N.Y. Crim. Proc. Law § 440.10

Section 440.10(1)(g) does not warrant vacating a judgment for expert testimony that could have been discovered before trial through due diligence, is cumulative, and is unlikely to change the outcome.

People v. Powell · filed 1981-07-23(1)(g)

Since it is unlikely that such expert testimony would have changed the outcome of the trial, and, further, since the evidence was available before the trial and could have been discovered by the exercise of due diligence and, still further, since the testimony would have been cumulative to the issue of defendant’s relationship with her ex-husband, we are of the view that the trial court properly denied defendant’s motion (see People v Salemi, 309 NY 208, 215-216).

Section 440.10(1)(g) permits a motion to vacate a judgment based on newly discovered evidence that would probably change the result of a new trial.

People v. Shaw · filed 1983-02-03(1)(g)

Not only was Johnston’s statement not “newly-discovered” evidence contemplated by CPL 440.10 (subd 1, par [g]), it also is not such evidence “ ‘as will probably change the results if a new trial is granted’ ” (People v Salemi, 309 NY 208, 215-216; People v Santiago, 88 AD2d 665; People v .Crandall, 51 AD2d 841, 843).

Section 440.10(1)(g) requires newly discovered evidence to create a probability of a different verdict to support vacating a conviction.

People v. Porter · filed 1983-04-28(1)(g)

While such a strategy might have been advantageous to defendant, we cannot say that use of the newly discovered evidence would create a probability that the verdict returned would be different (CPL 440.10, subd 1, par [g]; see People v Powell, 83 AD2d 719).

Section 440.10(1)(g) does not permit vacating a conviction based on newly discovered evidence that would only impeach a witness.

People v. Wood · filed 1983-05-12(1)(g)

To be newly discovered evidence, the evidence must be more than impeaching testimony (People v Salemi, 309 NY 208, cert den 350 US 950). The testimony of a witness who overheard an admission of the burglary and theft by the witness Seymour, even if believed, would not absolve defendant of unlawful possession of the stolen articles. At most, it would bear on Seymour’s credibility as a witness and this is an insufficient basis on which to grant a new trial (People v Wagner, 51 AD2d 186).

Section 440.10(1)(g) does not warrant vacating a conviction when newly discovered evidence merely contradicts or impeaches trial testimony and probably would not produce a more favorable verdict.

People v. Powell · filed 1983-07-07(1)(g)

Defendant has moved, pursuant to CPL 440.10 (subd 1, par [g]), to vacate the judgment of conviction on the basis of newly discovered evidence. County Court denied the motion after a hearing and we granted permission to appeal. Since the newly discovered evidence is merely contradictory and impeaching of testimony presented at the trial, and since the evidence is not of such a character that it is probable the jury would have returned a verdict more favorable to defendant, we affirm County Court’s denial of defendant’s motion (see People v Salemi, 309 NY 208, 216; People v Wagner, 51 AD2d 186, 188-189).

Section 440.10(1)(g) requires newly discovered evidence to satisfy six criteria, including a probable effect on the result and that it be more than merely impeaching or contradicting earlier evidence.

People v. Balan · filed 1985-01-28(1)(g)

To be considered “newly-discovered” so as to support a motion to vacate a judgment of conviction pursuant to CPL 440.10 (subd 1, par [g]), the evidence in question must meet the six criteria set out in ... specifically: “1. It must be such as will probably change the result if a new trial is granted; ... 6. It must not be merely impeaching or contradicting the former evidence”.

Section 440.10(1)(g) requires newly discovered evidence to be likely to change the verdict at a new trial before it warrants a new trial.

People v. Scarincio · filed 1985-03-07(1)(g)

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).

A motion to vacate based on newly discovered evidence requires a hearing when the issues raised are sufficiently unusual to warrant searching investigation.

People v. Turner · filed 1985-05-02(1)(g)

We agree. In People v Crimmins (38 NY2d 407,416), the Court of Appeals instructed that, with respect to CPL article 440 applications based upon newly discovered evidence, “a hearing should be held to promote justice if the issues raised by the motion are sufficiently unusual and suggest searching investigation” (see also, People v Ausserau, 77 AD2d 152). A review of the record in light of the above instruction leads us to the conclusion that a hearing must be held.

Section 440.10(1)(g) permits vacatur for newly discovered evidence only after a guilty verdict at trial, so it does not apply to a conviction entered on a guilty plea.

People v. Latella · filed 1985-07-15(1)(g)

The applicability of this provision is expressly conditioned upon the existence of a verdict of guilty rendered after trial.

Section 440.10(1)(g) permits a new trial when evidence unavailable despite due diligence would probably have produced a more favorable verdict, even if it bears on a key witness’s credibility.

People v. Ramos · filed 1985-10-23(1)(g)

The difficulty, and ultimate failure, of both counsel and the court, in obtaining reliable and complete information about Halstead, demonstrates that even with due diligence, the defendant could not at trial have produced the evidence outlined herein. ... The statute requires that the "newly discovered evidence” create a probability that, had it been adduced at trial, the verdict would have been more favorable to the defendant. ... Evidence to rebut this difference in credibility would, in my view, have probably affected the jury’s verdict in the defendant’s favor. Therefore, a new trial should be granted.

Section 440.10(1)(g) requires new evidence to create a probability of a more favorable verdict before it warrants vacatur or a hearing.

People v. Hoard · filed 1985-10-24(1)(g)

For new evidence to warrant vacatur of the judgment, or even a hearing on the CPL 440.10 motion, it must be "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 440.10 [1] [g]).

Section 440.10(1)(g) requires newly discovered evidence that due diligence could not have produced at trial and that probably would have led to a more favorable verdict.

People v. Rivera · filed 1986-04-22(1)(g)

The burden in either case is on the defendant to demonstrate that the evidence now sought to be introduced is "newly discovered”, could not have been produced at trial even with due diligence on the part of the defendant, and is of such character that had it been received at the trial it is probable that the verdict would have been more favorable to the defendant (CPL 330.30 [3]; 440.10 [1] [g]).

Section 440.10(1)(g) permits vacatur based on new evidence only if the defendant could not have produced it at trial with due diligence.

People v. Craft · filed 1986-09-25(1)(g)

Under the foregoing circumstances, this exculpatory material did not qualify as "[n]ew evidence * * * discovered since the entry of a judgment * * * which could not have been produced by the defendant at the trial even with due diligence” to support vacatur of the judgment (CPL 440.10 [1] [g]; see, People v Balan, 107 AD2d 811, 814-815; People v Wagner, 51 AD2d 186, 189).

Newly discovered evidence must meet the applicable criteria to warrant vacating a judgment under CPL 440.10.

People v. Anfossi · filed 1986-12-01

As to the denial of the defendant’s CPL 440.10 motion to vacate the judgment on the ground of newly discovered evidence, the record indicates that the evidence in question did not meet the criteria set forth in People v Salemi (309 NY 208, 216, citing People v Priori, 164 NY 459, 472) (see, People v Balan, 107 AD2d 811, 814-815). Therefore, the trial court properly denied the motion.

Section 440.10(1)(g) requires due diligence in seeking to vacate a judgment based on newly discovered evidence.

People v. Stuart · filed 1986-12-22(1)(g)

The motion, which was predicated upon the ground of newly discovered evidence (see, CPL 440.10 [1] [g]), was made more than one year after the discovery of the purported new evidence, thereby supporting the County Court’s determination that the motion was not made with due diligence (see, CPL 440.10 [1] [g]).

Section 440.10(1)(g) allows a conviction to be vacated for newly discovered evidence that could not have been produced at trial with due diligence and probably would have led to a more favorable verdict.

People v. Hildenbrandt · filed 1986-12-24(1)(g)

Initially, we hold that defendant did establish that the testimony of the eyewitness could not have been produced by him with due diligence. ... Next, we are of the view that a hearing should have been held on the issue of whether the witness’s testimony is of such character as to create a probability that had it been received at trial the verdict would have been more favorable to defendant.

Section 440.10(1)(g) does not warrant vacating a judgment for newly discovered evidence that is unlikely to produce a different verdict.

People v. Green · filed 1987-12-07(1)(g)

The defendant claims that his cousin’s admission, made subsequent to the trial, that it was he and not the defendant that had broken the jeep’s window with a rock, was new evidence which met the criteria of CPL 440.10 (1) (g) for vacating the judgment. First, the admission is of dubious authenticity in that it was made one week after the expiration of the Statute of Limitations for the crime. Second, the defendant’s conviction was based on the testimony of two eyewitnesses and a police officer who testified that the defendant admitted breaking the jeep’s windows. In view of that fact, it is unlikely that the "new evidence” would result in a different verdict (see, People v Latella, 112 AD2d 321).

Section 440.10(1)(g) permits a motion to vacate based on newly discovered evidence, including evidence that was excluded at trial and remained outside the appellate record.

People v. Douglas · filed 1987-12-15(1)(g)

As to this procedural barrier, we hold that under CPL 440.10 (1) (g), the affidavit of the Federal prosecutors constitutes newly discovered evidence which should be available in testimonial form at a hearing together with other available proof.

Section 440.10(1)(g) does not warrant vacating a judgment based on evidence that merely impeaches a witness and is unlikely to change the result.

People v. Miles · filed 1988-01-29(1)(g)

The evidence concerning Evans’ incarceration and her alleged receipt of favorable treatment in return for her testimony against defendant was not newly discovered evidence; it would have merely impeached her as a witness and was not likely to lead to a different result (CPL 440.10 [1] [g]).

Section 440.10 does not warrant vacating a conviction based on purported newly discovered evidence that is cumulative or duplicative of evidence presented at trial.

People v. Villone · filed 1988-03-04(1)(g)

Order unanimously affirmed. Memorandum: Supreme Court properly denied defendant’s motion made pursuant to CPL 440.10 to set aside the conviction on the grounds of newly discovered evidence and ineffective assistance of counsel. ... For the most part, defendant’s purported newly discovered evidence is either cumulative or duplicative of the evidence produced at the trial.

Section 440.10(1)(g) does not support relief based on evidence that was not newly discovered.

People v. Donovan · filed 1988-06-27(1)(g)

In any event, it is clear that the argument is meritless because the ... evidence was not newly discovered (see, CPL 440.10 [1] [g]; People v Rivera, 108 AD2d 829; People v Suarez, 98 AD2d 678).

Section 440.10(1)(g) permits harmless error analysis when a motion relies on newly discovered Rosario material.

People v. Mancuso · filed 1988-08-16(1)(g)

The portion of defendant’s motion based on the prosecution’s failure to provide him with Rosario material falls within the purview of CPL 440.10 (1) (g). That provision dealing with motions based on newly discovered evidence does allow for a "harmless error" analysis.

Section 440.10(1)(g) does not warrant vacatur for newly discovered evidence that would not have changed the trial result.

People v. Miller · filed 1988-11-23(1)(g)

However, even were we to accept defendant’s argument that this testimony could not have been discovered prior to trial, it was nevertheless not of such a nature that had it been received at trial the result would have been different (see, CPL 440.10 [1] [g]; People v Crandall, 51 AD2d 841, 843).

Section 440.10 permits a new trial based on newly discovered evidence only when the evidence could not have been found before trial with due diligence, is material and noncumulative, goes beyond impeachment, and would probably change the result.

People v. Clerkin · filed 1988-11-28

Similarly unavailing is the defendant’s contention that his discovery of new evidence warranted vacatur of the judgment of conviction pursuant to CPL 440.10 and the granting of a new trial. In order to be considered newly discovered evidence sufficient to warrant the granting of a new trial, the evidence must (1) be such as would probably change the result if a new trial were granted, (2) have been discovered since the trial, (3) be such as could not have been discovered prior to trial by the exercise of due diligence, (4) be material to the issues, (5) not be cumulative, and (6) not merely impeach or contradict the former evidence (see, People v Salemi, 309 NY 208, 216, cert denied 350 US 950; People v Seneci, 133 AD2d 432, 433, lv denied 70 NY2d 1011). The evidence proffered in the instant case could have been discovered prior to trial by the exercise of due diligence, and in any event, was largely cumulative and of impeachment value only.

Newly discovered evidence must be likely to change the result at a new trial and cannot merely impeach earlier testimony.

People v. Lavrick · filed 1989-01-17(1)(g)

In view of the strong and persuasive evidence of guilt presented at the defendant’s trial, we do not believe that the victim’s partial recantation, which, in any event, merely impeaches his prior testimony, would change the result were a new trial to be granted.

Section 440.10 does not permit vacatur based on evidence that could have been discovered with due diligence before trial.

People v. Leon · filed 1989-03-27

In addition, we find no merit to the defendant’s challenge to the denial of his motion, pursuant to CPL 440.10, to vacate the judgments of conviction on the ground of newly discovered evidence. ... Therefore, it cannot be said that such evidence could not have been discovered with due diligence prior to trial.

Section 440.10(1)(g) requires newly discovered evidence to be credible to support vacating a judgment.

People v. Greene · filed 1989-05-15(1)(g)

The defendant’s next contention is that the court improperly denied his motion pursuant to CPL 440.10 (1) (g) to vacate the judgment. We agree with the court’s denial of the motion. The hearing court properly held that the newly discovered evidence, in the form of testimony by defense witness Debbie Nelson, was incredible and as such did not meet the standard necessary for success on the motion.

Section 440.10 requires newly discovered evidence to satisfy six criteria before it can support vacating a conviction.

People v. Yoli · filed 1989-05-22

In order for evidence to be considered newly discovered, within the meaning of the statute, six criteria must first be satisfied. ... While it is clear that the defendant could not have discovered such evidence prior to his trial, the remaining criteria have not been satisfied.

Section 440.10(1)(g) does not treat a codefendant’s previously unavailable testimony as newly discovered evidence when the defendant already knew its substance at trial.

People v. Huggins · filed 1989-05-25(1)(g)

Accordingly, this court, consistent with the cited Federal decisions, held that Crawford’s previously "unavailable” testimony did not constitute "newly discovered evidence” as these terms are used in CPL 440.10 (1) (g).

Section 440.10(1)(g) requires a defendant relying on newly discovered evidence to show that due diligence could not have uncovered it earlier and that it would likely produce a more favorable verdict on retrial.

People v. Civitello · filed 1989-07-13(1)(g)

Regarding the newly discovered evidence claim, our review of the record reveals defendant’s failure both to establish that the evidence of Le Mieux’s alleged prior drug sales could not, with due diligence, have been discovered previously ... and that this purported new evidence was likely to result in a more favorable verdict upon retrial (see, CPL 440.10 [1] [g]; People v Miller, 144 AD2d 867; People v Latella, 112 AD2d 321, 323).

Newly discovered evidence must do more than merely impeach or contradict trial evidence to warrant vacating a conviction under § 440.10.

People v. Legette · filed 1989-08-28(1)(g)

It has been held that in order to constitute newly discovered evidence warranting a new trial, the evidence proffered must, inter alia, do more than merely impeach or contradict the former evidence (see, People v Salemi, 309 NY 208, cert denied 350 US 950; People v Clerkin, 144 AD2d 684, 685; People v Seneci, 133 AD2d 432).

Section 440.10 permits a judgment to be vacated for newly discovered evidence when that evidence would change the result at a new trial.

People v. Turner · filed 1989-10-06(1)(g)

The court did not err in denying defendant’s motion to vacate its judgment of June 1, 1981 upon the ground of newly discovered evidence (see, CPL 440.10). In view of the overwhelming proof of defendant’s guilt, it cannot be said that the "newly discovered evidence” is of such character that it would change the result if a new trial were granted (People v Salemi, 309 NY 208, 215, cert denied 350 US 950).

Section 440.10 does not warrant vacating a judgment when newly discovered evidence merely contradicts or impeaches trial testimony and is unlikely to produce an acquittal.

People v. Rodriguez · filed 1989-11-09(1)(g)

Finally, with regard to defendant’s contention that the trial court abused its discretion when it denied his motion to vacate the judgment of conviction pursuant to CPL 440.10 on the basis of newly discovered evidence, and the People’s alleged failure to disclose Brady material, we find that the newly discovered evidence was merely contradictory and impeaching of testimony presented at the trial and was not of such a character that it was probable that the jury would have returned a verdict of acquittal, and we accordingly affirm that order also.

Section 440.10(1)(g) requires newly discovered evidence to have been undiscoverable through due diligence before trial and likely to change the trial’s result.

People v. Beckett · filed 1990-06-22(1)(g)

The court properly denied defendant’s motion for a new trial based on the ground of newly discovered evidence (CPL 440.10 [1] [g]) because the memorandum on which defendant relies could have been discovered by due diligence prior to trial and would not have been likely to change the result of the trial in any event (see, People v Salemi, 309 NY 208, 216, cert denied 350 US 950).

Section 440.10 requires a defendant seeking to vacate a conviction based on newly discovered evidence to show that the evidence would probably change the result and could not have been discovered before trial through due diligence.

People v. Garcia · filed 1990-10-04

A defendant is entitled to vacate his judgment of conviction on the basis of "newly discovered evidence” if he demonstrates, inter alia, that it is probable that the new evidence will probably change the result if a new trial is granted, and that the new evidence could not have been discovered prior to trial by the exercise of due diligence.

Section 440.10(1)(g) requires a claimed new defense to have been undiscoverable before trial through due diligence.

People v. Vitanza · filed 1990-11-29(1)(g)

As for defendant’s argument that the existence of her mental condition was newly discovered evidence, upon review of all evidence submitted, we are not persuaded that this potential defense could not have been discovered prior to trial with the exercise of due diligence (see, CPL 440.10 [1] [g]; People v Civitello, 152 AD2d 812, lv denied, 74 NY2d 947).

Section 440.10 does not permit vacatur based on newly discovered evidence that consists only of attempted impeachment of prosecution witnesses.

People v. Clark · filed 1991-01-03

Defendant’s appeal also extends, by permission, to the denial by Supreme Court of his motion to vacate the judgment of conviction, pursuant to CPL 440.10, on the ground of newly discovered evidence. However, our examination reveals that the evidence offered by defendant in support of that motion was not "newly discovered” under the definition restated in People v Latella (112 AD2d 321). Such evidence consisted only in the attempted impeachment of prosecution witnesses and, as such, does not qualify as "newly discovered”.

A motion to vacate a conviction based on newly discovered evidence must satisfy six requirements, including due diligence and a probability that the evidence would change the result at a new trial.

People v. Paris · filed 1991-03-20(1)(g)

To do so, the evidence relied upon (1) must be such as will probably change the result if a new trial is granted; (2) must have been discovered since the trial; (3) must be such as could have not been discovered before the trial by the exercise of due diligence; (4) must be material to the issue; (5) must not be cumulative to the former issue; and (6) must not merely impeach or contradict the former evidence.

Section 440.10(1)(g) permits vacatur for newly discovered evidence; DNA analysis unavailable at trial is not necessarily merely contradictory of earlier evidence.

People v. Callace · filed 1991-06-27(1)(g)

However we need not reach the issue of the courts’ "inherent power” since there is authority in the statute to vacate a judgment of conviction on the grounds of newly discovered evidence (CPL 440.10 [1] [g]). ... The court does not agree that this evidence would be merely contradictory of existing evidence.

Section 440.10(1)(g) permits vacatur when newly discovered evidence could not have been produced at trial with due diligence and probably would have produced a more favorable verdict.

People v. Dabbs · filed 1991-11-07(1)(g)

The court, therefore, finds that defendant has met the standard for vacatur under CPL 440.10 (1) (g) based upon newly discovered evidence (see also, CPL 440.10 [5] [a]). The DNA analysis could not have been produced at trial with due diligence and it is of such character as to create a probability that had such evidence been received at trial the verdict would have been favorable to defendant because it would have strongly impeached the credibility of the victim’s identification.

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the verdict would have been more favorable to the defendant had the evidence been received at trial.

People v. Cruz · filed 1992-02-27(1)(g)

In any event, the hearing testimony was not of such character as to create a probability that had it been received at trial the verdict would have been more favorable to defendant (CPL 440.10 [1] [g]; People v Salemi, 309 NY 208, cert denied 350 US 950).

Newly discovered evidence does not warrant vacating a conviction under CPL 440.10(1)(g) unless it would probably change the result.

People v. Milea · filed 1992-06-29(1)(g)

Relying on a post-reversal affidavit of the codefendant, who now attests that the crimes were committed by two men whom no trial witness placed at the scene, the defendant seeks to vacate his conviction on the ground of "newly discovered” evidence (see, CPL 440.10 [1] [g]). ... We agree with the Supreme Court that the evidence on which the defendant now relies contradicts some of the trial evidence but would not "probably change the result” (People v Salemi, 309 NY 208, 216, cert denied 350 US 950).

A motion under § 440.10(1)(g) may be denied without a hearing when the defendant offers no new evidence.

People v. Wesley · filed 1992-10-22(1)(g)

Inasmuch as defendant proffered no "new” evidence to support his April 8, 1990 postconviction motion pursuant to CPL 440.10 (1) (g) to set aside the verdict, the motion was properly denied without a hearing.

A codefendant’s affidavit may qualify as newly discovered evidence under section 440.10(1)(g) when the codefendant previously exercised the right not to testify.

People v. Beach · filed 1992-10-29(1)(g)

Contrary to County Court’s determination, the affidavit of a codefendant who had previously exercised his 5th Amendment right not to testify may constitute newly discovered evidence (see, People v Fields, 66 NY2d 876; People v Stokes, 83 AD2d 968; People v Pollock, 67 AD2d 608, affd 50 NY2d 547).

Section 440.10(1)(g) does not provide relief based on documents available at the suppression hearing.

People v. McGourty · filed 1992-12-03(1)(g)

Defendant’s final contention, that County Court erred in denying his CPL 440.10 motion without a hearing because there are insufficient facts in the record to explain why the application and the statement of Marotto are in the same handwriting, is also without merit. Defendant furnished no new evidence on his motion inasmuch as both documents were available at the time of the suppression hearing (see, People v Vitanza, 167 AD2d 763, 764-765, lv denied 77 NY2d 845; see also, CPL 440.10 [1] [g]).

Section 440.10(1)(g) does not require vacatur of a probation violation determination merely because the underlying criminal charges were dismissed.

People v. Schneider · filed 1992-12-10(1)(g)

We further conclude that County Court properly denied defendant’s CPL 440.10 (1) (g) motion to vacate based on newly discovered evidence. Evidence that the underlying charges have been dismissed does not require vacatur of the probation violation determination, as a conviction on the underlying charges was not needed but, rather, the People were only required to prove by a preponderance of the evidence that defendant committed the acts alleged in the underlying charges.

Section 440.10 does not warrant vacating a judgment based on evidence that due diligence could have uncovered before trial.

People v. Marinaccio · filed 1993-02-16(1)(g)

We further find that the trial court’s denial of the defendant’s motion pursuant to CPL 440.10 constituted a proper exercise of discretion. It is clear that the defendant could have, with due diligence, discovered the purported “newly discovered evidence” — consisting of the additional testimony of a defense witness — prior to the trial.

A motion under Section 440.10 based on newly discovered evidence may be denied without a hearing when the proffered evidence does not justify vacating the conviction.

People v. Baxley · filed 1993-06-14

Under the circumstances of this case, it cannot be said that the trial court improvidently exercised its discretion in denying the motion to set aside the verdict without a hearing. ... Guided by the foregoing principles, neither the recantation evidence nor the other evidence proffered by the defendant in support of the motion justified setting aside the defendant’s judgment of conviction.

Section 440.10(1)(g) allows a conviction to be vacated for evidence discovered after trial that would probably change the result, could not have been found earlier with due diligence, is material, and is neither cumulative nor merely impeaching or contradictory.

People v. Gurley · filed 1993-10-04(1)(g)

To be considered "newly discovered” evidence sufficient to warrant vacating a judgment of conviction pursuant to CPL 440.10 (1) (g), the evidence in question must meet the six criteria set forth in People v Salemi (309 NY 208, 216, cert denied 350 US 950, citing People v Priori, 164 NY 459, 472), specifically, (1) it 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.

Section 440.10(1)(g) requires a motion based on newly discovered evidence to be made with due diligence after discovery and requires evidence that probably would have produced a more favorable verdict.

People v. Boyette · filed 1994-02-07(1)(g)

Further, the defendant was required to show that the motion was made "with due diligence after the discovery of the alleged new evidence” (CPL 440.10 [1] [g]). ... We find that the defendant’s motion was not made with "due diligence” following the discovery of the purportedly new evidence. We further find that a hearing was not warranted and that, neither in his papers nor upon the hearing, did the defendant establish that his proffered evidence would have affected the verdict, or would even have been admissible at trial.

Section 440.10(1)(g) requires a defendant seeking relief based on newly discovered evidence to show that due diligence could not have uncovered it before trial.

People v. Lent · filed 1994-05-19(1)(g)

We find that defendant’s claim of newly discovered evidence lacks substance due to his failure to establish that such evidence could not, with due diligence, have been discovered prior to trial (see, People v Civitello, 152 AD2d 812, 814, lv denied 74 NY2d 947).

A motion to vacate based on newly discovered evidence must be made with due diligence.

People v. Wright · filed 1994-07-28(1)(g)

Additionally, this aspect of the CPL 440.10 motion to vacate cannot be said to have been made with due diligence (CPL 440.10 [1] [g]). It was known at the trial that Washington received immunity from prosecution when he testified before the Grand Jury before the indictment was returned. The delay was significant and unexplained.

Section 440.10(1)(g) provides a way to seek review of newly discovered evidence outside the trial record.

People v. Ransome · filed 1994-08-22(1)(g)

We note that the materials the defendant has submitted in support of her contention that there is newly discovered evidence that would likely have resulted in a different verdict are not properly before this Court. Since these materials are dehors the record, review thereof must be obtained pursuant to CPL article 440 (see, CPL 440.10 [1] [g]; see, e.g., People v Garner, 99 AD2d 596).

Evidence that merely impeaches or contradicts earlier evidence does not qualify as newly discovered evidence warranting a new trial under CPL 440.10(1)(g).

People v. Pineda · filed 1994-09-26(1)(g)

Initially, we note that the police officer’s failure to recall certain details did not constitute newly discovered evidence warranting a new trial. In order to constitute such evidence it must do more than merely impeach or contradict the former evidence (see, People v Salemi, 309 NY 208, cert denied 350 US 950; People v Baxley, 194 AD2d 681).

Section 440.10(1)(g) requires newly discovered evidence and a motion made with due diligence after its discovery.

People v. Brown · filed 1994-10-06(1)(g)

Therefore, any allegations relating to failure to give the defendant notice of scientific tests as they related to the saliva swabs so as to make them "New evidence” under section 440.10 are refuted and discounted. In addition, even if defendant’s allegations were accurate, defendant must under section 440.10 bring a motion with "due diligence.”

Section 440.10(1)(g) requires a defendant relying on new evidence to show that it will probably change the trial result.

People v. Cutting · filed 1994-12-29(1)(g)

Under CPL 440.10 (1) (g) defendant must show, inter alia, that the new evidence will probably change the result of the trial (see, People v Gurley, 197 AD2d 534). In this case we find no possibility of prejudice or probability that the outcome would have been different, absent the misconduct.

Section 440.10(1)(g) permits vacatur based on newly discovered evidence only when the evidence meets the applicable criteria, including a probability that it would change the verdict on retrial.

People v. Bryce · filed 1994-12-29(1)(g)

Defendant next contends that he is entitled to vacatur of the judgment based on newly discovered evidence (see, CPL 440.10 [1] [g]). ... We find that defendant has failed to satisfy these criteria.

Section 440.10(1)(g) requires newly discovered evidence to create a reasonable probability of a more favorable verdict to warrant a new trial.

People v. Vasquez · filed 1995-09-19(1)(g)

Lastly, with respect to this issue, we note that on a motion for a new trial pursuant to CPL 440.10 (1) (g) based upon newly discovered evidence, it must be shown that the new evidence creates a reasonable probability of a more favorable verdict.

Section 440.10(1)(g) permits vacatur based on a newly discovered witness when the defendant proves that the testimony probably would have produced a more favorable verdict.

People v. Goodell · filed 1995-11-15(1)(g)

Defendant did not carry his burden at the hearing of proving by a preponderance of the evidence that the verdict probably would have been more favorable to him had the testimony of that witness been presented at trial (see, CPL 440.10 [1] [g]; 440.30 [6]; see also, People v Rodriguez, 193 AD2d 363, 365-366, lv denied 81 NY2d 1079).

A previously unknown misdemeanor conviction does not warrant vacatur under CPL 440.10(1)(g) when it would not probably change the trial result.

People v. Major · filed 1995-12-14(1)(g)

The victim’s 1985 misdemeanor conviction for attempted offering of a false instrument for filing, of which the parties were unaware at the time of trial and which the victim denied on the witness stand, did not constitute "newly discovered evidence” sufficient to warrant vacatur of the judgment (see, People v Salemi, 309 NY 208, 215-216, cert denied 350 US 950).

Section 440.10 permits denial of a motion to vacate without a hearing when a witness’s recantation is incredible and probably would not change the trial result.

People v. Turner · filed 1995-05-22

Under the circumstances of this case the court correctly found that the witness’s recantation was incredible ... The witness’s recantation, which merely impeaches his prior testimony, probably would not change the result if a new trial were granted ... and therefore the court properly denied the defendant’s ...motion without a hearing.

Section 440.10(1)(g) treats newly offered exculpatory testimony from a codefendant who did not testify at trial as newly discovered evidence.

People v. Staton · filed 1996-02-02(1)(g)

The proffered testimony of the codefendant, who did not testify at trial and now seeks to exculpate defendant, constitutes newly discovered evidence within the meaning of CPL 440.10 (g) (see, People v Beach, 186 AD2d 935).

Section 440.10(1)(g) does not entitle a defendant to a hearing based on facts discoverable at trial.

People v. Thomas · filed 1996-04-08(1)(g)

However, these facts were plainly discoverable by the defendant at the time of trial, and thus he may not rely upon CPL 440.10 (1) (g) in support of his argument that he was entitled to a hearing as a matter of law (see also, CPL 440.10 [3] [a]; People v Latella, 112 AD2d 321).

Section 440.10(1)(g) provides a remedy for newly discovered evidence, including a witness’s record discovered after trial.

People v. Shakur · filed 1996-04-12(1)(g)

The remedy, however, is found in CPL 440.10 (1) (g), dealing with newly discovered evidence.

Section 440.10(1)(g) requires newly discovered evidence to have been discovered after trial and to have been unavailable before trial despite due diligence.

People v. Willard · filed 1996-04-25(1)(g)

To qualify as newly discovered evidence for the purpose of CPL 440.10 (1) (g), defendants must demonstrate that the evidence meets six criteria: "(1) it 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 Gurley, 197 AD2d 534, 535). Here, on the face of the motion papers, defendants, minimally, cannot meet the second and third requirements.

Section 440.10 leaves motions based on newly discovered evidence to the lower courts’ discretion.

People v. Bryce · filed 1996-05-07(1)(g)

A motion to vacate a judgment based upon a claim of newly discovered evidence is addressed to the discretion of the lower courts (see, People v Brown, 56 NY2d 242, 246; People v Crimmins, 38 NY2d 407, 409).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence when the conviction followed a guilty verdict after trial; a guilty plea does not qualify.

People v. Rodriguez · filed 1996-10-28(1)(g)

CPL 440.10 (1) (g) provides that a judgment of conviction may be vacated on grounds of newly discovered evidence when the judgment was based upon a verdict of guilty after trial.

A CPL 440.10 motion based solely on the defendant’s hearsay account of another person’s confession may be denied without a hearing.

People v. West · filed 1997-03-17

Finally, the trial court properly denied without a hearing the defendant’s motion pursuant to CPL 440.10. The defendant’s "newly discovered evidence” consisted entirely of his own hearsay allegation that an acquaintance of his had recently confessed to him on the telephone that he and his cousin had put the marihuana-laden suitcases on the plane in the defendant’s name (see, e.g., People v Ford, 46 NY2d 1021).

Section 440.10(1)(g) permits a court to deny a motion without a hearing when the claimed newly discovered evidence would not probably change the result on retrial.

People v. Jackson · filed 1997-04-25(1)(g)

In 1991 defendant moved, pursuant to CPL 440.10 (1) (g), to vacate the judgment of conviction on the ground of newly discovered evidence: to wit, an affidavit from codefendant Thurman Dicker stating that defendant was not involved in the crimes. Supreme Court denied the motion without a hearing, ruling that the affidavit does not constitute newly discovered evidence. We affirm.

Section 440.10(1)(g) permits denial of a motion based on newly discovered evidence without a hearing when the evidence was discoverable with due diligence.

People v. Feliciano · filed 1997-06-12(1)(g)

The court properly exercised its discretion in denying, without a hearing, defendant’s motion to vacate the judgment made on the basis of alleged newly discovered evidence (People v Crimmins, 38 NY2d 407, 416; People v Rodriguez, 193 AD2d 363, lv denied 81 NY2d 1079; CPL 440.10 [1] [g]). Purported newly discovered evidence of another individual confessing to the murder for which defendant was convicted was discoverable with due diligence.

Section 440.10(1)(g) requires a defendant seeking to vacate a judgment based on newly discovered evidence to show that the evidence could not have been discovered before trial through due diligence and would likely change the result.

People v. Grotto · filed 1997-07-24(1)(g)

First, on defendant’s motion to vacate the judgment pursuant to. 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).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence only after a verdict of guilt at trial; a guilty plea forecloses relief on that ground.

People v. Sides · filed 1997-09-04(1)(g)

As to the denial of that branch of defendant’s motion based upon newly discovered evidence, we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial (see, CPL 440.10 [1] [g]). Defendant’s plea of guilty therefore foreclosed relief upon this ground (see, People v Latella, 112 AD2d 321, 322, lvs denied 65 NY2d 983, 66 NY2d 616).

Section 440.10(1)(g) requires a defendant seeking to vacate a conviction based on new evidence to show that due diligence could not have produced it at trial and that it would probably change the result at a new trial.

People v. Bravo · filed 1997-10-20(1)(g)

Turning to the defendant’s motion pursuant to CPL 440.10 (1) (g) to vacate the judgment, we agree with the Supreme Court that the defendant failed to meet his burden of demonstrating that the evidence could not have been produced at the trial with due diligence or that the evidence was such that it would probably change the result if a new trial were granted (see, People v Salemi, 309 NY 208, 216, cert denied 350 US 950; People v Aulla, 207 AD2d 497, 498; People v Penoyer, 135 AD2d 42, 44, affd 72 NY2d 936; People v Latella, 112 AD2d 321, 322).

Section 440.10(1)(g) requires newly discovered evidence to have a probability of affecting the verdict; a favorable post-conviction DNA test does not automatically require vacatur.

People v. Smith · filed 1997-12-09(1)(g)

The court correctly applied the high standard applicable to newly discovered evidence, to wit, probability of affecting the verdict, and the court’s decision to order the post-conviction DNA test pursuant to CPL 440.30 (1-a) did not necessarily require it to grant the motion pursuant to CPL 440.10 (1) (g) upon receipt of a test result favorable to defendant.

Section 440.10(1)(g) requires newly discovered evidence to be capable of changing the result at a new trial.

People v. McGuinness · filed 1997-12-11(1)(g)

The so-called new evidence did not meet the criteria of CPL 440.10 (1) (g) since it would not change the result at a new trial (see, People v Willard, 226 AD2d 1014, 1020, lv dismissed 88 NY2d 943).

Section 440.10(1)(g) requires newly discovered evidence to be material, unavailable before trial despite due diligence, noncumulative, more than merely impeaching, and likely to change the result at a new trial.

People v. Branch · filed 1998-01-07(1)(g)

When a defendant contends that newly discovered evidence requires that a conviction be vacated, it is well settled that the evidence relied upon (a) must be such as will probably change the result if a new trial is granted; (b) must have been discovered since the trial; (c) must be such as could not have been discovered before the trial with the exercise of due diligence; (d) must be material to the issue; (e) must not be cumulative to the former issue, and (f) must not merely impeach or contradict the former evidence.

Section 440.10(1)(g) does not treat newly offered testimony as newly discovered evidence when the information it contains was known at the time of trial.

People v. Taylor · filed 1998-01-20(1)(g)

Contrary to the hearing court’s conclusion, Huggins’s affidavit was not “newly discovered” or discoverable only after trial.

Section 440.10(1)(g) permits vacatur when newly discovered evidence satisfies its requirements, including evidence of the sole eyewitness’s pretrial psychiatric and violent history.

People v. Collins · filed 1998-05-05(1)(g)

Under the circumstances, we agree with the trial court that defendant satisfied the requirements set forth in CPL 440.10 (1) (g) (see, People v Rensing, 14 NY2d 210), and conclude that the court properly exercised its discretion (see, People v Bryce, 88 NY2d 124, 128) in granting the motion.

Section 440.10(1)(g) requires newly discovered evidence to create a probability of a more favorable verdict and to have been unavailable at trial despite due diligence.

People v. Stover · filed 1998-10-13(1)(g)

Upon our review of the record, including the transcript of the postjudgment hearing, we conclude that the defendant’s motion pursuant to CPL 440.10 (1) (g) to vacate his judgment of conviction based upon newly-discovered evidence was properly denied. Neither in his motion papers nor at the hearing did the defendant establish that the proffered evidence created the probability of a more favorable verdict or that the evidence could not have been produced by him at trial by the exercise of due diligence (see, People v Robinson, 211 AD2d 733; People v Boyette, 201 AD2d 490, 491; People v Johnson, 208 AD2d 562, 563; People v Copeland, 185 AD2d 280, 281-282).

Newly discovered evidence must be material to an issue at trial and cannot be merely impeachment evidence.

People v. Reyes · filed 1998-11-24(1)(g)

The evidence of Parson’s 1996 conviction is not newly discovered evidence warranting vacatur of defendant’s conviction since it fails to meet the fourth and sixth criteria mentioned above, namely, that the evidence is material and not merely impeachment evidence.

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the verdict would have been more favorable if the evidence had been received at trial.

People v. Boyd · filed 1998-12-17(1)(g)

This evidence was not of such character as to create the probability that, had it been received at trial, the verdict would have been more favorable to defendant (CPL 440.10 [1] [g]; People v Salemi, 309 NY 208, cert denied 350 US 950).

Section 440.10(1)(g) requires a defendant seeking to vacate a conviction based on newly discovered evidence to show that due diligence could not have uncovered it before trial and that it probably would produce a different verdict on retrial.

People v. Maddox · filed 1998-12-31(1)(g)

Defendant failed, however, to demonstrate that the information could not have been obtained before trial with the exercise of due diligence and that it established the probability that a different verdict would result upon retrial (see, CPL 440.10 [1] [g]; People v Beckett, 162 AD2d 1000, 1001, lv denied 76 NY2d 852; see also, People v Jackson, 238 AD2d 877, lv denied 90 NY2d 859; People v Willard, 226 AD2d 1014, 1020, lv dismissed 88 NY2d 943).

Section 440.10 permits vacatur based on newly discovered evidence when the evidence would probably change the result at a new trial.

People v. Jones · filed 1998-12-31(1)(g)

The alleged new evidence is not “ ‘such as will probably change the result if a new trial is granted’ ” (People v Salemi, supra, at 216).

Section 440.10(1)(g) does not treat a child’s recantation as newly discovered evidence when it merely impeaches or contradicts testimony.

People v. Cassels · filed 1999-04-05(1)(g)

Since the child’s recantation merely impeached or contradicted the defendant’s testimony and her former testimony, it failed to constitute “newly discovered” evidence within the meaning of CPL 440.10 (1) (g) (see, People v Lavrick, 146 AD2d 648, cert denied 493 US 1029; see also, People v Turner, 215 AD2d 703).

Section 440.10(1)(g) does not warrant vacating a conviction based on newly discovered evidence that is immaterial to guilt.

People v. Richards · filed 1999-11-24(1)(g)

As correctly contended by the People, neither the identity of the individuals present at the time of the sale of the shotgun or the date upon which it was sold is material to the ultimate issue of defendant’s guilt of the burglary for which he stands convicted.

Evidence that merely impeaches or contradicts trial testimony does not qualify as newly discovered evidence warranting vacatur under CPL 440.10(1)(g).

People v. Thibodeau · filed 1999-12-30(1)(g)

In order to constitute newly discovered evidence, such evidence must not merely impeach or contradict the former evidence (see, People v Salemi, 309 NY 208, 215-216, cert denied 350 US 950).

Section 440.10(1)(g) allows vacatur based on newly discovered evidence only after a guilty verdict at trial; a guilty plea forecloses that ground.

People v. Black · filed 2000-03-09(1)(g)

Notably, “vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial”, and is foreclosed by defendant’s guilty plea (People v Sides, 242 AD2d 750, 751, lv denied 91 NY2d 836; see, CPL 440.10 [1] [g]).

Section 440.10(1)(g) requires newly discovered evidence to create a probability of a different verdict to support vacating a judgment.

People v. Filippone · filed 2000-04-04(1)(g)

The motion to vacate the judgment on the ground of newly discovered evidence (CPL 440.10 [1] [g]) was properly denied. ... We conclude that none of the medical records relied upon by defendant create a probability of a different verdict.

Section 440.10(1)(g) does not warrant vacating a judgment when newly discovered evidence merely impeaches a witness’s general credibility and would not probably change the result.

People v. Tai · filed 2000-06-22(1)(g)

The court properly exercised its discretion in summarily denying defendant’s motion pursuant to CPL 440.10 (1) (g) to vacate the judgment based on newly discovered evidence (see, People v Crimmins, 38 NY2d 407), since the fact that the People’s main police witness was convicted several years later on unrelated charges had no direct bearing on defendant’s case (see, People v Reyes, 255 AD2d 261, lv denied 92 NY2d 1053; People v Martin, 240 AD2d 5, lv denied 92 NY2d 856). The newly discovered evidence would have merely impeached the officer as to his general credibility and would not have “probably” changed the result (see, People v Taylor, 246 AD2d 410, lv denied 91 NY2d 978; People v Rodriguez, 193 AD2d 363, lv denied 81 NY2d 1079).

Section 440.10(1)(g) requires newly discovered evidence to create a probability of a more favorable verdict before a conviction may be vacated.

People v. Bueno · filed 2000-10-03(1)(g)

The trial court properly denied defendant’s motion to vacate his conviction on the ground of newly discovered evidence, since the new evidence did not create the probability of a more favorable verdict had the evidence been received at this non-jury trial (see, People v Taylor, 246 AD2d 410, 412, lv denied 91 NY2d 978).

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the defendant would have received a more favorable verdict.

People v. Crisler · filed 2000-12-27(1)(g)

Defendant failed to demonstrate that the evidence 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 440.10 [1] [g]; see, People v Maddox, 256 AD2d 1068, lv denied 93 NY2d 875).

Section 440.10(1)(g) does not warrant a new trial when previously unavailable statements merely add impeachment material and create no reasonable probability of a more favorable verdict.

People v. Graham · filed 2001-05-31(1)(g)

Upon review, we agree with County Court’s conclusion that although Blanchard’s statement was apparently unavailable to defendant prior to trial, it does not constitute newly discovered evidence, but is more appropriately characterized as additional and relevant impeachment material on the issue — explored at length at trial — of Blanchard’s ability and motive to identify the shooter, which did not create any reasonable probability of a more favorable verdict (see, CPL 440.10 [1] [g]; People v Richards, 266 AD2d 714, lv denied 94 NY2d 924; People v Vasquez, 214 AD2d 93, 102, lv denied 88 NY2d 943).

Section 440.10(1)(g) does not warrant vacating a conviction based on unreliable recantations, impeachment material of little value, or evidence discoverable earlier with due diligence.

People v. Dukes · filed 2001-06-21(1)(g)

After a thorough hearing, the court properly found that the alleged new evidence, consisting essentially of unreliable recantations that were themselves recanted, impeachment material of little or no value, and evidence that could have been discovered earlier with due diligence, did not justify setting aside the conviction (see, CPL 440.10 [1] [g]; People v Salemi, 309 NY 208, 215-216; People v Shilitano, 218 NY 161; see also, People v Reyes, 255 AD2d 261, lv denied 92 NY2d 1053).

Section 440.10(1)(g) does not treat evidence already known to the defense as newly discovered evidence.

People v. DeVito · filed 2001-10-04(1)(g)

Defendants offered no reasonable excuse for their failure to come forward with the information contained in these affidavits at an earlier date, either at trial, or at the first CPL 440.10 motion, made in 1994, when the information was unquestionably known to defendants.

Section 440.10(1)(g) provides the motion procedure for a newly discovered evidence claim involving matters outside the trial record.

People v. Contes · filed 2001-12-18(1)(g)

Defendant’s newly discovered evidence claim may not be considered on direct appeal because it involves matters dehors the record. Accordingly, it would require a motion pursuant to CPL 440.10 (1) (g).

A prosecution witness’s recanting affidavit does not automatically require a hearing on a newly discovered evidence motion under § 440.10(1)(g).

People v. Santiago · filed 2001-12-21(1)(g)

County Court properly denied without a hearing that part of defendant’s motion seeking to vacate the judgment of conviction on the ground of newly discovered evidence (see, CPL 440.10 [1] [g]), consisting of an affidavit of a prosecution witness recanting her trial testimony (see, People v Dukes, 106 AD2d 906, 907; see also, People v Jackson, 238 AD2d 877, 878, lv denied 90 NY2d 859).

Section 440.10(1)(g) does not warrant vacatur when newly discovered evidence would only impeach a witness and would not probably change the trial result.

People v. McAllister · filed 2002-06-11(1)(g)

The court properly denied defendant’s motion to vacate the judgment. The alleged newly discovered evidence would, at most, have constituted impeachment material that would not have “probably” changed the result of the trial (see, People v Taylor, 246 AD2d 410, 412, lv denied 91 NY2d 978).

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the verdict would have been more favorable if the evidence had been received at trial.

People v. Hogencamp · filed 2002-07-11(1)(g)

Defendant’s newly discovered evidence claim is unavailing because we find that the evidence is not of such a character as to create a probability that, had it been received at trial, the verdict would have been more favorable to defendant (see, CPL 440.10 [1] [g]).

Evidence is not newly discovered under § 440.10(1)(g) if due diligence could have uncovered it before trial.

People v. Chaney · filed 2002-10-17(1)(g)

Contrary to defendant’s contentions, this evidence is not “newly discovered” within the meaning of CPL 440.10 (1) (g) since, with the exercise of due diligence, it could have been discovered before trial (see People v Grotto, 241 AD2d 785, 786-787, lv denied 90 NY2d 940).

Section 440.10(1)(g) requires a defendant seeking to vacate a conviction based on newly discovered evidence to show that due diligence could not have produced the evidence at trial.

People v. Higgins · filed 2002-10-21(1)(g)

Contrary to the defendant’s contention, the Supreme Court properly denied his motion pursuant to CPL 440.10 (1) (g) to vacate his judgment of conviction based on newly-discovered evidence without conducting a hearing. The defendant failed to demonstrate that the evidence could not have been produced at trial with the exercise of due diligence (see People v Feliciano, 240 AD2d 256; People v Moore, 147 AD2d 924).

Section 440.10(1)(g) requires newly discovered evidence that could not have been produced at trial with due diligence and would probably have led to a favorable verdict.

People v. Morris · filed 2002-11-14(1)(g)

County Court correctly concluded that this affidavit was not newly discovered evidence for there is no indication that, with due diligence, this information could not have been produced at trial (see People v Richards, 266 AD2d 714, 715, lv denied 94 NY2d 924). Nor is this information of such character that, with it, the jury probably would have rendered a verdict favorable to defendant (see CPL 440.10 [1] [g]).

Section 440.10(1)(g) requires a motion based on newly discovered evidence to be made with due diligence after discovery of the evidence.

People v. Kandekore · filed 2002-12-02(1)(g)

To the extent that the defendant contends that alleged new evidence exists which warrants vacatur of his judgment of conviction, his motion was not made with “due diligence” following the discovery of the purportedly new evidence (CPL 440.10 [1] [g]; see People v Stuart, 123 AD2d 46, 54; see also People v Boyette, 201 AD2d 490, habeas corpus granted on other grounds sub nom. Boyette v Lefevre, 246 F3d 76).

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the verdict would have been more favorable to the defendant if the evidence had been received at trial.

People v. Hogencamp · filed 2002-12-05(1)(g)

Defendant’s newly discovered evidence claim is unavailing because we find that the evidence is not of such a character as to create a probability that, had it been received at trial, the verdict would have been more favorable to defendant (see CPL 440.10 [1] [g]).

Section 440.10(1)(g) permits vacating convictions when newly discovered evidence probably would have produced more favorable verdicts, including on related charges that the evidence materially undermines.

People v. Wise · filed 2002-12-19(1)(g)

Although this theory cannot be said to have been unreasonable in 1990, given the evidence at the time of the trials, this court finds that the newly discovered evidence, as conceded by the People, is so intertwined with all the crimes charged against the defendants and that it would so weaken the reliability of the confessions, that the newly discovered evidence would create a probability that had such evidence been received at trial, the verdict would have been more favorable to the defendants as to all the convictions.

Section 440.10 requires a defendant seeking to vacate a conviction based on new evidence to show that due diligence could not have produced it at trial and that it would probably change the result at a new trial.

People v. Rustici · filed 2003-03-17(1)(g)

The defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction was properly denied. The defendant failed to meet his burden of demonstrating that the evidence submitted on the motion could not have been produced at the trial with due diligence or that the evidence was such that it would probably change the result if a new trial were granted (see People v Latella, 112 AD2d 321 [1985]).

Section 440.10(1)(g) provides for a new trial based on newly discovered evidence when that evidence warrants the relief.

People v. Martien · filed 2003-03-20(1)(g)

Defendant’s newly discovered evidence claim was not contained in his CPL 440.10 motion. In any event, the evidence in question would not entitle defendant to a new trial (see CPL 440.10 [1] [g]).

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the verdict would have been more favorable to the defendant.

People v. Crisler · filed 2003-03-21(1)(g)

With respect to appeal No. 2, we conclude that the court properly denied defendant’s CPL 440.10 motion to vacate the judgment of conviction on the ground of newly discovered evidence. Defendant failed to demonstrate that the evidence 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” (440.10 [1] [g]; see People v Maddox, 256 AD2d 1068 [1998], lv denied 93 NY2d 875 [1999]).

Section 440.10(1)(g) does not warrant vacating a conviction when the new evidence merely impeaches prior testimony and is unlikely to produce a more favorable verdict.

People v. Graziosa · filed 2003-05-09(1)(g)

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.

A CPL 440.10 motion based on an affidavit containing impeachment material may be denied without a hearing when the affidavit shows no reasonable probability of a favorable verdict at a new trial.

People v. Mcknight · filed 2003-06-05

Next, we turn to defendant’s contention that County Court erred in denying his CPL 440.10 motion without a hearing. ... We agree with County Court that the Jones affidavit, which could be characterized as containing some impeachment material, was insufficient to create any reasonable probability of a verdict favorable to defendant if a new trial was granted (see People v Morris, 299 AD2d 655, 657 [2002], lv denied 99 NY2d 583 [2003]; People v Graham, 283 AD2d 885, 889 [2001], lv denied 96 NY2d 940 [2001]; People v Richards, 266 AD2d 714, 715 [1999], lv denied 94 NY2d 924 [2000]).

Section 440.10(1)(g) permits denial of a motion based on newly discovered recantation evidence without a hearing when the submissions and trial record establish that the recantation is unreliable.

People v. Cintron · filed 2003-06-19(1)(g)

The court properly denied defendant’s CPL 440.10 motion without a hearing ... Notwithstanding the absence of an evidentiary hearing, the totality of the parties’ submissions along with the trial record warrant a factual finding that the recantation is totally unreliable.

Section 440.10 requires a defendant seeking to vacate a judgment based on newly discovered evidence to show that the evidence is not merely cumulative.

People v. Tran · filed 2003-09-15(1)(g)

Further, the defendant failed to meet his burden of demonstrating that the police reports constituted newly-discovered evidence, as such evidence was merely cumulative and only served to bolster the testimony of the defendant at the trial (see People v Latella, 112 AD2d 321, 323 [1985]).

Section 440.10(1)(g) requires that newly discovered evidence could not have been produced at trial with due diligence.

People v. Singleton · filed 2003-11-21(1)(g)

The transcript does not constitute newly discovered evidence because it could have been produced at trial by defendant with due diligence (see 440.10 [1] [g]; People v Ulrich, 265 AD2d 884, 886 [1999], lv dismissed 94 NY2d 799 [1999]; People v Beckett, 162 AD2d 1000, 1001 [1990], lv denied 76 NY2d 852 [1990]).

A posttrial eyewitness identification of a third party is not newly discovered evidence under CPL 440.10(1)(g) when the eyewitness testified at trial and the evidence could have been obtained with due diligence.

People v. Schulz · filed 2004-03-29(1)(g)

Moreover, the Supreme Court providently exercised its discretion in denying the defendant’s motion pursuant to CPL 440.10 (1) (g) without a hearing. That motion was based primarily upon the posttrial identification by one of the eyewitnesses of a third-party as the “true” perpetrator. Contrary to the defendant’s contention, this did not constitute newly discovered evidence (see People v Salemi, 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]; People v Priori, 164 NY 459, 472 [1900]). We reject the defendant’s claim that this evidence could not have been procured with due diligence at the time of the trial, since the eyewitness in question testified at the trial (see People v Salemi, supra).

Section 440.10 requires newly discovered evidence to be material; evidence that merely impeaches a witness’s general credibility does not justify vacating a judgment.

People v. Parsons · filed 2004-04-29(1)(g)

Defendant failed to establish that the newly discovered evidence of the detective’s alleged perjury, subsequent and unrelated to defendant’s trial, was material (see People v Salemi, 309 NY 208 [1955]), since this evidence merely tended to impeach the detective’s general credibility (see e.g. People v Roberson, 276 AD2d 446 [2000], lv denied 96 NY2d 805 [2001]).

A child’s recantation that merely impeaches or contradicts her trial testimony is not newly discovered evidence under CPL 440.10(1)(g).

People v. Pope · filed 2004-04-30(1)(g)

Moreover, County Court did not abuse its discretion in denying without a hearing defendant’s motion to vacate the judgment pursuant to CPL 440.10. “Since the child’s recantation merely impeached or contradicted . . . her former testimony, it failed to constitute ‘newly discovered’ evidence within the meaning of CPL 440.10 (1) (g)” (People v Cassels, 260 AD2d 392, 393 [1999], lv denied 93 NY2d 1043 [1999]).

Section 440.10(1)(g) requires a claim of newly discovered evidence to identify evidence that could not have been produced at trial with due diligence and probably would have produced a more favorable verdict.

People v. Boehm · filed 2004-08-30(1)(g)

Pursuant to CPL 440.10(1)(g) a defendant may move to vacate a judgment upon the ground that new evidence has been discovered "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 . . ." ... Defendant has made no showing that there exists any "new evidence" relevant to the indictment that was not available to him or counsel prior to his plea.

Section 440.10(1)(g) permits vacatur when newly discovered evidence creates a probability that the verdict would have been more favorable to the defendant.

People v. Wong · filed 2004-10-21(1)(g)

Having determined that sufficient newly discovered evidence exists to support the motion, we turn to an analysis of the character of this evidence to determine if it creates a probability that the verdict would have been more favorable to defendant had it been received at trial.

Section 440.10(1)(g) requires a defendant seeking to vacate a judgment based on newly discovered evidence to explain why the evidence was unavailable at trial.

People v. Whitmore · filed 2004-11-18(1)(g)

County Court properly denied defendant’s CPL 440.10 motion. Defendant provided no explanation as to why any alleged new evidence was not available at the time of trial (see CPL 440.10 [1] [g]; People v McGourty, 188 AD2d 679, 681 [1992], lv denied 81 NY2d 843 [1993]).

Section 440.10(1)(g) provides a posttrial procedure for presenting a claim based on newly discovered evidence.

People v. McCrone · filed 2004-11-18(1)(g)

Finally, to the extent that defendant claims that a videotape of a subsequent robbery with a similar modus operand! as those committed in this case would be exculpatory to him since it was committed while he was imprisoned for the instant offenses, such evidence is not before this Court as defendant has not availed himself of posttrial procedures to properly present this claim (see CPL 440.10 [1] [g]).

Section 440.10(1)(g) requires a motion based on newly discovered evidence to be made with due diligence after the evidence is discovered.

People v. Sterling · filed 2004-12-14(1)(g)

CPL 440.10 (1) (g), in fact, does contain the additional requirement that a motion based upon the ground of newly discovered evidence must be made with due diligence after its discovery.

Section 440.10 does not provide relief based on newly discovered evidence that could have been produced with due diligence.

Matter of E.M. · filed 2005-03-31

However, that statute is inapplicable to the instant application, as the "newly discovered evidence," in the Court's opinion, could have been produced by the Presentment Agency, with due diligence, on February 3, 2005.

Section 440.10(1)(g) permits vacatur based on newly discovered evidence only after a verdict of guilt at trial, so a guilty plea precludes relief on that ground.

People v. Lahon · filed 2005-04-14(1)(g)

As for defendant’s claim of newly discovered evidence, inasmuch as “vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial,” defendant’s guilty plea precludes relief on this ground (People v Sides, 242 AD2d 750, 751 [1997], lv denied 91 NY2d 836 [1997]; see CPL 440.10 [1] [g]).

Section 440.10(1)(g) requires newly discovered evidence that could not have been produced at trial with due diligence and would probably have led to a more favorable verdict; the motion must also be made diligently after discovery.

People v. Burton · filed 2005-07-11(1)(g)

First addressing defendant’s claim of newly discovered evidence, pursuant to CPL 440.10 (1) (g), a defendant may move to vacate a judgment upon the ground that new evidence has been discovered “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.” The motion itself must also be made with due diligence after the discovery of the claimed new evidence. ... Defendant has failed to establish that this was newly discovered evidence pursuant to CPL 440.10 (1) (g).

A recantation that merely impeaches trial testimony is insufficient to vacate a judgment based on newly discovered evidence.

People v. Simmons · filed 2005-07-28(1)(g)

If anything, Millwood’s recantation would have merely impeached Wilcox’s trial testimony, which is an insufficient basis for vacatur of the judgment of conviction (see People v Richards, 266 AD2d 714, 715 [1999], lv denied 94 NY2d 924 [2000]).

A court may deny a motion to vacate based on newly discovered evidence without a hearing when the defendant fails to show due diligence and the evidence would not probably change the result at a new trial.

People v. Cruz · filed 2005-11-21(1)(g)

The Supreme Court properly exercised its discretion in denying, without a hearing, the defendant’s motion to vacate a judgment of conviction. Not only did the defendant fail to make a showing of due diligence with respect to his claim of newly discovered evidence, but the evidence was not such that it would probably change the result in the event a new trial was granted (see People v Salemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]; People v Cabrera, 1 AD3d 375 [2003]; People v Latella, 112 AD2d 321 [1985]).

Section 440.10 does not permit vacatur based on evidence the defendant knew about before trial as newly discovered evidence.

People v. Hendrie · filed 2005-12-08(1)(g)

Since this evidence was known to defendant well in advance of trial, it cannot be considered newly discovered (see People v Willard, 226 AD2d 1014, 1020 [1996], lv dismissed 88 NY2d 943 [1996]).

Section 440.10(1)(g) permits vacatur based on newly discovered impeachment evidence when it likely would have produced a more favorable verdict and could not have been produced at trial with due diligence.

People v. Jackson · filed 2006-05-04(1)(g)

Although the new evidence essentially constitutes impeachment material, it is of such extraordinary significance in undermining the complainant’s credibility that it “ create [s] 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]).

Section 440.10 does not treat information derived from evidence available to defense counsel before trial as newly discovered evidence.

People v. Dishaw · filed 2006-06-08(1)(g)

Next, we find no abuse of discretion on the part of County Court in denying defendant’s CPL 440.10 motion (see People v Bryce, 88 NY2d 124, 128 [1996]). First, we agree with the court’s finding that the subject lottery tickets were readily available for examination by defense counsel well in advance of trial and thus the information thereafter derived from them was not “newly discovered” (see e.g. People v Singleton, 1 AD3d 1020, 1021 [2003], lv denied 1 NY3d 580 [2003]; People v Maddox, 256 AD2d 1068, 1068-1069 [1998], lv denied 93 NY2d 875 [1999]; see generally People v Gates, 189 AD2d 934, 935 [1993]).

Section 440.10(1)(g) applies to newly discovered evidence only after a guilty verdict at trial, so it does not apply to a conviction based on a guilty plea.

People v. Philips · filed 2006-06-20(1)(g)

CPL 440.10 (1) (g) is limited, by its very terms, to evidence discovered “since the entry of a judgment based upon a verdict of guilty after trial.” The defendant pleaded guilty, so the statute does not apply here (see People v Sides, 242 AD2d 750, 751 [1997]).

Section 440.10 does not warrant vacating a conviction based on newly discovered evidence that merely impeaches earlier evidence or duplicates prior testimony.

People v. McBean · filed 2006-08-03(1)(g)

Finally, we find no error in County Court’s denial of defendant’s motion to vacate the judgment of conviction based upon newly discovered evidence. Each new item proffered merely impeached former evidence or was cumulative of prior testimony.

Section 440.10(1)(g) permits a motion based on newly discovered evidence only for a conviction after trial.

People v. Ortega · filed 2007-05-17(1)(g)

The newly discovered evidence theory (CPL 440.10 [g]) applies only to convictions after trial.

Section 440.10(1)(g) requires newly discovered evidence to be likely to change the result at a new trial.

People v. Hunter · filed 2007-06-07(1)(g)

Similarly, although County Court did not resolve this issue, we find that the information regarding the complainant’s prior allegation of sexual abuse does not constitute newly discovered evidence (see CPL 440.10 [1] [g]). ... In view of our conclusion that the evidence as tendered on defendant’s motion to vacate would not have been admissible to impeach the complainant, by necessity we find it could not have had any impact on the verdict.

Newly discovered testimony does not warrant vacatur under § 440.10(1)(g) when it would not probably change the verdict.

People v. McGuire · filed 2007-10-23(1)(g)

In addition, the numerous inconsistencies in their respective accounts of the shooting established that their testimony would not “probably change” the verdict if introduced at trial (People v Salemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]; see People v Milea, 184 AD2d 791, 792 [1992]; see also People v Yates, 290 AD2d 888, 890 [2002]; People v Jackson, 238 AD2d 877, 878 [1997]).

Section 440.10(1)(g) requires a defendant seeking to vacate a conviction based on newly discovered evidence to show that the evidence would probably change the result upon retrial.

People v. Perez · filed 2007-11-26(1)(g)

In order for the defendant to prevail on a claim of newly discovered evidence, he bears the burden of proving, inter alia, that the newly discovered evidence would probably, not merely possibly, change the result upon retrial.

Section 440.10(1)(g)’s due diligence requirement allows a defendant time to assemble newly discovered evidence before moving to vacate a conviction.

People v. Tankleff · filed 2007-12-18(1)(g)

Under the unique facts of this case, the defendant should not be charged with a lack of due diligence in finding the multiple witnesses who implicated Creedon and/or Jerry Steuerman. The defendant’s investigation resulted in a body of new evidence which required time to accumulate. He should not be penalized for waiting to amass all of the new evidence and then presenting it cumulatively to the County Court.

Section 440.10(1)(g) permits vacatur for newly discovered evidence that would probably change the result, could not have been discovered before trial through due diligence, is material and noncumulative, and is not merely impeaching or contradictory.

People v. Lackey · filed 2008-02-28(1)(g)

To justify vacatur under CPL 440.10 (1) (g), the newly discovered evidence “must fulfill all the following requirements: 1. It 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 Priori, 164 NY 459, 472 [1900]; see People v Tucker, 40 AD3d at 1214-1215; People v Richards, 266 AD2d 714, 715 [1999], lv denied 94 NY2d 924 [2000]).

Section 440.10(1)(g) permits denial of a motion based on newly discovered evidence without a hearing when the defendant fails to show that due diligence could not have uncovered and produced the evidence before trial.

People v. Watkins · filed 2008-03-06(1)(g)

Also, defendant’s CPL 440.10 motion was properly denied without a hearing as defendant did not show that the exculpatory affidavit of another inmate could not, with due diligence, have been discovered and produced prior to trial (see CPL 440.10 [1] [g]; People v Thorsen, 20 AD3d 595, 598 [2005], lv denied 5 NY3d 810 [2005]; see also People v Wong, 256 AD2d 724, 726 [1998], lv denied 93 NY2d 903 [1999]).

Unreliable recantations and remote evidence of third-party culpability do not justify vacating a judgment under section 440.10(1)(g).

People v. Buari · filed 2008-04-22(1)(g)

After a thorough hearing, the court properly found that the alleged new evidence, consisting essentially of unreliable recantations and confessions that were themselves recanted, and extremely remote evidence of third-party culpability, did not justify vacating the judgment (see CPL 440.10 [1] [g]; see also People v Dukes, 284 AD2d 236 [2001], lv denied 97 NY2d 681 [2001]).

Section 440.10(1)(g) requires a defendant seeking to vacate a judgment based on newly discovered evidence to show that due diligence could not have uncovered it before trial.

People v. Riback · filed 2008-12-24(1)(g)

Further, County Court correctly denied defendant’s posttrial motion to vacate the judgment of conviction based upon newly discovered evidence (see CPL 440.10 [1] [g]). ... Defendant failed to show, by a preponderance of evidence, that information gleaned in the victims’ civil-suit depositions (taken after this trial) regarding the Colonie Police Department’s investigative techniques and manner of interviews could not have been discovered by defendant prior to this trial with due diligence.

Section 440.10(1)(g) requires newly discovered evidence to create a probability that the trial verdict would have been more favorable to the defendant.

People v. Swift · filed 2009-10-02(1)(g)

We agree with the People that the DNA test results are 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 440.10 [1] [g]).

Section 440.10(1)(g) authorizes a motion to vacate a judgment based on newly discovered evidence.

People ex rel. Johnson v. Fischer · filed 2010-01-14(1)(g)

CPL 440.10 (1) (g) specifically authorizes a motion to vacate a judgment upon the ground of newly discovered evidence (see People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]), and the likelihood that such a motion would have been unsuccessful does not entitle petitioner to habeas corpus relief.

Section 440.10(1)(g) does not permit vacatur based on evidence discoverable before trial through due diligence that merely impeaches or contradicts trial evidence.

People v. Sharpe · filed 2010-02-18(1)(g)

Although Rossi’s third account of the bar fight is arguably exculpatory, it still would have been insufficient to vacate defendant’s conviction because it could have been discovered before trial by the exercise of due diligence and merely impeached or contradicted the evidence at trial (see People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]; People v Venkatesan, 295 AD2d 635, 638 [2002], lv denied 99 NY2d 565 [2002], cert denied 549 US 854 [2006]).

CPL 440.10(1)(g) requires newly discovered evidence to create a probability that the verdict would have been more favorable had it been received at trial.

People v. Mendez · filed 2010-03-02(1)(g)

The affidavit from a fellow inmate that the defendant submitted merely contradicted the evidence adduced at the trial, and 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 440.10 [1] [g]; see People v Cruz, 23 AD3d 577 [2005]; People v Perkins, 234 AD2d at 482).

Section 440.10(1)(g) requires new evidence to create a probability that the verdict would have been more favorable had it been received at trial.

People v. Medina · filed 2010-12-14(1)(g)

Accordingly, the evidence presented 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 440.10 [1] [g]), and the County Court providently exercised its discretion in denying the defendant’s motion without a hearing (see People v Mendez, 71 AD3d 696 [2010]; People v Mears, 55 AD3d 439, 440 [2008]; People v Cintron, 306 AD2d 151, 152 [2003]; People v Perkins, 234 AD2d 482 [1996]; People v Robinson, 211 AD2d 733, 733-734 [1995]).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence that is material, is not merely cumulative, and has a reasonable probability of producing a more favorable verdict.

People v. Malik · filed 2011-02-22(1)(g)

Contrary to the People’s contentions, the Supreme Court properly concluded that the defendant satisfied his burden of demonstrating that the newly-discovered evidence was material, and not merely cumulative.

A motion to vacate a judgment based on newly discovered evidence must be made with due diligence after discovery of that evidence.

RIVERA, BENJAMIN, PEOPLE v · filed 2011-03-25(1)(g)

Finally, County Court properly denied the motions to the extent that they sought to vacate the judgment on the ground of newly discovered evidence, i.e., a written statement by another accomplice. The motions, which were made almost three years after the written statement was issued, were not made with the requisite due diligence after the discovery of that evidence (see People v Kandekore, 300 AD2d 318, 319, lv denied 99 NY2d 616, cert denied 540 US 896).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence that could not have been produced at trial with due diligence and would probably have led to a more favorable verdict.

People v. Bronson · filed 2011-04-29(1)(g)

The language in CPL 440.10 (1) (g) is essentially a restatement of the Salemi test, which requires that the newly discovered evidence be “material,” “[non]cumulative” and of such character that it “will probably change the result if a new trial is granted” (Salemi at 216).