People v. Wainwright

• Decision Date: 05 July 2001
• Citation: 727 N.Y.S.2d 106,285 A.D.2d 358
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant,<BR>v.<BR>WILLIAM WAINWRIGHT, Respondent.
• Court: New York Supreme Court — Appellate Division

285 A.D.2d 358

727 N.Y.S.2d 106

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

v.WILLIAM WAINWRIGHT, Respondent.

Decided July 5, 2001.

Concur — Rosenberger, J. P., Tom, Ellerin, Rubin and Buckley, JJ.

Following a fact-finding hearing, the jury verdict was set aside on the ground of newly discovered evidence, namely that new evidence was discovered since the trial which could not have been produced at the trial and which was of such character as to create a probability that, had such evidence been produced at trial, the verdict would have been more favorable to defendant (CPL 330.30 [3]). The evidence consisted of the testimony of Raymond Toomer, co-defendant in this heroin sale case. According to defendant, Toomer stated at the time of defendant's arrest that he had not acquired the heroin from defendant and this statement had been relayed to defendant's trial counsel, substituted for earlier counsel who had represented defendant for almost half a year.

At the post-trial hearing, Toomer testified that he has been a drug user since 1966; that he had a criminal record including three felony convictions at the time of defendant's trial; that he became acquainted with defendant by seeing him twice a week at a methadone maintenance program; that his memory of the circumstances surrounding his arrest was impaired due to being "stoned"; and, that whatever drugs were found on him on that date had been purchased on an earlier date from another, unidentified individual.

Defendant testified that during the year which elapsed between defendant's arrest and trial, although defendant believed Toomer would testify that no drugs had been obtained from him, defendant nonetheless made no effort to locate Toomer because he did not have Toomer's address; that defendant did not look in a telephone directory; that defendant did not ask any counselor at the methadone center about Toomer; that defendant did not tell his first attorney at all about Toomer's exculpatory statement; and, that defendant informed his trial attorney that Toomer was probably dead. Defendant testified that he told his trial attorney that Toomer was probably "dead" although his own understanding was that such a term was used to describe a person whose current whereabouts were merely unknown.

Defendant's trial counsel testified that he talked with defendant on five or six occasions prior to trial; that during the trial defendant first identified Toomer as a witness who would state that no sale had taken place; that defendant had then informed him that Toomer was probably dead; and, that, in any event, when it became clear that no prosecution witness would testify that money had been recovered from defendant, defendant agreed that no witness should be called.

...