On November 15, 1995, defendant was convicted, upon a jury verdict, of murder in the second degree (Penal Law § 125.25[1] (three counts), conspiracy in the second degree (Penal Law § 105.15), and criminal possession of weapon in the second degree (Penal Law. § 265.03[2]). On November 27, 1995, this Court sentenced him to an indeterminate term of imprisonment totaling 38 1/3 years to life. On December 5, 2006, this Court denied defendant's CPL 440.10(1)(b)(g),(h) motion to vacate his conviction based upon newly discovered evidence. By motion returnable March 1, 2007, defendant moves for reargument of his CPL 440.10 motion.

Factual and Procedural Background

Defendant Pedro Rosario was indicted, along with co-defendants Gary Crespo and Cory Jackson,^[FN1] for murder in the second degree and other related charges arising out of a triple homicide which occurred on May 18, 1992 inside an apartment at 350 St. Ann's Avenue in the Bronx. The People alleged that defendant and co-defendant Crespo had "put out a contract" for the killing of Otis Blair, one of the three victims, which was then carried out by co-defendant Jackson. Blair was an employee in defendant's drug operation, whom defendant believed was stealing from him.

Although there were no witnesses to the actual shooting of the three victims, there were two circumstantial witnesses to the events: Milton Harris and Nicholas Taylor. On May 21, 1992, Taylor, then thirteen years of age, was interviewed by the police and the district attorney's office. Taylor gave two statements, one recorded by Detective James Slattery of the 40th Precinct, and a second recorded by a stenographer during questioning by an assistant district [*2]attorney. He stated that he was standing in the stairwell outside the apartment where the shooting occurred and observed co-defendant Jackson and two other men, one of whom was armed, enter the apartment just before the shooting. Taylor stated that he saw one of the victims open the door after Jackson had exited the apartment and that Jackson was standing outside the apartment when the shots were fired. Despite the exculpatory nature of Taylor's statements, the People did not turn them over to the defense until September 6, 1995, about six months before trial. Defendants moved to dismiss the indictment based upon the People's Brady violation.

On September 20, 1995, the Court conducted a hearing on the alleged Brady violation. After the hearing, the Court found that Taylor's statements constituted Brady material, but that the extraordinary remedy of dismissing the indictment was not warranted (see People v Rosario, 168 Misc 2d 182 [Sup. Ct. Bx. Cty. 1995]). The Court permitted defendants to introduce both of Taylor's statements at trial and gave an adverse inference charge regarding the People's Brady violationAll three defense counsel decided not to call Taylor as a witness after listening to his testimony at the hearing.

By pro se motion dated July 19, 1999, defendant moved to vacate his judgment of conviction pursuant to CPL 440.10, alleging, inter alia, that the People had withheld Brady material. By written decision dated December 23, 1999, this Court denied defendant's motion summarily.

By pro se motion dated January 26, 2000, and papers filed by appointed counsel, defendant sought leave to appeal the denial of his first CPL 440.10 motion On March 16, 2000, the Appellate Division, First Department, granted defendant's application for leave to appeal the denial of his CPL 440.10 motion and to consolidate it with his direct appeal.

On appeal, the judgment of conviction was affirmed (see People v Rosario 309 AD2d 537 [1st Dept. 2003]). The Appellate Division agreed that the sanction of dismissal was not warranted for the Brady violation. The Court also found that the jury's verdict convicting defendant of three counts of murder was supported by legally sufficient evidence. Leave to appeal was denied (see People v Rosario, 1 NY3d 579 [1st Dept. 2003]).

By motion papers dated April 20, 2006, defendant, through retained counsel, moved to vacate his judgment of conviction pursuant to CPL 440.10 based upon purported newly discovered evidence and alleged misconduct by the People. Defendant argued that the People intimidated Taylor before the Brady hearing and prevented him from testifying at trial. Defendant relied on statements Taylor allegedly made to two defense investigators, James. F. Savage, Jr. and Thomas F. Wiers, during interviews conducted between July 21, 2004 and May 3, 2005.

The People submitted their opposition papers on July 14, 2006. In a reply dated September 1, 2006, defendant submitted a new, undated sworn letter from Taylor to defense investigator Thomas Wiers. On September 14, 2006, the People responded to defendant's reply papers.

By decision dated December 5, 2006, this Court denied defendant's motion summarily. The Court found that Taylor's alleged statements to defense investigators twelve years after the incident were unreliable and that defendant failed to establish that the statements would probably have resulted in a more favorable verdict had they been introduced at trial. The Court concluded that Taylor's impairment and inability to recall the incident were amply supported by the record [*3]and rejected defendant's claim that Taylor fabricated his memory loss at the Brady hearing.

By pro se motion dated January 9, 2007, defendant seeks to reargue his motion to vacate his conviction. He asserts that the Court "may have overlooked certain significant facts that, if considered as a whole, in conjunction with the newly discovered evidence ascertained by defendant.....creates a reasonable possibility of affecting the verdict" (Defendant's motion at 2). Defendant argues that there are "undisputed facts substantiating that the prosecution's main witness, Milton Harris, testified falsely in order to help convict" defendant and eliminate himself as a suspect (Defendant's motion at 2). He claims that several people made statements, including Otis Blair's brother Terrell Blair, corroborating that defendant was in Manhattan while Cory Jackson was in the Bronx. Defendant additionally claims that Otis Blair's father, Otis Jones, admitted giving Cory Jackson the gun that killed his son. He also relies on a statement from Milton Harris' alleged girlfriend, Yolanda Taylor, that Harris admitted to committing the homicides. In addition, by letter dated February 19, 2007, defendant informed the Court that the Medill School of Journalism "conducted an independent review of [his] case" and "validated [his] innocence claim."

In their opposition papers dated February 27, 2007, the People noted defendant's failure to annex the letter from the Medill School of Journalism as indicated. By letter dated March 2, 2007, defendant apologized for his oversight and submitted the letter he received from the Medill School of Journalism (Northwestern University). The letter, dated August 10, 2005, informs defendant that the "Medill Innocence Project" would be unable to take on his case because of their limited resources. The letter states that "[a]fter briefly reviewing your case, your claim of innocence appears to be meritorious."

Conclusions of Law

Upon reviewing all of the parties' submissions, the Court grants defendant's application for reargument, and, upon reargument, adheres to its previous determination denying the motion to vacate his conviction summarily.

CPLR 2221 provides that a motion for reargument "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matter of fact not offered on the prior motion" (CPLR 2221[d]). The motion is addressed "to the discretion of the court" and is designed to afford a party an opportunity to establish that the court misapplied the facts or the law "or for some reason mistakenly arrived at its earlier decision" (see Loland v City of New York, 212 AD2d 674 [1st Dept. 1995]; William P. Pahl Equipment Corp. v Kassis, 182 AD2d 22 [1st Dept. 1992]; Schneider v Solowey, 141 AD2d 813 [1st Dept. 1988]). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided, or to present arguments different from those originally asserted (see William P. Pahl Equipment Corp. v Kassis, supra at 26).

In the case at bar, defendant failed to meet his burden of demonstrating that this Court overlooked or misapprehended the facts or law in determining the prior motion. As the People note, defendant is improperly presenting arguments different from those asserted in his motion to vacate his conviction and relying on "matters of fact not offered on the prior motion" (see William P. Pahl Equipment Corp. v Kassis, supra at 26). In his prior motion, defendant did not raise the claims regarding Milton Harris' alleged confession and Otis Jones' admission to [*4]supplying Cory Jackson with the murder weapon. Defendant's prior motion also made no reference to the statements contained in the letter he received from the Medill School of Journalism regarding the alleged meritorious nature of his case. Thus, defendant's reliance on these facts is improper. Defendant has failed to demonstrate that this Court overlooked or misapprehended the law or the facts presented on the prior motion.

Accordingly, the Court adheres to its original determination that Taylor's alleged statements to defense investigators twelve years after the incident do not warrant a new trial or an evidentiary hearing on a theory of newly discovered evidence, since there is no probability that the alleged statements would have resulted in a more favorable verdict (CPL 440.10 [1][g]; People v Salemi, 309 NY 208, 215-216 [1955], cert. denied 350 US 950 [1956]; People v Lugo, 25 AD3d 460 [1st Dept. 2006]), lv denied 6 NY3d 815 [2006]; People v Machicote, 23 AD3d 264 [1st Dept. 2005], lv denied 6 NY2d 757 [2005]; People v Paredes, 22 AD3d 297 [1st Dept. 2005]), lv denied 6 NY3d 757 [2005]).

Thus, upon reconsideration, the Court adheres to its prior decision summarily denying defendant's motion to vacate his judgment of conviction.

This shall constitute the Decision and Order of the Court.

Dated:Bronx, New York

April 19, 2007