People v. Callace

• Decision Date: 27 June 1991
• Citation: 151 Misc.2d 464,573 N.Y.S.2d 137
• Parties: The PEOPLE of the State of New York v. Leonard CALLACE, Defendant.
• Court: New York County Court

Page 137

573 N.Y.S.2d 137

151 Misc.2d 464

The PEOPLE of the State of New York v. Leonard CALLACE, Defendant.

Suffolk County Court.

June 27, 1991.

James M. Catterson, Jr., Dist. Atty. by Steve Hovaini, Asst. Dist. Atty., Suffolk County, Riverhead, for People.

Leonard Callace, pro se.

JOHN V. VAUGHN, Judge.

Defendant, pro se, has moved for (1) an order compelling the District Attorney to produce and permit DNA testing of physical evidence introduced at the defendant's trial and (2) for an order authorizing the Superintendent of the Clinton Correctional Facility to have the medical staff draw a sample of the defendant's blood and forward it to Lifecodes Corp. The People have opposed the application primarily on the ground that there is no authority for the relief requested.

The record establishes that on March 24, 1987 the defendant was convicted by a jury of 4 counts of sodomy 1st degree, 3 counts of sexual abuse 1st degree, unlawful imprisonment 1st degree and criminal possession of a weapon 4th degree. The conviction was affirmed (People v. Callace, 143 A.D.2d 1027, 533 N.Y.S.2d 745) and leave to appeal to the Court of Appeals was denied (73 N.Y.2d 889, 538 N.Y.S.2d 802, 535 N.E.2d 1342).

The identification evidence introduced at the trial consisted primarily of the testimony of the victim. This testimony included a description of a tattoo of a cross between the thumb and index finger of the defendant's hand as well as the fact that he smoked cigarettes from a flip top box. In addition it was stipulated that the male seminal fluid on the victim's pants was of a male type "A" blood group. This was the same blood group as the defendant. On the other hand there was testimony that the defendant's hair color and style did not match the description given by the victim. There was also evidence that the victim had not mentioned the existence of 4 small, soft, colored lesions on the defendant's penis.

The People are correct in their argument that there is no statutory authority for discovery in a criminal case after a judgment of conviction. The defendant acknowledges this lack of authority but argues that the Court has the inherent power to fashion the relief (People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318; [Coram Nobis for ineffective assistance of counsel on appeal].

The issue as to whether and to what extent a Court has "inherent power" in respect to proceedings before it has been and continues to be a vexing problem (see Kisloff on behalf of Wilson v. Covington, 73 N.Y.2d 445, 541 N.Y.S.2d 737, 539 N.E.2d 565). Although the Court has recognized the power in a number of cases (Matter of Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378; Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425) there are clearly limits to that power and the Court has not recognized its existence in a number of situations (People v. Moquin, 77 N.Y.2d 449, 452, 568 N.Y.S.2d 710, 570 N.E.2d 1059).

However we need not reach the issue of the courts' "Inherent power" since there is authority in the statute to vacate a judgment of conviction on the grounds of newly discovered evidence (C.P.L. 440.10(1)(g)). In order to set aside the judgment on this ground the newly discovered evidence (1) must be such as will probably, not merely possibly, change the result if a new trial is granted, (2) must have been discovered after the trial, (3) could not have been discovered before the trial even by the exercise of due diligence, (4) must be material, (5) must not be cumulative and (6) must not be merely impeaching or contradictory to the former evidence (People v. Clerkin, 144 A.D.2d 684, 535 N.Y.S.2d 26; 6 Zett, N.Y.Criminal Practice p 50.3(1)(g)). The People argue that the DNA evidence would not meet these criteria, particularly the requirement that the evidence not be merely contradicting or impeaching of former evidence.

The evidence sought for testing consists of semen and other secretions found on the victim's clothes. It is not newly discovered in the traditional sense since it was available at trial and, in fact, an analysis of the evidence was introduced. The fact that the blood grouping was the same type "A" as the defendant's was admitted into evidence despite its limited probative value (People v. Mountain, 66 N.Y.2d 197, 495 N.Y.S.2d 944, 486 N.E.2d 802). Caution should be exercised in considering evidence as "newly discovered" when its existence was previously known and in fact was introduced at trial. The reason offered for the classification of this evidence as newly discovered is the fact that the DNA analysis to be performed by Lifecodes Corp. is now generally accepted by the Courts in this State (see People v. Shi Fu Huang, 145 Misc.2d 513, 546 N.Y.S.2d 920; People v. Wesley, 140...