People v. Cole

Citation765 N.Y.S.2d 477,1 Misc.3d 531
CourtUnited States State Supreme Court (New York)
Decision Date12 September 2003
PartiesTHE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>VALANCE COLE, Defendant.

1 Misc.3d 531
765 N.Y.S.2d 477

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
VALANCE COLE, Defendant.

September 12, 2003.


[1 Misc.3d 532]

William Robedee for defendant.

Charles J. Hynes, District Attorney (Anna-Sigga Nicolazzi of counsel), for plaintiff.

OPINION OF THE COURT

JOHN M. LEVENTHAL, J.

In American jurisprudence, an acquittal of criminal charges does not signify that the acquitee did not actually commit the crime (United States v Watts, 519 US 148, 155 [1997]; People v Horne, 97 NY2d 404, 413 [2002]). A "not guilty" verdict indicates that the government has failed to prove beyond a reasonable doubt that the defendant committed one of the elements of a crime (id.; see also People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 203 [1983]). Conversely, a "guilty" verdict only indicates that the government has proven beyond a reasonable doubt that the defendant committed each and every element of the crime, and not that the defendant actually committed the crime (see People v Goetz, 73 NY2d 751, 752 [1988]). The issue in this case is what is a court's role when a claim is made in a motion to vacate a judgment that the defendant did not commit the crime, although the defendant's conviction was constitutionally and properly obtained (free-standing claim of innocence). Is the court the proper branch of government in which to raise a claim of factual innocence? If the court is the appropriate forum, what is the legal basis for the innocence claim? What criteria should a court use in determining, postjudgment, the actual innocence of a defendant? If the court finds that a convicted person is in fact innocent, what is the appropriate remedy?

In deciding this motion to vacate the judgment, the court has considered the moving papers and all responsive papers, the trial record, the hearing testimony, the oral arguments, defendant's document dated March 3, 2003 entitled "Defendant's Summation" and the People's posthearing memorandum of law.

[1 Misc.3d 533]

Background

On August 4, 1985 at approximately 1:00 P.M. near the corner of Fulton Street and Spencer Place, Brooklyn, New York, a man was shot. The police investigated the shooting and were told by various witnesses, including a Mr. Fleming, the name of the shooter. Mr. Fleming chose a photograph of a person who was incarcerated at the time of the shooting. Other witnesses identified other persons whom the investigation ruled out.

On February 1, 1986, one Jeffrey Campbell,[1] while in jail on a pending unrelated case, named the defendant as the shooter. Subsequently, another eyewitness identified the defendant at a photographic identification procedure and a lineup.

On February 27, 1986, the instant indictment was filed charging the defendant with murder in the second degree and related charges. Prior to the filing of the indictment, both Mr. Fleming and the defendant testified during the grand jury presentation that the defendant was not the shooter.

On March 11, 1986, the defendant was arraigned and pleaded not guilty.

On March 17, 1987, a jury trial commenced. The People presented the testimony of Mr. Campbell and another eyewitness. Both of these witnesses identified the defendant as the shooter. The defendant presented a different eyewitness who knew the defendant and testified that the defendant was not the shooter. The defendant also called an alibi witness to testify that the defendant was at a location other than the scene of the crime at the time of the shooting. Neither Mr. Fleming nor the defendant testified at trial.

On March 23, 1987, the jury convicted the defendant of manslaughter in the first degree and related charges.

On August 7, 1987, the defendant was sentenced. His sentence was to run consecutive to his Manhattan 6 years to life sentence.[2]

By order dated September 12, 2002 (NYLJ, Sept. 20, 2002, at 20, col 4), the court directed a hearing regarding the newly discovered evidence claim raised in defendant's papers. The

[1 Misc.3d 534]

court also directed that the hearing include possible Brady violations and a free-standing claim of innocence.[3]

At the hearing the defendant called four alleged eyewitnesses who testified that they saw the shooting and that the defendant was not the shooter. All four alleged eyewitnesses identified a person by the name of "Denzel" as the shooter. All four of the eyewitnesses have extensive criminal records. The defendant also presented an audiotape and a videotape of the recantation of Jeffrey Campbell.[4]

CPL 440.10

Except where authorized by law, the "adjudicatory power of the criminal court end[s] with the imposition of a sentence" (People v Stevens, 91 NY2d 270, 277 [1998]). Thus, the power of a court to set aside a verdict is "created and measured by the statute" (People v Schmidt, 216 NY 324, 328 [1915]; see also People v Jackson, 78 NY2d 638, 647 [1991]). A lower court has no inherent power to set aside a guilty verdict (People v Carter, 63 NY2d 530, 537-538 [1984]; People ex rel. Jerome v Court of General Sessions, 185 NY 504, 506-507 [1906]; see also People v Rao, 271 NY 98, 100-101 [1936]), but is limited to those grounds enumerated by statute and their statutory criteria (People v Reyati, 254 AD2d 199, 200 [1998]; People v Forbes, 191 Misc 2d 573, 576 [2002]; see also Jackson, 78 NY2d at 647; Schmidt, 216 NY 328; People v Salemi, 309 NY 208, 215 [1955]).[5] There exists no authority to vacate a judgment in the interest of justice or on equity grounds (People v Forbes, 191 Misc 2d at 576 [see cases cited therein]; see People v Hawkins, 99 NY2d 592, 593 [2003]).

Newly Discovered Evidence

The power to grant a new trial on the ground of newly discovered evidence is purely statutory (Salemi, 309 NY at 215; People v Pugh, 236 AD2d 810, 811 [1997]; People v Latella, 112

[1 Misc.3d 535]

AD2d 321, 322 [1985]). This power cannot be exercised unless all the requirements of the statute have been met (id.; People v Taylor, 246 AD2d 410, 411 [1998]; People v Balan, 107 AD2d 811, 815 [1985]). Whether the criteria have been met rests in the sound discretion of the court (id.). This discretion has been described as "unlimited" (People v Baxley, 84 NY2d 208, 212 [1994]; People v Crimmins, 38 NY2d 407, 415 [1975]).

The six Salemi (309 NY at 216) requirements for all newly discovered evidence claims are:

"1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence."

The "it" refers to the newly discovered evidence. The newly discovered evidence must be evidence admissible at trial (People v Boyette, 201 AD2d 490, 491 [1994]; People v Dabbs, 154 Misc 2d 671, 674 [1991]; see also People v Fields, 66 NY2d 876, 877 [1985]).

In this case, the audiotape and videotape of Mr. Campbell's alleged recantation and the statement by Mr. Fleming do not constitute newly discovered evidence.

The court finds that the defendant has failed to establish by a preponderance of the evidence that the uncalled eyewitnesses could not have been discovered prior to trial with due diligence.[6] In this regard, the court notes that defendant was aware that other eyewitnesses had selected other persons as the perpetrator.

[1 Misc.3d 536]

The motion as it relates to newly discovered evidence is denied.

Brady

The State has a duty to disclose exculpatory evidence in its possession which is material to the guilt...

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1 books & journal articles
  • Protecting the innocent in New York: moving beyond changing only their names.
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    • Albany Law Review Vol. 73 No. 4, June 2010
    • June 22, 2010
    ...innocence is a ground for relief under section 440.10(1)01). Montoya v. Ulibarri, 163 P.3d 476, 482 (N.M. 2007) (citing People v. Cole, 765 N.Y.S.2d 477, 484 (Sup. Ct. 2003)); see also People v. Bermudez, No. 8759/91, 2009 WL 3823270, at *22 (Sup. Ct. Nov. 29, 2009) (agreeing with the decis......

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