People v. Huggins

• Decision Date: 25 May 1989
• Parties: The PEOPLE of the State of New York v. Samuel HUGGINS, Defendant.
• Court: New York Supreme Court

Page 1016

541 N.Y.S.2d 1016

144 Misc.2d 49

The PEOPLE of the State of New York v. Samuel HUGGINS, Defendant.

Supreme Court, New York County,

IAS Part 82.

May 25, 1989.

Robert M. Morgenthau, Dist. Atty. (Asst. Dist. Atty. Debra Hickey, of counsel), New York City, for the People.

Caesar Cirigliano (Abigail Everett, of counsel), The Legal Aid Soc., New York City, for defendant.

ALFRED H. KLEIMAN, Justice:

On May 3, 1988, pursuant to CPL 440.10, defendant Samuel Huggins moved to vacate a judgment of this court, rendered June 18, 1986, convicting him, after a jury trial, of Robbery in the First Degree (Penal Law § 160.15) and sentencing him, as a second felony offender, to an indeterminate term of from six to twelve years' imprisonment. In his motion, defendant argued that the proffered exculpatory testimony of former codefendant Levon Crawford, who had exercised his Fifth Amendment privilege against self-incrimination at defendant's trial, constitutes newly discovered evidence pursuant to CPL 440.10(1)(g) and also that he had not received the effective assistance of counsel at trial. This opinion addresses itself to the reasoning of the court in denying defendant's motion.

CPL 440.10(1)(g) provides that a judgment of conviction may be vacated when

1. At any time after the entry of a judgment, ...

(g) New 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 defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; ....

Timeliness of Motion

The first issue for this court's determination was whether the motion was timely made.

Defendant correctly argued that there is no statutory time limitation for making this motion. Under Code of Criminal Procedure sections 465(7) and 466, which were the predecessor sections to CPL 440.10(1)(g), a motion for a new trial on the ground of newly discovered evidence had to be made within one year of the defendant's conviction, or it was summarily denied. (People v. Hunter, 16 A.D.2d 960, 229 N.Y.S.2d 801 [2d Dept.1962]; cf. People v. Morris, 17 A.D.2d 767, 232 N.Y.S.2d 48 [4th Dept.1962].) While it is true that CPL 440.10(1) provides that the motion may be made "[a]t any time after the entry of a judgment," the "at any time" language is qualified by the specific language of CPL 440.10, subdivision 1(g), requiring that the motion must be made "with due diligence after the discovery of such alleged new evidence."

In this case, it is undisputed that in August 1986, defendant obtained a pro se affidavit from Crawford allegedly exculpating him which he told Crawford he was going to send "to the judge" (although he never did). In December 1986, he was assigned appellate counsel but did not bring the affidavit to counsel's attention until July 1987. Another five months elapsed before counsel prepared and obtained a signed sworn affidavit from Crawford. However, the instant motion was not filed until May 3, 1988, over twenty months after the initial "discovery" of the alleged new evidence. Accordingly, even assuming Crawford's proffered testimony was new evidence, the defendant had not satisfied the statute's due diligence requirement. (See, People v. Stuart, 123 A.D.2d 46, 54, 509 N.Y.S.2d 824 [2d Dept.1986], where the court held it was not error to deny a motion to vacate a judgment of conviction predicated upon the ground of newly discovered evidence where the motion was made more than one year after the discovery of the new evidence since such motion was not made with due diligence; see also, United States v. Ochs, 548 F.Supp. 502, 512-513 [S.D.N.Y.1982], aff'd 742 F.2d 1444 [2d Cir.1983], cert denied 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 [1984]; People v. Mancuso, 141 Misc.2d 382, 388, 532 N.Y.S.2d 643 [Sup.Ct., Kings County 1988].)

While this failure alone warranted denial of the instant motion, because there is no definitive appellate resolution as to what is "due diligence", this Court also considered the defense arguments that the proffered exculpatory testimony of Crawford constitutes newly discovered evidence.

Newly Discovered Evidence

Because the power to grant a motion on this ground is purely statutory, such power may be exercised by the court only when the requirements of the statute have been satisfied, the determination of which rests in the court's sound discretion (People v. Balan, 107 A.D.2d 811, 814-15, 484 N.Y.S.2d 648 [2d Dept.1985]; People v. Wagner, 51 A.D.2d 186, 188, 379 N.Y.S.2d 553 [3d Dept.1976] ).

Defendant has the burden of demonstrating, by a fair preponderance of the evidence, that the evidence was indeed "newly discovered" (CPL 440.30[6]; People v. Latella, 112 A.D.2d 321, 322, 491 N.Y.S.2d 771 [2d Dept.1985] ). In order for evidence to be considered newly discovered within the meaning of the statute, defendant must satisfy the following six criteria:

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 not have 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.

(People v. Salemi, 309 N.Y. 208, 216, 128 N.E.2d 377 [1955], cert denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827 [1956]; People v. Latella, 112 A.D.2d, at 322, 491 N.Y.S.2d 771; People v. Balan, 107 A.D.2d, at 814-15, 484 N.Y.S.2d 648.)

The alleged "new" evidence is former codefendant Levon Crawford's proffered testimony that defendant was not in any way involved in the commission of the robbery, but rather, he "just stood there." However, Crawford's proffered testimony is a virtual repetition of what Crawford said during his plea allocution. Defendant makes no claim that Crawford had any potential testimony not known to him at the time of the trial. Therefore, it does not satisfy CPL 440.10(1)(g)'s requirement that it be new evidence that was "discovered since the entry of a judgment based upon a verdict of guilty after trial." (Cf. People v. Stokes, 83 A.D.2d 968, 443 N.Y.S.2d 12 [2d Dept.1981].)

In People v. Stokes, supra, the defendant's conviction was based solely on the complainant's testimony. Two months after the defendant was convicted, defendant's nephew swore that he had witnessed the robbery and that his uncle was not one of the perpetrators. Defendant's nephew claimed that he had not testified at defendant's trial because he feared for his personal safety. As the Second Department observed, "[i]t is not that the 'witness' is newly discovered, but it is the fact that since the trial, the witness has, for the first time, made statements which makes [sic] such evidence newly discovered." (People v. Stokes, 83 A.D.2d, at 969, 443 N.Y.S.2d 12.) In the instant case, like the witness in Stokes, Crawford is not a newly discovered witness. However, unlike the witness in Stokes, Crawford is not since the trial, for the first time, making statements; rather he made them when he pled guilty during the middle of defendant's trial, although he refused to testify in defendant's behalf.

Defendant argues that it is still newly discovered evidence because Crawford, who exercised his Fifth Amendment right against self-incrimination when called as a witness on defendant's behalf at trial, was unavailable for testimonial purposes.

Therefore, the issue before this Court was whether a formerly unavailable codefendant's testimony (unavailable by reason of his exercising his Fifth Amendment rights), offered after defendant is convicted, constitutes newly discovered evidence.

While there appear to be no appellate decisions in New York that have directly dealt with this issue, many Federal and State jurisdictions have concluded that this type of evidence is not "newly discovered" and have denied defendant's motion for a retrial. (See, e.g., United States v. Diggs, 649 F.2d 731 [9th Cir.], cert. denied 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 [1981]; United States v. Jacob, 475 F.2d 270 [2d Cir.], cert. denied sub nom. Thaler v. United States, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 [1973]; United States v. Metz, 652 F.2d 478 [5th Cir.1981]; United States v. Carlin, 573 F.Supp. 44 [N.D.Ga.1983], aff'd 734 F.2d 1480 [11th Cir.1984]; United States v. Persinger, 587 F.Supp. 899 [W.D.Pa.1984]; United States v. Vergara, 714 F.2d 21 [5th Cir.1983]; United States v. Matthews, 424 F.Supp. 339 [E.D.Pa.1976]; United States v. Peller, 151 F.Supp. 242 [S.D.N.Y.1957]; Garroutte v. State, 683 P.2d 262 [Alaska App.1984]; People v. Fletcher, 193 Colo. 314, 566 P.2d 345 [S.Ct.Colo.1977]; People v. Gutierrez, 622 P.2d 547 [S.Ct.Colo.1981].)

This court finds the federal cases to be very persuasive because the federal test for newly discovered evidence is extremely similar to the New York test. The federal standard, often referred to as the "Berry Rule", provides that a defendant may bring a motion when:

(1) the evidence has come to his knowledge since the trial;

(2) it was not owing to the want of due diligence that it did not come sooner;

(3) it is so material that it would probably produce a different result, if a new trial was granted;

(4) it was not cumulative;

(5) the affidavit of the witness himself should be produced, or its absence accounted for; and

(6) it did not impeach the character or credit of a witness.

(Berry v. State, 10 Ga. 511, 527 [1851].) The only difference between the Berry rule and the standard set forth by the New York Court of Appeals in People v. Salemi, supra, is the federal requirement of...