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G Cite
Treatment trajectory · 1956 → 2026 · click a year to view as-of
1956
1991
2026
Top citers, strongest first. 38 distinct citers.
examined
Cited as authority (quoted)
State v. Willoughby
(2×)
the existence of jurisdiction and venue are not elements of the offense but shall be established by a preponderance of the evidence.
discussed
Cited "see"
People v. Dixon
Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of conviction on the ground that "[n]ew 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 evidenc…
discussed
Cited "see"
People v. Peasley
"It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, [among other things], that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and (6) which does not merely impeach or contradict the record evidence" ( People v Smith , 108 AD3d 1075 , 1076 [4th Dept 2013] [internal quotation marks, brackets and citation omit…
discussed
Cited "see"
People v. Smalls
To prevail on that motion, defendant was required to prove that " 'there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence' " ( People v Madison , 106 AD3d 1490, 1492 [4th Dept 2013]; see People v Salemi , 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]).
discussed
Cited "see"
People v. Howard
On a motion to vacate a judgment of conviction pursuant to CPL 440.10 (1) (g), the defendant must establish that "there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence" ( People v Smith , 108 AD3d 1075, 1076 [4th Dept 2013], lv denied 21 NY3d 1077 [2013] [internal quotation marks omitted]; see People v Salemi , 309 NY 208…
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Cited "see"
People v. Shaw
The court may vacate a defendant's judgment if the defendant shows that the newly discovered evidence fulfills all the following requirements: "(1) [i]t 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 Tucker , 40 AD3d 1213, 1214 [2007] [in…
discussed
Cited "see"
People v. Bailey
Defendant has the burden of establishing by a preponderance of the evidence every fact essential to support the motion” (People v Backus, 129 AD3d 1621 , 1623 [2015], lv denied 27 NY3d 991 [2016] [internal quotation marks omitted]; see People v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]; People v White, 125 AD3d 1372, 1373 [2015]).
discussed
Cited "see"
People v. Bailey
Defendant has the burden of establishing by a preponderance of the evidence every fact essential to support the motion” (People v Backus, 129 AD3d 1621 , 1623 [2015], lv denied 27 NY3d 991 [2016] [internal quotation marks omitted]; see People v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]; People v White, 125 AD3d 1372, 1373 [2015]).
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Cited "see"
BAILEY, RENE SUSAN, PEOPLE v
Defendant has the burden of establishing by a preponderance of the evidence every fact essential to support the motion” (People v Backus, 129 AD3d 1621, 1623 , lv denied 27 NY3d 991 [internal quotation marks omitted]; see People v Salemi, 309 NY 208, 215-216 , cert denied 350 US 950 ; People v White, 125 AD3d 1372, 1373 ).
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Cited "see"
106454 People v. Larock
However, “vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial [and d]efendant’s plea of guilty therefore foreclosed relief upon this ground” (People v Sides, 242 AD2d 750, 751 [1997] [emphasis added], lv denied 91 NY2d 836 [1997]; see People v Philips, 30 AD3d 621, 622 [2006], lv denied 8 NY3d 949 [2007]). 2 In any event, even if the affidavit were viewed as recantation evidence, which has been deemed an “extremely unreliable form of evidence” (People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882…
discussed
Cited "see"
BACKUS, CODY, PEOPLE v
Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of conviction on the ground that “[n]ew 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 evide…
discussed
Cited "see"
People v. Backus
Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of conviction on the ground that “[n]ew 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 evide…
discussed
Cited "see"
People v. Backus
Pursuant to CPL 440.10 (1) (g), a court may vacate a judgment of conviction on the ground that “[n]ew 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 evide…
discussed
Cited "see"
People v. White
“It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence” (People v Smith, 108 AD3d 1075, 1076 [2013], lv denied 21 NY3d 1077 [2013] [internal quotation marks omitted]; s…
discussed
Cited "see"
WHITE, MICHAEL, PEOPLE v
“It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” (People v Smith, 108 AD3d 1075, 1076 , lv denied 21 NY3d 1077 [internal quotation marks omitted]; see People v Sa…
discussed
Cited "see"
People v. White
“It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence” (People v Smith, 108 AD3d 1075, 1076 [2013], lv denied 21 NY3d 1077 [2013] [internal quotation marks omitted]; s…
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Cited "see"
BRYANT, MALCOLM, PEOPLE v
It is well settled that, in order to establish entitlement to a new trial on the ground of newly discovered evidence, “a defendant must prove that ‘there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence’ ” (People v Madison, 106 AD3d 1490, 1492 ; see People v Smith, 108 AD3d 1075, 1076 , lv denied 21 NY3d 1077 ; see…
discussed
Cited "see"
SMITH, CHRISTOPHER, PEOPLE v
It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence” (People v Madison, 106 AD3d 1490, 1492 [internal quotation marks omitted]; see People v Salemi, 309 NY 208, 215-2…
discussed
Cited "see"
People v. Smith
It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence” (People v Madison, 106 AD3d 1490, 1492 [2013] [internal quotation marks omitted]; see People v Salemi, 309 NY 20…
discussed
Cited "see"
People v. Smith
It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence” (People v Madison, 106 AD3d 1490, 1492 [2013] [internal quotation marks omitted]; see People v Salemi, 309 NY 20…
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Cited "see"
People v. Madison
To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence” (People v Wainwright, 285 AD2d 358, 360 [2001]; see People v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]; People v McCullough, 275 AD2d 1018, 1019 [2000], lv denied…
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Cited "see"
MADISON, ALONZO, PEOPLE v
To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence” (People v Wainwright, 285 AD2d 358, 360 ; see People v Salemi, 309 NY 208, 215-216 , cert denied 350 US 950 ; People v McCullough, 275 AD2d 1018, 1019 , lv denied 95 NY2d 936 ).
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Cited "see"
People v. Madison
To set aside a verdict pursuant to CPL 330.30 (3), a defendant must prove that “there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and, (6) which does not merely impeach or contradict the record evidence” (People v Wainwright, 285 AD2d 358, 360 [2001]; see People v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]; People v McCullough, 275 AD2d 1018, 1019 [2000], lv denied…
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Cited "see"
People v. Corchado
The court properly determined that the testimony submitted by defen dant in support of that motion was not “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” (CPL 330.30 [3]; see People v Salemi, 309 NY 208, 215-216 , cert denied 350 US 950 ; People v Epps, 284 AD2d 996, 997 ).
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Cited "see"
People v. Epps
The information submitted by defendant in support of the motion was not competent evidence and, in any event, was 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 the defendant” (CPL 330.30 [3]; see, People v Salemi, 309 NY 208, 215-216 , cert denied 350 US 950 ).
discussed
Cited "see"
People v. Fisher
Additionally, the defendant failed to establish that the evidence “could not have been produced by the defendant at the trial” (GPL 330.30 [3]; see, People v Salemi, 309 NY 208 , cert denied 350 US 950 ; People v Rivera, 118 AD2d 877 ).
discussed
Cited "see"
People v. Hamilton
Contrary to the defendant’s contentions, the court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction based on newly discovered evidence, inasmuch as, among other things, he failed to submit adequate proof that the alleged newly discovered evidence could not have been produced by the defense at the trial with due diligence (see, CPL 440.10 [1] [g]; 440.30 [1], [6]; see, People v Salemi, 309 NY 208, 216 , cert denied 350 US 950 ; People v Priori, 164 NY 459, 472 ; People v Gurley, 197 AD2d 534, 535 ).
cited
Cited "see"
People v. Coleman
Accordingly it does not suffice to justify setting aside the verdict (CPL 330.30; see, People v Salemi, 309 NY 208 , cert denied 350 US 950 ).
discussed
Cited "see"
United States Ex Rel. Conomos v. LaVallee
See People v. Salemi, 309 N.Y. 208, 215 , 128 N.E.2d 377 (1955), cert. denied, 350 U.S. 950 , 76 S.Ct. 325 , 100 L.Ed. 827 (1956) ; People v. Patrick, 182 N. Y. 131, 178 , 74 N.E. 843 (1905), appeal dismissed, 203 U.S. 602 , 27 S.Ct. 783 , 51 L.Ed. 335 (1906) ; People v. Watford, 19 A.D.2d 731 , 242 N.Y.S.2d 369, 371 (2d Dep’t 1963) ; People v. Lesser, 280 App.Div. 441 , 113 N.Y.S.2d 558, 559 (1st Dep’t 1952), aff’d, 304 N.Y. 903 , 110 N.E.2d 734 , cert. denied, 346 U.S. 840 , 74 S.Ct. 65 , 98 L.Ed. 361 (1953). 32 .
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Cited "see"
Frashier v. State
See Williams v. State, 210 Ga. 665 (82 *594 SE2d 217), cause remanded, 349 U. S. 375 (75 SC 814, 99 LE 1161), adhered to 211 Ga. 763 ( 88 SE2d 376 ), cert. den., 350 U. S. 950 (76 SC 326, 100 LE 828), reh. den., 350 U. S. 977 (76 SC 443, 100 LE 847).
discussed
Cited "see, e.g."
People v. Holguin
In any event, defendant failed to show that the testimony of an allegedly exculpatory witness was "of such character as to create a probability that had [it] been received at the trial the verdict would have been more favorable" (CPL 440.10 [1] [g]; see also People v Salemi , 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]).
discussed
Cited "see, e.g."
People v. Bailey
In terms of pediatricians, I can only state what they said in 2008 or 2009, which is that they have changed the name from Shaken Baby Syndrome to Abusive Head Trauma because shaking was too narrow a definition of a mechanism of injury.” Conclusions of Law The power to vacate a judgment of conviction upon the ground of newly discovered evidence and concomitantly grant a new trial rests within the discretion of the hearing court (see People v McFarland, 108 AD3d 1121 [4th Dept 2013]; see also People v Tankleff, 49 AD3d 160, 178 [2d Dept 2007], citing People v Salemi, 309 NY 208, 215 [1955], ce…
cited
Cited "see, e.g."
State v. Butler
See, e.g., People v. Cavanaugh, 44 Cal.2d 252, 262 , 282 P.2d 53, 59 (1955) , cert. denied, 350 U.S. 950 , 76 S.Ct. 325 , 100 L.Ed. 828 (1956) .
discussed
Cited "see, e.g."
People v. Grotto
CPL 440.10 (1) (g) it was his burden to show, among other things, that the proffered evidence was in fact newly discovered, i.e., that it was not discovered until after trial and could not have been discovered before trial with the exercise of due diligence, and is sufficiently probative to likely change the result if a new trial is granted (see, People v Willard, 226 AD2d 1014, 1020 , lv dismissed 88 NY2d 943 , lv denied 88 NY2d 981 ; People v Gurley, 197 AD2d 534, 535 ; see also, People v Salemi, 309 NY 208 , cert denied 350 US 950 ).
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Cited "see, e.g."
State v. Smith
Compare United States v. White, 611 F.2d 531, 534 (5th Cir.), cert. denied 446 U.S. 992 , 100 S.Ct. 2978 , 64 L.Ed.2d 849 (1980) (jurisdiction not element of offense and may be proved by preponderance of evidence) and People v. Cavanaugh, 44 Cal.2d 252, 262 , 282 P.2d 53, 59 , cert. denied 350 U.S. 950 , 76 S.Ct. 325 , 100 L.Ed. 828 (1955) (jurisdiction may be proved by preponderance of evidence), with State v. Baldwin, 305 A.2d 555, 559 (Me.1973) (while jurisdiction is not element of offense, it must be proved beyond a reasonable doubt even though not constitutionally required), and State v. …
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Cited "see, e.g."
State v. Howerton
See, e.g., State v. Thomas, 79 Ariz. 158 , 285 P.2d 612 (1955), cert. denied, 350 U.S. 950 , 76 S.Ct. 326 , 100 L.Ed. 828 (1956); People v. Johnson, 32 Cal.App.3d 988 , 109 Cal.Rptr. 118 (1973); State v. Linn, 93 Idaho 430 , 462 P.2d 729 (1969); People v. Cox, 85 Mich. App. 314 , 271 N.W.2d 216 (1978); State v. Lindemuth, 56 N.M. 257 , 243 P.2d 325 (1952); Annot., 23 A.L.R.2d 1306 (1952).
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Cited "see, e.g."
People v. Scarincio
Newly discovered evidence necessitates a new trial where, inter alia, the finder of fact concludes that its introduction at a new trial would probably change the verdict (see, People v Powell, 96 AD2d 610 ; see also, People v Salemi, 309 NY 208 , cert denied 350 US 950 ).
cited
Cited "see, e.g."
United States v. Robinson
Compare Reusing with People v. Salemi, 309 N.Y. 208 , 128 N.E.2d 377 (1955), cert. den. 350 U.S. 950 , 76 S.Ct. 325 , 100 L.Ed. 827 (1956).
March
v.
New York
v.
New York
No. 225.
Supreme Court of the United States.
Jan 16, 1956.
350 U.S. 950
Published
Citer courts: Arizona Supreme Court (2)
Appellate Division of the Supreme Court of New York, Second Judicial Department. Certiorari denied.