Summary
reversing grant of C.P.L. § 330.30 motion where the potential testimony of the witnesses sought to be characterized as "new evidence" was "discoverable by the exercise of due diligence, inasmuch as he and the defendant were familiar with each other from the neighborhood, had likely seen each other immediately prior to the commission of the crime at a nearby party, and had spoken at the Brooklyn House of Detention, where they were both being held during the defendant's trial," and "the testimony of the witnesses offered by the defendant was not of such a character as to create the probability of a more favorable outcome"
Summary of this case from Laurey v. GrahamOpinion
July 13, 1992
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the order is reversed, on the law, the motion to set aside the verdict is denied, the verdict is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the imposition of sentence.
We agree with the People that the court improvidently exercised its discretion in granting the defendant's motion to set aside the verdict pursuant to CPL 330.30. In support of his motion to set aside the verdict, the defendant tendered alleged "newly discovered" evidence consisting of two witnesses whose potential testimony could have been produced at trial through the exercise of due diligence (see, CPL 330.30; People v. Fielder, 154 A.D.2d 388, 389; People v. Zambrana, 142 A.D.2d 744).
One of the witnesses whose testimony was offered in support of the motion — Stanley Brewer — had been a close friend of the defendant for 10 years. Brewer's potential testimony was known to the defense counsel prior to trial. Accordingly, Brewer cannot be described as a newly-discovered witness. Moreover, although Brewer left New York briefly during the course of the trial, the record establishes that the defense counsel did not act diligently in making further efforts to obtain his testimony. After Brewer's departure, the defense counsel requested an adjournment to the following morning, stating that he was in the process of securing the presence of a witness, apparently referring to Brewer. Brewer was not produced the next day when the trial reconvened, and no further reference was made to his possible appearance as a witness. Even though the defense counsel had no reason to believe that Brewer's absence would be prolonged, counsel made no application for an additional adjournment to obtain his presence. Under the circumstances, due diligence required that the defense counsel at least request a further adjournment in order to ascertain whether Brewer would be available to testify on the defendant's behalf. The record is barren of evidence that the defense counsel made any efforts during the trial to learn where Brewer was and when he would be available to testify (see, People v. Zambrana, supra; People v Barrero, 137 A.D.2d 759; People v. Hughes, 136 A.D.2d 916; People v. Penoyer, 135 A.D.2d 42, affd 72 N.Y.2d 936). Similarly, the potential testimony of the witness Trevor Barbour, against whom two felony indictments were pending at the time, was also discoverable by the exercise of due diligence, inasmuch as he and the defendant were familiar with each other from the neighborhood, had likely seen each other immediately prior to the commission of the crime at a nearby party, and had spoken at the Brooklyn House of Detention, where they were both being held during the defendant's trial (see, People v. Fielder, supra; People v. Penoyer, supra; People v. Latella, 112 A.D.2d 321).
Finally, the testimony of the witnesses offered by the defendant was not of such a character as to create the probability of a more favorable outcome, but rather, was "merely cumulative and served no other purpose than to bolster testimony previously discredited" (People v. Latella, supra, at 323; see, People v. Zambrana, supra; People v. Seneci, 133 A.D.2d 432). Mangano, P.J., Thompson, Rosenblatt and Copertino, JJ., concur.