On October 29, 1997, judgment was entered against the defendant in Supreme Court, Bronx County (Bamberger, J.), convicting him upon a jury trial of murder in the second degree (Penal Law § 125.25 [2]), and sentencing him to an indeterminate term of life imprisonment with a mandatory minimum period of twenty-four years. The basis of his conviction was that on February 19, 1996, the defendant murdered Theodore Vance by firing several gunshots at him following an earlier altercation between them.

Defendant moved by pro se motion, filed March 1, 2011, to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10 (1) (h) claiming that a newly discovered witness establishes his actual innocence.^[FN1] By interim order dated April 5, 2012 (Dawson, J.), an evidentiary hearing was ordered on defendant's motion. On November 1, 2012, this matter was administratively transferred to this court for the purpose of conducting such hearing, which was conducted on December 5, 2012. Defense counsel filed a post-hearing memoranda of law on January 7, 2013; the District Attorney responded January 25, 2013. By [*2]decision dated June 19, 2013, this court denied defendant's motion. This expands that decision.

On February 19, 1996, the defendant and the decedent, Theodore Vance, became engaged in a physical altercation, during which Vance struck the defendant approximately three times with a retractable metal wand. After extricating himself, the defendant pursued Vance. Minutes later, the two resumed their altercation, during which Vance again struck the defendant with the metal wand. After pushing Vance off a second time, the defendant ran across the street before firing two gunshots at Vance, apparently missing him. Seconds later, the defendant fired a third shot that struck Vance, mortally wounding him.

As noted, judgment was entered against the defendant after a jury trial in the Supreme Court, Bronx County, on October 29, 1997, convicting him of murder in the second degree and sentencing him to an indeterminate term of twenty-four years to life imprisonment.

On February 15, 2000, the Appellate Division, First Department, affirmed the defendant's conviction, rejecting his argument that the trial court erred in denying his application to admit the hearsay statement in evidence. Additionally, the First Department found that the prosecution's thirteen-month delay in disclosing a document containing a statement of an individual identifying a Hispanic man as the shooter neither deprived the defendant of due process nor precluded him from presenting an effective defense (People v McKee, 269 AD2d 225 [1st Dept 2000]).

On April 14, 2000, the Honorable Judge George Bundy Smith denied defendant's application for leave to appeal to the Court of Appeals (People v McKee, 94 NY2d 950 [2000]).

On February 24, 2001, defendant sought, through pro se papers, a writ of habeas corpus from the United States District Court for the Southern District of New York, on the same basis as his direct appeal. By decision dated August 15, 2001, the District Court, while denying the application, issued a certificate of appealability (McKee v Greiner, US Dist Ct, SD NY, 01 Civ 2155, WL 930843 [Martin, J., 2001]).

On May 31, 2002, the United States Court of Appeals for the Second Circuit affirmed the District Court's decision (McKee v Greiner, 36 FedAppx 7 [2d Cir 2002]).

Then, on December 19, 2003, defendant, again through pro se papers, sought a writ of error coram nobis from the Appellate Division, First Department, claiming ineffective assistance of counsel. On April 15, 2004, the First Department denied that application.

As noted, defendant then moved, fourteen years after his conviction, to vacate his judgment conviction pursuant to CPL 440.10 (1) (g). The basis of this motion is that newly discovered evidence consisting of an affidavit by Nigel Clarke, a fellow inmate of the defendant at Five Points Correctional Facility, establishes defendant's actual innocence. Specifically, in that affidavit, Clarke now claims to have witnessed a Hispanic man, not the defendant, shoot and kill Theodore Vance.

By written decision dated April 5, 2012, the Honorable Joseph Dawson ordered that an evidentiary hearing be held on this issue. For that purpose, David Bertan was assigned pursuant to County Law 18b to represent the defendant. As noted, that hearing was held on December 5, 2012, before this court. At the hearing, the defendant called one witness: Nigel Clarke. The People called no witnesses.

In a post-hearing memorandum of law, dated January 7, 2013, the defendant argued that [*3]Clarke's testimony indeed constitutes newly discovered evidence and corroborates the defendant's original theory presented at trial: that a Hispanic man, not a black man, shot and killed Theodore Vance. Thus, he claims that such testimony, if presented at a new trial, would likely change the result.

Authority to set aside a verdict or a judgment of conviction based upon newly discovered evidence is exclusively statutory (People v Suarez, 98 AD2d 678 [1st Dept 1983], lv denied 61 NY2d 766 [1984]; see CPL §§ 330.30, 440.10). In order to prevail on a motion pursuant to CPL § 440.10 (1) (g), such newly discovered evidence must meet each of the following criteria:

(1) it must be such as will probably change the result if a new trial is granted;

(2) it must have been discovered since the trial;

(3) it must be such as could have not been discovered before the trial by the exercise of due diligence;

(4) it must be material to the issue;

(5) it must not be cumulative to the former issue; and,

(6) it must not be merely impeaching or contradicting the former evidence

(People v Salemi, 309 NY 208, 215-16 [1955], cert denied 76 S Ct 325 [1956]; People v Taylor, 246 AD2d 410, 411 [1st Dept], lv denied 91 NY2d 978 [1998]; Suarez, 98 AD2d at 678; CPL 440.10 [1] [g]).

Generally, a judgment of conviction carries with it presumptive regularity, and a defendant moving to vacate it bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-56 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]). At the outset, this court notes that the defendant, in his moving papers, alleged sufficient factual allegations to warrant an evidentiary hearing. As indicated, this court indeed conducted a hearing, at which Nigel Clarke, the sole witness, testified on behalf of the defendant. Subsequent to that hearing, the question presented is whether the six factors listed above, when applied, require that the judgment of conviction be vacated.

To be clear, the People do not dispute the existence of factors two through six. Rather, they argue that the only issue for this court to determine is whether the first factor is satisfied; they assert it is not. Specifically, the People maintain that (1) the hearing testimony of Nigel Clarke, even if credible, fails to create a probability that if such testimony were presented at trial the verdict would be different, and (2) the defendant fails to demonstrate that the hearing testimony is corroborated by evidence presented at trial. According to the People, then, the defendant has not substantiated his claim of newly discovered evidence pursuant to CPL 440.10 (1) (g). This court agrees. Indeed, the defendant's insufficient substantiation of the allegations set forth in support of his motion fail to establish a "clear factual record" (People v Licitra, 236 AD2d 559 [2d Dept 1997]).

[*4]B. Affidavit and Testimony of Nigel Clarke

Nigel Clarke, a jailhouse law clerk, is a fellow inmate of the defendant at Five Points Correctional Facility. According to the defendant, Clarke, sixteen years after the shooting of Theodore Vance, now claims to have witnessed it. Clarke contends, and ostensibly expects this court to believe, that he recollects with acute clarity the shooting at the precise time he was seated in his car rolling a marijuana blunt while waiting to sell crack cocaine to an unidentified individual. This epiphany apparently came to Clarke when, after observing the defendant on multiple occasions in the jailhouse law library, he approached the defendant to offer assistance with his case. As Clarke explains, the reason he did not initially recognize the defendant was because the defendant had lost weight. Only upon discussing the defendant's case with him did Clarke suddenly recall that he had been present at the location of the shooting. Without elaborating, Mr. Clarke immediately told the defendant that he had been "locked up" for something "Jimbo" did. It was then that Clarke decided to prepare and sign an affidavit recounting what he claims to have witnessed. In that affidavit, dated January 5, 2011, Clarke stated, in part:

[O]n February 19, 1996, about 7:30-8:30 at night I was driving down university and made a turn on 176st as I parked in front of building 120 W, 176st, I hear two shots a black male ran pass the car. One or two seconds later Louis Moro ran pass the car and fired a shot killing the black ma[l]e. Jimbo then ran back toward my car, and look at me and kept on running toward university. I then got out the car and could see the individual laying with half his body in the street and half on the si[d]e walk. I got in the car and reversed and made a right on Andrews Avenue.

Courts have routinely questioned the reliability of exculpatory statements made years after the crime, especially when the individuals making such statements are fellow inmates of the defendant moving to have his or her judgment of conviction vacated (see People v Cintron, 306 AD2d 151, 152 [1st Dept 2003]; People v Robinson, 211 AD2d 733, 733-44 [2d Dept 1995]; People v Medina, 79 AD3d 909, 909-10 [2d Dept 2010]). This is particularly true where, as here, Clarke's memory was suddenly and inexplicably jarred sixteen years after the murder when he met the defendant by happenstance in the prison law library. But aside from this obvious credibility issue, Clarke's testimony contained two significant discrepancies from his signed affidavit.

First, at the hearing, Clarke testified that he observed Jim Moro shoot Theodore Vance, which is, conveniently, what he claims to have told the defendant when they first met. It is not, however, what he stated in his signed and sworn affidavit; there, he identified Louis Moro as the shooter. Second, Clarke testified that he never exited his vehicle to view Vance's body. In his sworn affidavit, however, he stated exactly the opposite. True, Clarke disclosed these inconsistencies with former ADA Chandra Menon on April 27, 2011, but it is entirely unreasonable to believe that he clearly remembers the details of exactly where he parked and what he was doing at the precise moment of the shooting, yet unable to accurately recall such details as who fired the fatal shot and whether he exited his vehicle to observe Vance's body. Moreover, Clarke acknowledged witnessing numerous homicides on the block where Vance was [*5]killed, and conceded that he could not definitively state the shooting he claims to have witnessed was that of Theodore Vance.

C. Corroboration

Defendant argues that other evidence presented at trial corroborates Clarke's testimony. Kishoto Stanback, a twice-convicted felon and six-time misdemeanant with three pending criminal cases in Bronx County, testified on the defendant's behalf. Stanback initially stated that while he observed flashes associated with the gunshots, he did not witness the person who fired them. Subsequently, though, he testified that he observed a man carrying a gun, whom he described as 5'1" or 5'2", 110 pounds, and having a "high yellow" complexion. Notably, the defendant is a black male, approximately 5'9" and weighing 210 pounds.

At trial, the People's sole eyewitness, Rossy Chatelain, testified that he observed the defendant and Vance engage in a brief conversation minutes before the defendant fired two shots at Vance. Chatelain then witnessed the defendant run in the direction of University Avenue when he heard a third shot fired. As Chatelain approached 176th Street, he observed Vance lying in a pool of blood. As the People correctly note, Stanback's testimony was the only evidence presented at trial that contradicted Chatelain's testimony.

It is true that Clarke's testimony, irrespective of its credibility, would be new evidence for a jury to consider. But it is not lost on this court that such evidence hardly constitutes a new theory. In fact, the testimony that the defendant now seeks to present to a jury through Clarke was elicited at trial through Stanback: that a Hispanic male, not the defendant, fatally shot Vance. The jury heard Stanback's testimony, considered that theory, and rejected it. Instead, the jury credited Chatelain's testimony. As such, even if this court were to credit Clarke's testimony, which it does not, it would not be likely to change the outcome of this case (see People v Rodriguez, 193 AD2d 363, 366 [1st Dept 1993]; People v Barrero, 137 AD2d 759 [2d Dept 1988]).^[FN2]

For the reasons stated above, defendant's motion to vacate his judgment of conviction pursuant to Criminal Procedure Law 440.10 (1) (g) and (h) is summarily denied in its entirety.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his [*6]place of incarceration.

Dated: September 30, 2013

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Richard Lee Price, J.S.C.