People v. Nicholson

• Decision Date: 22 December 1995
• Citation: 635 N.Y.S.2d 869,222 A.D.2d 1055
• Parties: The PEOPLE of the State of New York, Respondent, v. Rodney NICHOLSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 869

635 N.Y.S.2d 869

222 A.D.2d 1055

The PEOPLE of the State of New York, Respondent, v. Rodney NICHOLSON, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 22, 1995.

Edward J. Nowak by Drew Pubrin, Rochester, for Appellant.

Howard R. Relin by Elizabeth Clifford, Rochester, for Respondent.

Before DENMAN, P.J., and GREEN, FALLON, DOERR and BOEHM, JJ.

MEMORANDUM:

On appeal from a judgment of conviction of murder in the second degree, defendant contends, inter alia, that County Court erred in summarily denying a motion pursuant to CPL 330.30(3) to set aside the verdict on the ground of newly discovered evidence, namely, a post-verdict confession by Darnell Phelps. Because we conclude that the motion papers are sufficient to withstand summary dismissal, we hold the case, reserve decision and remit the matter for a hearing pursuant to CPL 330.40(2)(f).

At defendant's trial for the shooting death of Richard Smith, the People established that the victim was shot eight times with a .22 caliber handgun. The sole eyewitness, Toy Reed, the victim's girlfriend, testified that defendant shot the victim repeatedly as the victim ran away. The autopsy evidence tended to show, however, that most of the shots entered the victim from the front. Additionally, Reed's testimony was contradicted on salient points by Reed's prior statements and by the testimony of other witnesses. The People presented no evidence of motive.

After the jury found defendant guilty of second degree murder, defense counsel met with Phelps, the former boyfriend of Reed and the father of her child. Phelps earlier had admitted being at the scene but denied seeing the shooting. After the verdict, Phelps admitted shooting the victim during an argument over a hat that Phelps had given Reed but that Reed had given to the victim, her new boyfriend. Phelps stated that he believed that the victim was reaching for a gun, so he pulled his gun and repeatedly shot the victim as the victim continued toward him. According to Phelps, Reed falsely implicated defendant in the shooting to protect Phelps because Phelps is the father of Reed's child.

Phelps refused to execute an affidavit and later could not be located. Defendant subsequently moved pursuant to CPL 330.30 to set aside the verdict on the ground of newly discovered evidence. In an affidavit, defense counsel related Phelps' statement and the attendant circumstances. The People opposed the motion, which the court denied without a hearing.

We conclude that the motion papers were legally and factually sufficient to warrant a hearing. They make out a proper ground for the motion by setting forth non-cumulative evidence that is material to the issue of guilt or innocence, that was discovered by defendant after the trial, that could not have been produced by defendant at the trial even with due diligence, and that is of such character as to create a probability of acquittal (see, CPL 330.30[3]; People v. Salemi, 309 N.Y. 208, 215-216, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827; People v. Burnette, 117 A.D.2d 987, 988, 499 N.Y.S.2d 288; People v. Stokes, 83 A.D.2d 968, 969, 443 N.Y.S.2d 12, citing People v. Shilitano, 218 N.Y. 161, 170-171, 112 N.E. 733). Further, we conclude that the motion papers, which are based on information and belief (see, CPL 330.40[2][a] ), contain sworn allegations of all essential facts necessary to support the motion (see, CPL 330.40[2][d], [e] ). Because...