People v. Graziosa

The court is unpersuaded by defendant's argument that the "newly discovered evidence" is something other than impeachment evidence. The fact that contradictory statements deal with the subject matter of an offense does not remove them from the realm of impeachment material and somehow transform them into something else. Indeed, inconsistent statements of a witness have no independent testimonial value and may not be introduced as affirmative evidence of the facts stated. (See e.g. People v Freeman, 9 NY2d 600 [1961]; see also Prince, Richardson on Evidence § 6-412, at 409 [Farrell 11th ed].) In sum, the assertions in the book are, at most, impeachment material which, in light of the amount of material which was available to defendant at trial and the skillful cross-examination conducted by defense counsel, would have been unlikely to have resulted in a more favorable verdict. In any event, the unsworn inconsistent statements which are the basis for this motion do not qualify as newly discovered evidence under the Salemi standards. Thus, in People v Casillas (289 AD2d 1063 [4th Dept 2001]), the Court affirmed the denial of a similar postverdict motion based on statements in a civil proceeding that were purportedly inconsistent with the victim's trial testimony and held such statements to be impeaching evidence, which did not justify setting aside the verdict. Similarly, the statements in this case—which are unsworn, out of court statements—do not justify the setting aside of the jury's verdict nor do they require a hearing.

The defendant's CPL 440.10 motion to vacate judgment is hereby denied. [1] This is defendant's second posttrial motion. His earlier motion pursuant to CPL 330.30 was denied by this court's opinion dated January 23, 2003 (194 Misc 2d 799). [2] Defendant makes no claim of any Brady or Rosario due process violation—a consideration present in most of the cases cited by him, in which postconviction motions based upon newly discovered evidence have been granted. (See Napue v Illinois, 360 US 264 [1959]; People v Cwikla, 46 NY2d 434 [1979]; People v Wallert, 98 AD2d 47 [1st Dept 1983]; People v Maynard, 80 Misc 2d 279 [1974].) Other cases in which such motions have been granted involve matters such as newly discovered DNA forensic evidence (People v Wise, 194 Misc 2d 481 [2002]) or evidence of psychiatric history which goes to the witness' capacity to perceive and recall events (People v Rensing, 14 NY2d 210 [1964]). [3] Marzed and Ramos also dealt with subsequently discovered criminal conduct of the People's crucial witnesses, a factor not present in this case. Additionally, while not discussed in the published opinion, Marzed presented a Giglio violation (see Giglio v United States, 405 US 150 [1972]) in that, at the time of trial, the police officer witness was under investigation by the District Attorney's Office for perjury in another, similar case, a fact that the People failed to disclose. This court notes that neither Marzed nor Ramos is a controlling appellate precedent. [4] Indeed, even in cases of outright recantation (as opposed to mere inconsistency), where the main witness against the defendant disavows his or her trial testimony in a sworn statement, appellate courts have upheld the denial of motions for a new trial. In People v Lavrick (146 AD2d 648 [2d Dept 1989]), the Court affirmed the denial of defendant's CPL article 440 motion based on an affidavit from the victim of a sexual assault in which he recanted his identification of the defendant as the perpetrator. In People v Turner (215 AD2d 703 [2d Dept 1995]), the Court affirmed the denial, without a hearing, of defendant's CPL article 440 motion based on an affidavit from the People's main witness in which he recanted his trial testimony.