People v. Klein
Decision Date | 13 February 1957 |
Citation | 6 Misc.2d 289,166 N.Y.S.2d 240 |
Parties | The PEOPLE of the State of New York v. Julius F. KLEIN, Jr., Defendant. |
Court | New York County Court |
Frank A. Gulotta, Dist. Atty. of Nassau County, Mineola, for the people.
James G. Blake, Mineola, for defendant.
This is a motion by the defendant Klein to set aside the jury verdict convicting him of Assault in the Second Degree and to grant a new trial upon the grounds that the substantial rights of the said defendant have been prejudiced by reason of: First, the discovery of new evidence which, if it had been available at the time of the trial and had been presented for the jury's consideration, would have changed the verdict; and secondly, that the District Attorney suppressed certain evidence in his possession, which evidence was discovered by the defendant subsequently to the trial and which, if it had been presented by the District Attorney to the trial jury, would probably have changed the result of the trial.
This Court, under authority of § 465, subdivision 7 of the Code of Criminal Procedure, ordered an open hearing and directed the appearance of the affiant Robert Cook for the purpose of personal examination and cross-examination under oath upon the contents of his affidavit, which is the newly discovered evidence alluded to in this application.
Power to grant a new trial on the ground of newly discovered evidence is of statutory origin and strict compliance with the statute is necessary (People v. Salemi, 309 N.Y. 208, 215, 128 N.E.2d 377, 381; People v. Knapper, 230 App.Div. 487, 245 N.Y.S. 245).
Section 465, subdivision 7 of the Code of Criminal Procedure provides as follows:
Thus, it is clear that this application must be considered solely upon the affidavits submitted and not on unsworn or hearsay statements. It remains for this Court, therefore, to confine itself to the statements made by the affiant Cook and to his testimony taken at the hearing. It is not this Court's province, nor would it be proper to consider the unsupported statements made by defendant Klein's present attorney who has been substituted for his trial counsel.
In People v. Priori, 164 N.Y. 459, 472, 58 N.E. 668, 672, the Court of Appeals set forth the requirements of newly discovered evidence which would justify the granting of a new trial as provided for by § 465 of the Code, as follows:
'Newly-discovered evidence, in order to be sufficient, must fulfill all the following requirements: (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 affiant Cook at the hearing affirmatively stated on more than one occasion that he advised the defendant Klein and also defendant's lawyer, Mr. Wexler, long before the commencement of this trial with respect to the assault upon Wicks on August 7, 1956. A reading of the following testimony of the affiant Cook adduced at the hearing conclusively establishes this fact. His testimony in this regard is as follows:
At page 383 he testified:
'Mr. Blake: This is objected to, if the Court please.
' And further at page 401:
Cook's testimony at the trial itself is also significant. There he stated as follows:
...
To continue reading
Request your trial-
People v. Hawkins
...the evidence in a case in his possession (People v. Brancazio, 22 Misc.2d 302, 304 middle, 196 N.Y.S.2d 167, 170 bottom; People v. Klein, 6 Misc.2d 289, 166 N.Y.S.2d 240, affirmed 4 A.D.2d 755, 165 N .Y.S.2d 704, affirmed 4 N.Y.2d 985, 177 N.Y.S.2d 505, 152 N.E.2d 529); and that the general......
-
People v. Rodriguez
...of the relief. People v. Wurzler, 280 App.Div. 1020, 116 N.Y.S.2d 756; Petition of Meisel, Sup., 133 N.Y.S.2d 534; People v. Klein, 6 Misc.2d 289, 166 N.Y.S.2d 240, affirmed 4 A.D.2d 755, 165 N.Y.S.2d Assuming, arguendo, the affirmative of this charge, that is, that perjury had pervaded the......
- People v. Klein
- People v. Klein