Pursuant to CPL §§440.10(1)(g), Defendant Darnell Macon moves to vacate the judgment of conviction finding him guilty of assault under a depraved indifference theory (see, Penal Law §120.10 [3]). The judgment was entered on June 12, 2002, and Defendant is presently serving a term of eighteen years as a result of that conviction.

Defendant's Motion

Macon's motion is based upon grounds of "newly discovered evidence," that is, his counsel discovered a witness whose testimony could not have been produced at trial and which is of such character as to create a probability that its admission into evidence would have resulted in a verdict more favorable to Defendant. The new evidence consists of unsworn taped testimony of one Amil Scott, a friend of Defendant, who says that he was the gunman — not Defendant — who was depicted in two photographic stills (Defendant Exhibits D and E) taken from a surveillance video of a shootout and introduced into evidence at Macon's trial.

District Attorney's Response

In opposition, the District Attorney argues that the motion is meritless and should be denied because: (1) there are no sworn allegations of fact (see, CPL §440.30[4][b]); (2) Defendant failed to show the evidence could not have been produced at trial, and (3) Defendant failed to show that a more favorable verdict would have resulted if the evidence had been presented at trial. In summary, the prosecutor maintains the motion should be denied because it was not made with due diligence after discovery of new evidence (see, CPL §§440.10 [1][g]).

Defendant's Reply

In reply, Defendant demands, inter alia, that the Court should not reject Scott's statement upon [*2]the grounds that it is unsworn. Special circumstances exist that justify both the delay in submitting the new evidence and the fact that it is unsworn. If the Court requires Scott to be sworn, Defendant suggests a hearing wherein Scott would be sworn before testifing.

Background

Darnell Macon is presently incarcerated at Coxsackie Correction Facility in Greene County. Defendant, who was found to have injured two bystanders while engaging in a gunfight at a crowded theater in 2000, was convicted of assault under a depraved indifference theory (see, Penal Law §120.10 [3]). Defendant says he was also convicted at trial of reckless endangerment as a lesser included offense and acquitted of two counts of assault and four counts of criminal possession of a weapon. The Court (Strauss, J.) sentenced Macon to a maximum term of 18 years imprisonment.^[FN1] Subsequently, the reckless endangerment count was dismissed by the First Department which otherwise affirmed the conviction (see, People v. Macon, 14 AD3d 413 [1st Dept. 2005]).

According to Defendant, a crucial part of the trial evidence was a surveillance videotape and photographic stills that the District Attorney alleged showed Defendant at the scene of the crime. Macon claims that the prosecutor used the video and photographs as the sole evidence that Defendant was at the crime scene with a gun in his hand. Throughout the trial, Defendant says, he denied he was the person pictured in the tape and photos.

Seven years after conviction, Defendant's counsel says he uncovered the identity of the person "depicted" in the surveillance tape. According to him, the person located is the real perpetrator who was wrongly identified at trial as Macon. That person is Defendant's friend Scott, who spoke to counsel in 2009, but refused to sign a sworn statement or to be video taped at that time, ostensibly because of fear of possible prosecution.

Defendant attempts to justify his attorney's inability to obtain a sworn statement from Scott by the unusual circumstances under which counsel located Scott. In February 2009, Defendant's fiancee brought Scott to Defendant's attorney's office where Scott explained what happened the night of the shootout. However, as stated, Scott would not sign a sworn statement to that effect.

Subsequently, counsel obtained a copy of the videotape that was introduced into evidence at trial, but could not find Scott until "early" 2010. At that time, Scott admitted on tape that he was the person in the video who was identified as Macon at trial. The unsworn interview was placed on a DVD and submitted with Movant's moving papers (see, Exhibit H). Scott provided specific details concerning the incident's location, his actions, and the identity of others there during his taped interview.

Legal Discussion

Article 440 of the Criminal Procedure Law sets forth the procedure for post judgment motions. In this article, our legislature provides a framework for the Court to follow in cases where a defendant claims that his/her conviction should be reviewed because of newly discovered evidence. Statutory sections relevant to the instant case:

CPL §440.10(1)(g) (motion to vacate judgment) - provides, in relevant part, that

"(a)t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:

. . . .

(g) New evidence has been discovered since the entry of a judgment based upon a verdict of [*3]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 the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; . . ."

CPL §440.30(1) (motion to vacate judgment and to set aside sentence; procedure) - provides, in relevant part, that:

"A motion to vacate a judgment pursuant to section 440.10 . . . must be made in writing and upon reasonable notice to the people. . . . If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the moving papers. . . . After all papers of both parties have been filed, and after all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact"; and

CPL §440.30(4) - provides, in relevant part, that:

"4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if: . . . .

(b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one."

For evidence to be considered "newly-discovered" so as to support a motion to vacate a conviction under CPL § 440.10 (1)(g), the evidence in question must meet six criteria: (1) such as will probably change the result if a new trial is granted; (2) discovered since trial; (3) not discoverable before trial by the exercise of due diligence; (4) material to the issue; (5) not cumulative to the former issue; and (6) not merely impeaching or contradicting the former evidence (see, People v. Balan, 107 AD2d 811 [2nd Dept. 1985]) (citing People v. Salemi, 309 NY 208 [1955] and People v. Priori, 164 NY 459 [1900])

Additionally, the legislature in enacting CPL §440.30 requires newly discovered evidence motions to be based upon "sworn allegations" (see, CPL §440.30 [1]) and requires that Defendant prove "essential facts" (see, CPL §440.30 [4][b]) to support a motion by a "preponderance of the evidence" in the event a hearing is held (see, CPL §440.30 [6]).

The Court finds that Defendant fails to meet the criteria set forth in People v. Balan, supra., for newly discovered evidence motions. Defendant failed to carry his burden of proof because he failed to obtain a sworn statement from either Defendant, or more significantly, from the missing witness (Scott). Likewise, because of the lapse of a year from discovery of the new witness, the Court can only conclude that Defendant failed to utilize sufficient due diligence in bringing the instant motion.

On this record, no basis exists for granting relief given the apparent unreliability of Scott's unsworn statement. Even though Defendant's counsel memorialized his interview with Scott on a DVD, he fails to convince the Court that Scott's "admissions" were against Scott's penal interests (see generally, [*4]People v. Johnson, 66 NY2d 398 [1985] [admission against penal interest serves the function of an oath]). Further, Defendant fails to adequately explain why he waited more than a year after discovering Scott's identity before moving to vacate the judgment of conviction.

Applying the factors in People v. Balan, supra., the Court finds Defendant fails to persuade that the judgment of conviction should be overturned. Because the instant motion relies upon the existence of facts and the moving papers do not contain sworn allegations tending to substantiate the alleged facts, the motion must be denied.

As the Court sees it, Defendant's motion to vacate his conviction, pursuant to CPL 440.10(1)(g), is based upon a statement from Defendant's friend who seems to inculpate himself for some actions for which the District Attorney blamed Defendant during the trial. Not only was the statement unsworn (see CPL 440.30[4][b]), but it was prepared more than eight years after Defendant's conviction and a decade after the incident. Moreover, the witness' account of the incident in question is less than credible, particularly in light of his disappearance after initially speaking to counsel and only reappearing after the elapse of a year; and he continues to refuse to sign a sworn statement!

Accordingly, the evidence presented is not of such character as to create a probability that had it been received at the trial the verdict would have been more favorable to Defendant (see generally, People v. Medina, — AD3d —, 912 NYS2d 415 [2nd Dept. 2010]). Therefore, the Court, exercising its discretion, denies the motion (see generally, People v. Mendez, 71 AD3d 696 [2nd Dept. 2008]).

Hearing

In light of the present record, the Court finds Defendant fails to show sufficient facts exist to entitle him to a hearing upon his motion (see generally, CPL §440.30[4][b]). The Court rejects Defendant's suggestion for a hearing where Scott would be sworn before testifying to satisfy any concern about the reliability of his testimony.

CPL §440.30(4) (b) empowers a Court, upon considering the merits of a motion, to deny it without a hearing where the motion is based upon existence of facts (newly discovered evidence) and the moving papers do not contain sworn allegations tending to substantiate all the essential facts required by CPL §§440.30(1) and (4). Because Scott disappeared for nearly a year, without explanation, after Defendant's counsel first interviewed him, and his statement yet remains unsworn, the Court is unconvinced that Scott's statement contained in the DVD is reliable. Based upon the foregoing and in the exercise of its discretion, the Court determines that a hearing is not justified at this time.



Conclusion

Upon this record,^[FN2] the Court finds that Defendant fails to set forth grounds upon which to set aside his conviction. Likewise, Defendant is not entitled to a hearing upon his motion, Accordingly, Defendant's motion in its entirety is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: Bronx, New York [*5]

March 3, 2011

___________________________DOMINIC R. MASSARO, JSC