Opinion
July 27, 1992
Appeal from the Family Court, Kings County (Palmer, J.).
Ordered that the matter is remitted to the Family Court, Kings County, to hear and report on the appellant's motion to set aside the fact-finding order on the ground of newly-discovered evidence, and the appeal is held in abeyance in the interim. The Family Court shall file its report with all convenient speed.
In the early morning hours of May 30, 1991, two police officers observed the appellant remove a handgun from his waistband and throw it over their patrol car. With the appellant was another youth, known only as "Michael", who was also taken into custody but later released. At the fact-finding hearing, the appellant maintained that the police officers had coerced him to admit that he had possessed the gun. Another witness called by the appellant testified that "Michael" confessed that he, and not the appellant, had had the gun on the night in question.
After the fact-finding hearing, the Family Court determined that the presentment agency had proven, beyond a reasonable doubt, that the appellant had committed the crimes charged. Thereafter, the appellant's counsel moved to vacate the fact-finding order and reopen the fact-finding hearing on the ground of newly-discovered evidence. The motion was denied without a hearing.
The appellant contends that the Family Court committed error when it failed to conduct an evidentiary hearing to assess the probative value of the alleged newly-discovered evidence. We agree. The record does not support the Family Court's finding that the appellant's counsel failed to exercise due diligence in procuring the alleged eyewitnesses to the crimes or discovering the true identity and whereabouts of "Michael" prior to the fact-finding hearing. A hearing is mandated when, as here, the alleged newly-discovered evidence presents a "material question of fact" (Family Ct Act § 355.2) and poses the probability that the court's prior determination of guilt would be altered in the appellant's favor (see, Family Ct Act § 355.1, 303.1; CPL 330.30; People v. Latella, 112 A.D.2d 321, 322).
We reach no other issue at this time. Balletta, J.P., Miller, Pizzuto and Santucci, JJ., concur.