.3d 767, 768–769, 974 N.Y.S.2d 578;People v. Bellamy, 84 A.D.3d 1260, 1261–1262, 923 N.Y.S.2d 681,lv. denied17 N.Y.3d 813, 929 N.Y.S.2d 802, 954 N.E.2d 93). Contrary to the People's contention,

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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 A.D.3d at 1493, 964 N.Y.S.2d 820;People v. Lackey, 48 A.D.3d 982, 984, 853 N.Y.S.2d 668,lv. denied10 N.Y.3d 936, 862 N.Y.S.2d 342, 892 N.E.2d 408;cf. People v. Welch, 281 A.D.2d 906, 906, 723 N.Y.S.2d 292,lv. denied97 N.Y.2d 734, 740 N.Y.S.2d 708, 767 N.E.2d 165). 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 defendant” ( People v. Malik, 81 A.D.3d 981, 982, 917 N.Y.S.2d 648;see Tankleff, 49 A.D.3d at 182, 848 N.Y.S.2d 286). 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...