People v. Di Fondi, 275 A.D.2d 1018 (N.Y. App. Div. 2000). · Go Syfert
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People v. Di Fondi, 275 A.D.2d 1018 (N.Y. App. Div. 2000). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2005 · …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 at p. 1019 ⚠ not in text
21 citation events (21 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Morales (nyappdiv, 2018-04-27)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Morales
N.Y. App. Div. · 2018 · confidence medium
Furthermore, the prosecutor gave an appropriate instruction that limited the grand jury's consideration of the challenged evidence ( see People v Davis , 83 AD3d 1210, 1212 [3d Dept 2011], lv denied 17 NY3d 794 [2011], reconsideration denied 17 NY3d 815 [2011]), and the grand jury is presumed to have followed that instruction ( see People v Farley , 107 AD3d 1295 , 1295 [3d Dept 2013], lv denied 21 NY3d 1073 [2013]; People v Di Fondi , 275 AD2d 1018, 1018 [4th Dept 2000], lv denied 95 NY2d 933 [2000]).
discussed Cited as authority (rule) People v. Camlin
N.Y. App. Div. · 2015 · confidence medium
Initially, we note that since the grand jury minutes are not part of the record, we cannot determine whether the prosecutor provided a curative instruction regarding defendant’s clothing (see People v Fells, 279 AD2d 706, 708 [2001], lv denied 96 NY2d 758 [2001]; People v Di Fondi, 275 AD2d 1018, 1018 [2000], lv denied 95 NY2d 933 [2000]).
discussed Cited as authority (rule) People v. Madison
N.Y. App. Div. · 2013 · confidence medium
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…
discussed Cited as authority (rule) People v. Madison
N.Y. App. Div. · 2013 · confidence medium
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…
discussed Cited as authority (rule) People v. Archie
N.Y. App. Div. · 2010 · confidence medium
Defendant “failed to show that the allegedly new evidence could not have been discovered earlier in the exercise of reasonable diligence” (People v Robertson, 302 AD2d 956, 958 [2003], lv denied 100 NY2d 542 [2003]; see CPL 330.30 [3]; People v McCullough, 275 AD2d 1018, 1019 [2000], lv denied 95 NY2d 936 [2000]; People v Sharpe, 166 AD2d 620, 622-623 [1990], lv denied 77 NY2d 882 [1991] ).
discussed Cited as authority (rule) Casillas v. Murray
W.D.N.Y. · 2009 · confidence medium
The statements made in a civil proceeding by one of the victims herein that were allegedly inconsistent with the victim’s testimony at this trial constitute impeaching evidence, and such evidence would not justify reversal (see, People v. Salemi, supra, at 215-216 [ 128 N.E.2d 377 ]; People v. McCullough, 275 A.D.2d 1018, 1019 [ 713 N.Y.S.2d 600 (4th Dept.2000)], lv. denied 95 N.Y.2d 936 , 721 N.Y.S.2d 612 , 744 N.E.2d 148 [ (2000) ]).
discussed Cited as authority (rule) People v. Fagan
N.Y. App. Div. · 2008 · confidence medium
It thus cannot be said that the videotape was “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 Wright, 43 AD3d 1359, 1360 [2007], lv denied 9 NY3d 1011 [2007]; People v McCullough, 275 AD2d 1018, 1019 [2000], lv denied 95 NY2d 936 [2000]).
discussed Cited "see" People v. Johnson
N.Y. App. Div. · 2023 · signal: see · confidence high
We agree with the court that the recantation evidence was not credible, and in any event it was not "of such character as to create a [*2]probability that had such evidence been received at the trial the verdict would have been more favorable to defendant" (CPL 330.30 [3]; see People v Colbert , 289 AD2d 976, 976 [4th Dept 2001], lv denied 97 NY2d 752 [2002]; People v Dukes , 106 AD2d 906, 906-907 [4th Dept 1984]; see generally People v McCullough , 275 AD2d 1018, 1019 [4th Dept 2000], lv denied 95 NY2d 936 [2000]).
cited Cited "see" McCullough v. Bennett
W.D.N.Y. · 2006 · signal: see · confidence high
See People v. McCullough, 275 A.D.2d 1018, 713 N.Y.S.2d 600 , supra. The Court of Appeals denied leave to appeal.
discussed Cited "see" People v. Diggs
N.Y. App. Div. · 2005 · signal: see · confidence high
The alleged newly discovered evidence submitted by defendant 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 McCullough, 275 AD2d 1018, 1019-1020 [2000], lv denied 95 NY2d 936 [2000]).
discussed Cited "see" People v. Roach
N.Y. App. Div. · 2003 · signal: see · confidence high
The court reviewed the documentary evidence submitted by defendant in support of his motion and properly determined that the evidence 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 McCullough, 275 AD2d 1018, 1019 [2000], lv denied 95 NY2d 936 [2000]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Peter Di Fondi
Appellate Division of the Supreme Court of the State of New York.
Sep 29, 2000.
275 A.D.2d 1018
Cited by 6 opinions  |  Published

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law § 140.25 [2]). By failing to move to dismiss the indictment within five days of his arraignment, defendant has waived his contention that he was denied his right to testify before the Grand Jury in a timely manner and thus that the indictment should be dismissed (see, CPL 190.50 [5] [c]; People v Webb, 236 AD2d 872, 873, lv denied 90 NY2d 865). Although we agree with defendant that it was improper for the prosecutor to compel him to wear his jail clothing when testifying before the Grand Jury, we conclude that the curative instructions given by the prosecutor dispelled any prejudice (see, People v Walker, 259 AD2d 1026, 1027, lv denied 93 NY2d 1029; People v Longdue, 168 AD2d 948, lv denied 77 NY2d 879). Contrary to defendant’s contention, the prosecutor’s actions did not cumulatively impair the integrity of the Grand. Jury proceedings to such a degree that defendant was prejudiced thereby (cf., People v Tomaino, 248 AD2d 944, 946-947).

We further conclude that County Court did not abuse its discretion in denying defendant’s request for an adjournment to subpoena a witness to testify at the Huntley hearing. The record establishes that defendant failed to act diligently in identifying and locating that particular witness (see, People v Singleton, 41 NY2d 402; People v Savareese, 258 AD2d 484, 485, lv denied 93 NY2d 974, 978; People v Blasini, 253 AD2d 886, 887, lv denied 92 NY2d 1028). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Burglary, 2nd Degree.) Present — Green, J. P., Pine, Hayes, Hurlbutt and Kehoe, JJ.