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cited 3× by 3 distinct cases ·
…is of such a 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. 1564
⚠ not in text
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Top citers, strongest first. 7 distinct citers.
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discussed
Cited as authority (rule)
People v. Lostumbo
The relevant evidence—i.e., deleted text messages between defendant and the victim—was not newly discovered evidence inasmuch as defendant knew about those messages prior to trial, and there was no evidence that defendant was unable to produce the messages "at the trial even with due [*3]diligence on his part" (CPL 330.30 [3]; see People v Brown , 104 AD3d 1203 , 1204 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]; cf. People v Bailey , 144 AD3d 1562, 1564 [4th Dept 2016]).
discussed
Cited as authority (rule)
People v. Thibodeau
This conflicting testimony, along with the absence of any forensic evidence tying defendant to the abduction and the absence of any eyewitness evidence identifying defendant as the perpetrator, leads me to conclude that Pierce’s testimony would probably change the result of the trial (see People v Bailey, 144 AD3d 1562, 1564 [2016]).
discussed
Cited as authority (rule)
People v. Flores-Estrada
Based upon the scientific literature and case law, it is undeniable that there exists a faction of the scientific community that challenges SBS/AHT, and that “a significant and legitimate debate in the medical community [about this issue] has developed in the past ten years” (People v Bailey, 144 AD3d 1562, 1564 [2016], supra [internal quotation marks and citation omitted]).
discussed
Cited "see"
People v. McFarland
We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence (see CPL 440.30 [6]), that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a 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 440.10 [1] [g]; see People v Bailey, 144 AD3d 1562, 1564 [2016]).
discussed
Cited "see"
MCFARLAND, RODNEY, PEOPLE v
We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence (see CPL 440.30 [6]), that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a 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 440.10 [1] [g]; see People v Bailey, 144 AD3d 1562, 1564 ).
discussed
Cited "see"
People v. McFarland
We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence (see CPL 440.30 [6]), that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a 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 440.10 [1] [g]; see People v Bailey, 144 AD3d 1562, 1564 [2016]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Eddie Washington
v.
Eddie Washington
Appellate Division of the Supreme Court of the State of New York.
Nov 10, 2016.
Der, Lindley, Nemoyer, Peradotto, Scud.
Published
Appeal by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Onondaga County Court (Thomas J. Miller, J.), entered July 1, 2015. The order denied the motion of defendant pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed for reasons stated in the decision at County Court (2015 NY Slip Op — [Onondaga County Ct 2015]).
Present—Peradotto, J.P., Lindley, NeMoyer and Scud-der, JJ.