On October 29, 1999, after a jury trial before this Court, defendant was convicted of Murder in the Second Degree (two counts) and Robbery in the First Degree (two counts). On January 7, 2000, the defendant was sentenced by this Court to concurrent indeterminate terms of imprisonment of from twenty years to life on each murder count and from twelve and one-half to twenty-five years on each robbery count.

The convictions arose out of an incident which took place on November 7, 1996, in which defendant, acting in concert with his cousin James Benbow, approached and confronted Brian Boyd on the street in Jamaica, Queens. The defendant and his cousin robbed Boyd of a chain and pendant, shot him in the chest and fled. Boyd died shortly after the shooting. A bystander, Ms. Hannah Krider heard the gunshot and saw defendant walking from the scene with a gun in his hand. Ms. Krider identified the defendant from a photo array and in a lineup which took place on January 24, 1997.

Prior to trial, the defendant moved to suppress the line-up identification, the photographic array identification and inculpatory statements he made to the police. After a suppression hearing held before Judge Rotker, the court found there was probable cause for the defendant's arrest, that the identifications were not suggestive, and that the defendant's statements were made voluntarily.

In April 2001, the defendant filed a direct appeal in the Appellate Division, Second Department, contending that the lineup procedure was unduly suggestive. The conviction was affirmed by the Appellate Division, Second Department by order dated December 17, 2001. The Appellate Division stated that there was no showing that the defendant's lineup was impermissibly suggestive (see People v. Barnes, 289 AD2d 413(2d Dept. 2003); leave to appeal denied, 98 NY2d 635 (2002).

Subsequently, the defendant filed five post judgment motions to vacate his conviction pursuant to CPL §440.10. The defendant also filed three writs of error coram nobis in the Appellate Division which were denied and also filed a writ of habeas corpus in United States District Court for the Eastern District which was denied and which was appealed to the Second Circuit Court of Appeals. The Second Circuit affirmed the judgment of the district court (see Barnes v Burge, 371 Fed. Appx. 196 [2d Cir. 2010]).

In the instant motion, which is the defendant's sixth motion to vacate his conviction [*2]pursuant to CPL § 440.10, the defendant contends that at the suppression hearing, in order to establish probable cause for his arrest, the Detectives testified falsely that an eyewitness, one Maki Carter had made statements to the police implicating the defendant in the murder. The defendant claims that although he presented this claim in a prior 440.10 motion, his current motion is based upon a written statement by Maki Carter which he included with the motion. The affidavit from Carter dated October 22, 2010 states that, although the police had asked him questions about Barnes in relation to the murder, he never made any statement to the police implicating Barnes in the murder of Boyd. The defendant contends that this statement indicates that the Detectives gave false testimony at the suppression hearing. Defendant contends that Carter's statement constitutes newly discovered evidence.

In their affirmation in opposition, the People contend that defendant's claim that false testimony was elicited at the hearing is mandatorily procedurally barred from this court's review because the claim is based upon testimony that is on the record and therefore the claim is barred by CPL § 440.10(2)(c) as it could have been raised in the defendant's direct appeal or in his prior 440.10 motions.

Pursuant to C.P.L. Section. 440.10(2)(c), the

court must deny a motion to vacate a judgment when,

"Although sufficient facts appear on the record of the

proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him."

This court finds that defendant's motion is procedurally barred pursuant to C.P.L. Section 440.10(2)( c) as the claim that the police witnesses used false or perjured testimony to establish probable cause for his arrest is a claim that can be reviewed by examining the record and which defendant failed to raise on the direct appeal or in any of his prior 440 motions.

The defendant has failed to provide a sufficient basis or justifiable reason for his failure to raise any of the grounds on the previous appeals. In his affidavit Carter states that he informed both the defendant and defendant's counsel at the time of the trial that he never made any statement that Barnes killed anyone.

Pursuant to C.P.L. Section 440.10(1)(g):

§ 440.10 Motion to Vacate Judgment [*3]

1. At 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 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;

The courts have held, with respect to motions to vacate on the grounds of newly discovered evidence that,

"In order to classify evidence as newly discovered, it must satisfy six criteria. The evidence must: 1) be discovered after trial, 2) not have been ascertainable prior to trial, 3) be material to an issue at trial, 4) not be cumulative, 5) not be merely impeaching or contradictory to former evidence, and 6) be of such nature that it would probably change the result if a new trial were to be granted. People v. Salemi, 309 NY 208, 215-216,1955), cert. denied, 350 U.S. 950(1956)." People v. Potter, 2005 NY Slip Op 51741U (NY Misc. 2005).Pursuant to C.P.L. 440.10(1)(g), "it is well settled that on a motion for a new trial based upon newly discovered evidence the movant must establish, among other things, that the newly discovered evidence must be such as to probably, not merely possibly, change the result if a retrial is had." People v Jackson, 238 AD2d 877(4th Dept. 1997); People v Rodriguez, 193 AD2d 363(1st Dept. 1993); People v. Penoyer, 135 AD2d 42(3d Dept. 1988); People v. Latella, 112 AD2d 321(2d Dept. 1985).

In this case it is not probable that defendant would have received a more favorable outcome at the suppression hearing if the Court was aware that Carter stated he never saw Barnes kill anyone. The evidence used at the suppression hearing to show that the police had probable cause to arrest the defendant was strong and not based on their testimony as to what they learned from Carter. Detective Hendrickson prepared a photo-array containing defendant's photograph from which his photo was selected by eyewitness Hannah Krider. She told Hendrickson that Barnes was the man she saw running away from the scene of the shooting and that he was carrying a gun. Hendrickson testified at the hearing that it was based upon this identification that he arrested the defendant. It was not Carter's statement that established the probable cause for Barnes' arrest. Secondly, according to the People, Barnes was already in custody when the police first spoke [*4]to Carter on November 27, 1996 so his arrest could not have been based upon Carter's statements. Thus, as the probable cause to arrest the defendant was based upon the eyewitness's photo array identification, the defendant has not established that the Detective's testimony at the probable cause hearing regarding what Maki told them, even if false, would probably have changed the prior determination of the court at the probable cause hearing.

Accordingly, for all of the above-stated reasons, the defendant's motion is denied in its entirety.

Order entered accordingly.

Robert J. McDonald, J.S.C.