This case is not published in a printed volume and its disposition appears in a table in the reporter.
The defendant is represented by P. Scott Default, Esq.
The People are represented by Assistant District Attorney Mahmoud Rabah
of the Queens District Attorney's Office.
Stephen A. Knopf, J.
The defendant, Sebastian Delamota, has filed a motion with this Court pursuant to CPL 330.30 (1) & (3), seeking an order of this Court setting aside his conviction and ordering a new trial. The defendant specifically argues that because of the identification that was conducted during his trial, the failure of this Court to re-open the Wade hearing during the trial, and the failure of the hearing court to suppress his pre-trial identification, his due process was violated. He also argues that as the People failed to provide him with the criminal background of a witness (now newly discovered evidence). For these reasons, the defendant claims he is entitled to a new trial. The People oppose his application in its entirety.
This indictment arose out of an incident that took place on October 27, 2006. On that date, in an elevator inside 89-21 Elmhurst Avenue, in Queens, the defendant approached the complainant, Juan Hernandez, with a knife and took personal property from him. The defendant was indicted for this incident. The defendant proceeded to trial on this matter, and was ultimately convicted of robbery in the first degree (PL 160.15 ), menacing in the second degree (PL 120.14 )and criminal possession of a weapon in the third degree (PL 265.02 ).
CPL 330.30 (1) and (3) provides, in pertinent part:
"At anytime after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
3. That new evidence has been discovered since the 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."
CPL 710.40 (4) provides:
"If after a pre-trial determination and denial of the motion the court is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, it may permit him to renew the motion before trial or, if such was not possible owing to the time of the discovery of the alleged new facts, during trial."
As noted in People v Johnson, 113 A.D.2d 900,901 (2d Dept 1985):"The power of the court to set aside a verdict on the ground of newly discovered evidence is purely a statutory creation (see, People v Salemi, 309 N.Y. 208 cert denied 350 U.S. 950; People v Suarez, 98 A.D.2d 678), and rests within the sound discretion of the trial court (see, People v Salemi, supra. People v Hazelton, 58 A.D.2d 945). In order to satisfy the statutory requirements, the evidence "1...... 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 Salemi, supra, at p 216, emphasis added; see also People v Suarez, supra)."
The defendant's claim that this Court committed error by not permitting him to re-open his pre-trial Wade hearing is without merit. See, People v Smith,134 A.D.2d 382 (2d Dept) 1987). The defendant's claim of inconsistencies that were elicited during the trial, based upon the trial testimony of Juan Hernandez Jr as compared to Detective Koch's testimony at the hearing and trial is not enough to constitute "newly discovered" evidence requiring a re-opening of this hearing. Even considering such inconsistencies, there is absolutely no basis other than utter speculation that the complainant's son in any way whatsoever influenced the photograph array identification made by the complainant warranting a ruling suppressing the complainant's identification testimony. In fact, the hearing minutes reflect that the information that comprised these inconsistencies was not new to the defendant (see hearing minutes pp. 36-37). Morever, these inconsistencies were collateral to the identification testimony provided by the complainant. See, People v Paasewe276 A.D.2d 807 (2d Dept 2000). In addition, these claimed inconsistencies between ...