N.Y. Crim. Proc. Law § 440.10

Section 440.10(1)(g) permits a court to vacate a conviction when the likely cumulative effect of newly discovered evidence would have produced a more favorable verdict.

People v. Bellamy · filed 2011-05-24(1)(g)

The Supreme Court properly determined that the likely cumulative effect of the newly discovered evidence, including the informant’s original statements to investigators and counsel concerning Ishmael’s alleged confession, his recantation of those statements, and the testimony concerning the faked confession tape, would have been a verdict more favorable to the defendant (see CPL 440.10 [1] [g]).

Section 440.10(1)(g) permits a court to vacate a conviction when newly discovered evidence could not have been produced at trial despite due diligence and probably would have led to a more favorable verdict.

People v. Conneely · filed 2011-07-29(1)(g)

The court finds that defendant has met the requirements set forth in Criminal Procedure Law § 440.10 (1) (g). Consequently, the two guilty verdicts rendered in this case against defendant are hereby vacated, the sentence is set aside, and a new trial is granted and scheduled to be held on August 22, 2011.

Section 440.10(1)(g) requires a defendant seeking vacatur based on newly discovered evidence to account for why due diligence would not have uncovered it before trial.

People v. Wright · filed 2011-10-27(1)(g)

County Court properly denied these applications, finding that this evidence was collateral and that defendant failed to adequately account for why, if he had acted with due diligence, he would not have uncovered this evidence prior to trial (see CPL 440.10 [1] [g]; ...).

Section 440.10(1)(g) does not support vacating a conviction based on newly discovered evidence when that evidence is highly unlikely to change the verdict.

People v. Blackman · filed 2011-12-22(1)(g)

Even if such footage were recovered, the overwhelming evidence of defendant’s guilt makes it highly unlikely that the verdict would have been different (see CPL 440.10 [1] [g]; People v Terry, 44 AD3d 1157, 1159 [2007], lv denied 10 NY3d 772 [2008]; People v Hogencamp, 300 AD2d 734, 736 [2002]).

Section 440.10(1)(g) requires newly discovered evidence to have a probability of changing the result to support vacating a judgment.

People v. Alston · filed 2012-01-05(1)(g)

The court properly denied defendant’s CPL 440.10 (1) (g) motion to vacate the judgment on the ground of newly discovered evidence. This evidence would not have created any reasonable possibility of changing the result, let alone the “probability” required by the statute (see e.g. People v Taylor, 246 AD2d 410 [1998], lv denied 91 NY2d 978 [1998]).

Section 440.10(1)(g) requires newly discovered evidence to have a probability of changing the result before a judgment may be vacated.

People v. Quan Hong Ye · filed 2012-02-02(1)(g)

The court properly exercised its discretion in denying defendant’s CPL 440.10 (1) (g) motion to vacate the judgment on the ground of newly discovered evidence. The evidence would not have created the “probability” of changing the result that is required by the statute (see People v Taylor, 246 AD2d 410 [1998], lv denied 91 NY2d 978 [1998]).

Section 440.10(1)(g) permits vacatur and a new trial when newly discovered evidence, considered together, creates a reasonable probability of a more favorable verdict.

People v. Deacon · filed 2012-06-20(1)(g)

Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof denying that branch of the defendant’s motion which was pursuant to CPL 440.10 (1) (g) to vacate the judgment of conviction on the ground of newly discovered evidence and for a new trial, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, the judgment is vacated, and a new trial is ordered.

Section 440.10(1)(g) does not treat evidence about facts known to the defendant at trial as newly discovered evidence.

People v. Cain · filed 2012-06-27(1)(g)

The Supreme Court properly determined that the defendant failed to meet his burden of showing that the proffered evidence has been discovered since the entry of judgment on his conviction. The defendant makes no claim that Timana had any potential testimony not known to him at the time of the trial. Moreover, even if Timana’s testimony at the hearing pursuant to CPL 440.30 is credited, the factual allegations therein were known to the defendant at the time of his trial.

Section 440.10(1)(g) permits a motion based on newly discovered evidence, but evidence that would not probably change the trial result does not warrant vacatur or a hearing.

People v. Matthews · filed 2012-12-20(1)(g)

Turning to defendant’s appeal from the denial of his pro se motion to set aside the verdict based upon newly discovered evidence (see CPL 440.10 [1] [g]), we discern no error in County Court’s denial thereof without a hearing. ... Given the foregoing, County Court correctly determined that while this “new” evidence may have “added to” the mistaken identity defense, it was certainly not of the nature as would “probably change the result” had it been presented to the jury (People v Tucker, 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007] [internal quotation marks and citations omitted]; see People v Richards, 266 AD2d 714, 715 [1999], lv denied 94 NY2d 924 [2000]).

For a motion filed in March 2011, § 440.10 required a defendant seeking DNA testing to show that the evidence was newly discovered; amendments effective October 2012 eliminated that requirement.

People v. Dickson · filed 2013-02-21(1)(g)

At the time of defendant’s motion in March 2011, he was required to make this showing (see CPL 440.10 [1] [g]; People v Pugh, 288 AD2d 634, 634 [2001]); the statutory amendments eliminating this requirement took effect in October 2012 (see CPL 440.10 [1] [g-1]).

Section 440.10(1)(g) requires a movant relying on newly discovered evidence to show, among other things, that the evidence could not have been discovered before trial with due diligence and would probably change the result at a new trial.

SMITH, CHRISTOPHER, PEOPLE v · filed 2013-07-05(1)(g)

In light of the above, the court properly determined that the codefendant’s affidavit does not constitute newly discovered evidence and therefore properly denied the CPL 440.10 motion without a hearing (see Jackson, 238 AD2d at 878-879).

Section 440.10(1)(g) permits vacatur 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.

MCFARLAND, RODNEY, PEOPLE v · filed 2013-07-05(1)(g)

That section permits vacatur of a judgment of conviction on the ground that new evidence has been discovered since the entry of a judgment, which could not have been produced at trial with due diligence “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 440.10 [1] [g]).

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

People v. Stacchini · filed 2013-07-11(1)(g)

The Criminal Procedure Law permits a court to vacate a judgment of conviction based upon new evidence discovered after the judgment was entered which the defendant could not previously have produced with due diligence 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” (CPL 440.10 [1] [g]; see CPL 440.10 [3] [b], [c]). Even assuming that defendant based his motion upon this provision, he did not meet this showing, nor demonstrate the requisite due diligence.

Section 440.10(1)(g) permits vacatur based on newly discovered evidence when the evidence creates a probability of a more favorable verdict.

People v. Jones · filed 2013-08-06(1)(g)

Defendant has not established that the newly discovered DNA evidence “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 [him]” (CPL 440.10 [1] [g]).

Section 440.10(1)(g) permits a court to vacate a conviction when newly discovered evidence probably would have produced a more favorable verdict.

People v. Singh · filed 2013-11-13(1)(g)

CPL 440.10 (1) (g) provides that a court may vacate a judgment of conviction upon the ground that: “New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after 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; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence.”

Section 440.10(1)(g) does not warrant vacatur based on newly discovered evidence when defense counsel had the evidence in his file before trial.

People v. Jabaut · filed 2013-11-27(1)(g)

With regard to defendant’s claim that newly discovered evidence required that his conviction be vacated (see CPL 440.10 [1] [g]), defense counsel’s ultimate concession that the police interview notes at issue were in his file belied any claim that the evidence “could have not been discovered before the trial [and produced at trial] by the exercise of due diligence” (People v Lackey, 48 AD3d 982, 983 [2008], lv denied 10 NY3d 936 [2008]).

Section 440.10 permits a hearing on a motion to vacate when a newly discovered witness’s affidavit sufficiently raises questions about guilt and the probable effect of the testimony on the verdict.

People v. Page · filed 2014-03-13

However, we find that the affidavit of Maurice Miller proffered by defendant was sufficient to warrant a hearing.

Section 440.10(1)(g-1) permits a court to vacate a conviction based on postjudgment DNA testing when a more favorable verdict was reasonably probable, without requiring the DNA evidence to be newly discovered.

People v. Hicks · filed 2014-02-27(1)(g-1)

Unlike a motion under CPL 440.10 (1) (g), a defendant relying on the results of DNA testing no longer has to show that the results of such testing is newly discovered evidence in order to seek vacatur of a judgment of conviction. The defendant only has to show that there is a reasonable probability that he would have obtained a more favorable verdict.

Section 440.10(1)(g) requires newly discovered evidence to have been unavailable despite due diligence and likely to produce a more favorable verdict.

People v. Jones · filed 2014-03-24(1)(g)

Further, although defendant argues that some of the technology related to nighttime vision was not available in 1996, certainly there were other proposed investigatory measures, such as the measurement from the window to the place where the shooter was standing, which defendant, exercising due diligence, could have pursued at the time of his trial in 1996 (see CPL 440.10 [1] [g]). Nor is the evidence of the measurement “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” (id.).

Section 440.10(1)(g) requires evidence offered as grounds to vacate a judgment to qualify as newly discovered.

People v. Caldavado · filed 2014-04-16(1)(g)

That branch of the defendant’s motion which was to vacate the judgment based on newly discovered evidence was properly denied, since the evidence the defendant offered was not newly discovered within the meaning of CPL 440.10 (1) (g) (see People v Salemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]; People v Kellar, 199 AD2d 703 [1993]).

Section 440.10(1)(g) permits relief based on newly discovered evidence only after a trial verdict, not after a guilty plea.

RIVERA, FERNANDO, PEOPLE v · filed 2014-05-02(1)(g)

To the extent that defendant relies on those affidavits as newly discovered evidence that was not available at the time defendant pleaded guilty, we note that defendant pleaded guilty herein, and relief pursuant to CPL 440.10 (1) (g) based on newly discovered evidence is available only upon a verdict following a trial.

Section 440.10(1)(g) permits a new trial when newly discovered evidence could not have been found with due diligence before trial and would probably change the result.

BRYANT, MALCOLM, PEOPLE v · filed 2014-05-09(1)(g)

We conclude that defendant is entitled to a new trial on the ground of newly discovered evidence, and we therefore reverse the order and grant the motion to the extent that it is based on newly discovered evidence.

Section 440.10(1)(g) permits vacatur for newly discovered evidence only when the evidence meets requirements including diligence, materiality, and a probability of changing the result.

People v. Mazyck · filed 2014-06-04(1)(g)

To justify vacatur of a judgment of conviction based on newly discovered evidence pursuant to CPL 440.10 (1) (g), “the 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 Deacon, 96 AD3d 965, 967 [2012] [internal quotation marks omitted], quoting People v Salemi, 309 NY 208, 216 [1955]; see People v Malik, 81 AD3d at 981-982; People v Tankleff, 49 AD3d 160, 179 [2007]).

Section 440.10(1)(g) does not permit vacatur based on newly discovered evidence that is cumulative or unlikely to change the result at a new trial.

People v. Irizarry · filed 2014-08-07(1)(g)

In sum, defendant has not established that his claimed newly discovered evidence is not cumulative or that the result will probably change were the court to grant him a new trial. Therefore, defendant’s motion to set aside his conviction on the grounds of newly discovered evidence is denied.

Section 440.10(1)(g) requires newly discovered evidence that could not have been produced at trial with due diligence and would probably change the result at a new trial.

People v. Griffin · filed 2014-09-10(1)(g)

The Supreme Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate his conviction based on newly discovered evidence, since the evidence the defendant offered was not newly discovered within the meaning of CPL 440.10 (1) (g).

Section 440.10(1)(g) does not treat a recantation affidavit as newly discovered evidence when it merely impeaches trial testimony and would not probably produce a more favorable verdict.

HOWINGTON, STEVEN A., PEOPLE v · filed 2014-11-14(1)(g)

Furthermore, the recantation affidavit does not qualify as newly discovered evidence pursuant to CPL 440.10 (1) (g) because the issues raised in the affidavit would merely impeach or contradict the trial testimony of the prosecution witness, and the new evidence therefore is not “of such character as to create a probability that . . . the verdict would have been more favorable to the defendant” had the evidence been introduced (id.; see People v Miles, 136 AD2d 958, 959, lv denied 71 NY2d 971).

New expert testimony about pediatric head injuries can qualify as newly discovered evidence under section 440.10(1)(g).

People v. Bailey · filed 2014-12-16(1)(g)

The court thus concludes that the proffered expert witness testimony, concerning head injuries in children, does constitute “new evidence” as that term is contemplated by CPL 440.10 (1) (g).

Summary denials of motions based on newly discovered evidence under Section 440.10 (1) (g) are reviewable for abuse of discretion as a matter of law.

The People v. Jones · filed 2014-12-19(1)(g)

We therefore make clear that this Court is empowered to conduct a review of the lower courts' summary denial of a defendant's CPL 440.10 (1) (g) motion, and to determine whether that denial constituted an abuse of discretion as a matter of law without running afoul of the jurisdictional limitations set forth in NY Constitution, article VI, § 3 (a).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence that will probably change the result at a new trial.

WHITE, MICHAEL, PEOPLE v · filed 2015-02-06(1)(g)

Under the circumstances, and considering that the case against -3- 1269 KA 14-00932 defendant rested solely on the lab report and the complainant’s testimony, which was sharply challenged at trial, we conclude that the court did not abuse its discretion in determining that the newly discovered DNA evidence will probably change the result if a new trial is granted (see Hicks, 114 AD3d at 602-603).

Section 440.10(1)(g) does not treat evidence as newly discovered if due diligence could have uncovered it before trial ended.

People v. Kot · filed 2015-03-05(1)(g)

Rather, the findings of Houghtalen's reevaluation are "not 'newly discovered' within the meaning of CPL 440.10 (1) (g) since, with the exercise of due diligence, [they] could have been discovered before [the conclusion of the] trial" (People v Chaney, 298 AD2d 617, 620 [2002], lv dismissed and denied 100 NY2d 537 [2003]).

Section 440.10(1)(g) requires new evidence to create a probability that introducing it at trial would have produced a more favorable verdict.

People v. Macon · filed 2015-06-11(1)(g)

The motion court properly found that the claimed new evidence did not create a probability that, if introduced at trial, the verdict would have been more favorable to defendant (see CPL 440.10 [1] [g]).

Section 440.10(1)(g) allows a judgment to be vacated when the defendant proves by a preponderance of the evidence that newly discovered evidence could not have been produced at trial with due diligence and probably would have produced a more favorable verdict.

PIERRE, CHARLES R., PEOPLE v · filed 2015-06-12(1)(g)

Contrary to the People’s contention, County Court properly determined, following a hearing, that defendant proved by a preponderance of the evidence that “[n]ew evidence has been discovered since the entry of [the] judgment . . . , 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 440.10 [1] [g]; see CPL 440.40 [6]).

Evidence known to a defendant at trial does not become newly discovered under section 440.10(1)(g) because the defendant withheld it out of fear of harm.

BACKUS, CODY, PEOPLE v · filed 2015-06-19(1)(g)

We cannot agree with the court that it was in effect “newly discovered” based on defendant’s fear of physical harm to himself and his family.

Section 440.10(1)(g) does not treat studies comparing blind and non-blind identification procedures as newly discovered evidence.

People v. Thomas · filed 2015-08-12(1)(g)

Similarly, the Supreme Court correctly determined that the new evidence proffered by the defendant in support of his motion, which included several studies suggesting that blind identification procedures are more reliable than non-blind procedures, does not qualify as “newly discovered” within the meaning of CPL 440.10 (1) (g) (People v Hamilton, 115 AD3d at 20; see People v Salemi, 309 NY 208, 216 [1955]; People v Tankleff, 49 AD3d 160, 180 [2007]).

Submissions that do not qualify as newly discovered evidence cannot support further inquiry under CPL 440.10(1)(g).

People v. Caldavado · filed 2015-11-23(1)(g)

The other grounds cited in connection with defendant’s CPL 440.10 motion do not warrant further inquiry upon remittal. Defendant’s proffered submissions did not constitute “newly discovered evidence” within the meaning of CPL 440.10 (1) (g).

Section 440.10(1)(g) requires newly discovered evidence to have been discovered after entry of judgment; a recantation known during trial does not qualify.

VERNON, ANDRE, PEOPLE v · filed 2016-02-05(1)(g)

We reject defendant’s contention in appeal No. 2 that the court erred in denying his motion to vacate the judgment pursuant to CPL 440.10 (1) (g) on the ground that the affidavit of the witness recanting her grand jury testimony does not constitute newly discovered evidence inasmuch as defense counsel testified at the Sirois hearing that the witness said that her grand jury testimony was not true, and the prosecutor testified that the witness explained to him why she said that to defense counsel. Thus, the affidavit does not constitute evidence discovered since the entry of the judgment (see People v Backus, 129 AD3d 1621, 1625).

Section 440.10 (1) (g) permits relief based on newly discovered evidence only after a trial verdict, so a guilty plea forecloses that relief.

People v. Currier · filed 2016-03-17(1)(g)

To the extent that defendant contends that the judgment of conviction must be vacated because there is newly discovered evidence in the form of an affidavit of the victim's cousin indicating that the victim admitted to fabricating the accusations against defendant, we note that defendant's plea of guilty foreclosed such relief, which is available only upon a verdict following a trial (see CPL 440.10 [1] [g]; People v Rivera, 117 AD3d 1475, 1475 [2014], lv denied 23 NY3d 1024 [2014]; People v Lahon, 17 AD3d 778, 780 [2005], lv denied 5 NY3d 790 [2005]; People v Sides, 242 AD2d 750, 751 [1997], lv denied 91 NY2d 836 [1997]).

Section 440.10(1)(g) permits denial of a motion based on newly discovered evidence without a hearing when the evidence does not make a more favorable verdict probable.

People v. Jones · filed 2016-04-27(1)(g)

The Supreme Court providently exercised its discretion in denying, without a hearing, the defendant’s motion to vacate his judgment of conviction pursuant to CPL 440.10 (1) (g) on the basis of certain allegedly newly discovered evidence.

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

106454 People v. Larock · filed 2016-05-19(1)(g)

However, "vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial [and d]efendant's plea of guilty therefore foreclosed relief upon this ground" (People v Sides, 242 AD2d 750, 751 [1997] [emphasis added], lv denied 91 NY2d 836 [1997]; see People v Philips, 30 AD3d 621, 622 [2006], lv denied 8 NY3d 949 [2007]).

Section 440.10(1)(g) permits vacatur based on a newly discovered witness whose testimony probably would have produced a more favorable verdict, even if due diligence is disputed for other witnesses.

People v. Hincapie · filed 2016-09-27(1)(g)

Even if, as the People argue, defendant failed to satisfy the requirement of due diligence as to two of the three witnesses he called to testify on his behalf at his CPL 440.10 hearing (see People v Feliciano, 240 AD2d 256 [1st Dept 1997], lv denied 90 NY2d 1011 [1997]), due diligence as to the remaining witness is undisputed, and the court properly granted defendant’s motion based on its finding that her testimony 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]).

Section 440.10(1)(g) permits vacatur when newly discovered scientific or medical evidence would probably change the result at a new trial.

BAILEY, RENE SUSAN, PEOPLE v · filed 2016-11-10(1)(g)

We further conclude that defendant established, by a preponderance of the evidence (see CPL 440.30 [6]), that the newly discovered evidence would probably change the result if a new trial were held today.

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.

MCFARLAND, RODNEY, PEOPLE v · filed 2017-03-24(1)(g)

We therefore conclude that defendant met his burden of establishing, by a preponderance of the evidence (see CPL 440.30 [6]), that the third party’s statement against penal interest was not available at the time of defendant’s trial and “is of such a character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 440.10 [1] [g]; see People v Bailey, 144 AD3d 1562, 1564).

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

DAVIS, II, KEVIN J., PEOPLE v · filed 2017-04-28(1)(g)

CPL 440.10 (1) (g) “permits vacatur of a judgment of conviction on the ground that new evidence has been discovered since the entry of a judgment, which could not have been produced at trial with due diligence ‘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’ ” (People v McFarland, 108 AD3d 1121, 1121, lv denied 24 NY3d 1220, quoting CPL 440.10 [1] [g]; see generally People v Salemi, 309 NY 208, 215). ... We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” (Brensic, 70 NY2d at 15) and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony (see People v Becoats, 117 AD3d 1465, 1467).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence only after a trial verdict, not after a guilty plea.

People v. Howe · filed 2017-05-04(1)(g)

Defendant’s reliance on Wells’ recantation did not constitute newly discovered evidence because it was known prior to his guilty plea and, more importantly, because vacatur of a judgment of conviction on this ground is only available where there has been a “verdict . . . after [a] trial” (CPL 440.10 [1] [g]; see People v Larock, 139 AD3d 1241, 1243 [2016], lv denied 28 NY3d 932 [2016]).

Medical records that could have been presented before sentencing do not qualify as newly discovered evidence under CPL 440.10 (1).

People v. Davis · filed 2017-05-11(1)

While defendant supported her postconviction motion with medical records from the Fulton County Correctional Facility that do raise concerns about her mental capacity, those records do not constitute newly discovered evidence within the meaning of CPL 440.10 (1) and could have been presented to the court prior to her sentencing (see People v Kot, 126 AD3d 1022, 1026 [2015], lv denied 25 NY3d 1203 [2015]).

Section 440.10 permits denial of a motion to vacate when the evidence offered does not qualify as newly discovered evidence.

People v. Dotsenko · filed 2017-05-24(1)(g)

Finally, the Supreme Court properly denied the defendant’s motion to vacate the judgment pursuant to CPL 440.10. ... Moreover, that transcript did not constitute newly discovered evidence (see People v Backus, 129 AD3d 1621, 1623 [2015]).

Section 440.10(1)(g) requires newly discovered evidence offered to vacate a conviction to be admissible.

People v. Davidson · filed 2017-05-24(1)(g)

“Implicit in th[e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible” (People v Tankleff, 49 AD3d at 182 [internal quotation marks omitted]; see 34B NY Jur 2d, Criminal Law: Procedure § 3476 at 42; People v Mazyck, 118 AD3d at 730).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence when admissible evidence creates a probability of a more favorable verdict.

People v. Thibodeau · filed 2017-06-09(1)(g)

In view of the inadmissibility of the alleged third-party admissions, we conclude that the court properly determined that the newly discovered evidence was not "of such character as to create a probability that" the verdict would have been more favorable to defendant if it had been received at trial (CPL 440.10 [1] [g]; see Backus , 129 AD3d at 1624-1625; Bedi , 299 AD2d at 556; People v Jones [appeal No. 1], 256 AD2d 1172, 1172, lv denied 93 NY2d 972; cf. People v Wong , 11 AD3d 724, 725-727).

Section 440.10(1)(g) permits a motion based on newly discovered evidence only when the conviction followed a trial.

People v. Mangarillo · filed 2017-07-27(1)(g)

To the extent that the motion was premised upon newly discovered evidence ( see CPL 440.10 [1] [g]), it was properly denied as this ground is only available where the conviction was obtained following a trial ( see People v Seeber , 94 AD3d 1335, 1336 [2012]).

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

People v. Teneyck · filed 2017-11-21(1)(g)

The court reasonably found that a co-defendant’s posttrial affidavit did not constitute newly discovered evidence within the meaning of CPL 440.10 (1) (g), because the codefendant’s account of his meetings and arrangements with defendant to sell firearms were already known to defendant (see People v Taylor, 246 AD2d 410 [1st Dept 1998], lv denied 91 NY2d 978 [1998]).

Section 440.10(1)(g) requires a defendant seeking to vacate a conviction based on newly discovered evidence to show a probability that the evidence would have produced a more favorable verdict.

People v. Foster · filed 2018-01-24(1)(g)

The court properly found that the defendant failed to meet his burden of establishing that the newly discovered evidence was of such a character as to create a probability that, had it been received at trial, the verdict would have been more favorable to the defendant ( see CPL 440.10[1][g]; People v Mazyck , 118 AD3d 728; People v Cain , 96 AD3d 1072).

Section 440.10(1)(g) does not treat facts known to the defendant at trial as newly discovered evidence.

People v. Lalonde · filed 2018-04-05(1)(g)

This report, however, did not constitute newly discovered evidence ( see CPL 440.10 [1] [g]) to the extent that it concerned facts that were already known to defendant at trial; namely, that Gardner was a cooperating witness for the People ( see People v Cain , 96 AD3d 1072, 1073 [2012], lv denied 19 NY3d 1101 [2012]) [FN5] .

Section 440.10(1)(g) requires newly discovered evidence that the defendant could not have produced at trial despite due diligence and that probably would have led to a more favorable verdict; materiality, cumulativeness, and impeachment bear on that probability rather than serving as separate requirements.

People v. Hargrove · filed 2018-04-18(1)(g)

Accordingly, we conclude that the courts should only construe the core elements of the statute as strict legal requirements ( see CPL 440.10[1][g]; accord People v Jones , 24 NY3d at 637 [Abdus-Salaam, J., concurring]). In other words, a motion for a new trial based on newly discovered evidence should only be granted if the court finds, as a factual matter, that the movant has demonstrated that "[1] [n]ew evidence has been discovered since the entry of a judgment . . . [2] which could not have been produced by the defendant at the trial even with due diligence on his part and [3] 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 440.10[1][g]). The remaining three criteria should be used to evaluate the ultimate issue of whether the new evidence would "create a probability" of a more favorable verdict (CPL 440.10[1][g]).

Section 440.10(1)(g) requires newly discovered evidence to have been discovered after entry of judgment; information disclosed to the defense before trial does not qualify.

People v. Borcyk · filed 2018-05-04(1)(g)

We thus reject defendant's contention that the information concerning the murder contained in the affidavit from the witness constitutes newly discovered evidence. Defendant failed to meet his burden of establishing that the information has been "discovered since the entry of [the] judgment" convicting him of the murder (CPL 440.10 [1] [g]; see People v Backus , 129 AD3d 1621, 1624-1625 [4th Dept 2015], lv denied 27 NY3d 991 [2016]).

A motion to vacate a judgment based on newly discovered evidence requires a showing that the evidence could not have been obtained with due diligence before trial.

People v. Kamp · filed 2018-05-17(1)

We find no merit in defendant's argument that the forensic report challenging the authenticity of the recorded interrogation constituted newly discovered evidence. Defendant failed to demonstrate that such report could not have been obtained with due diligence prior to trial ( see People v Mack , 301 AD2d 863, 864-865 [2003], lv denied 100 NY2d 540 [2003]; People v Wong , 256 AD2d 724, 726 [1998], lv denied 93 NY2d 903 [1999]).

Newly discovered evidence cannot support vacatur under section 440.10(1)(g) if it would be inadmissible at trial and therefore could not produce a more favorable verdict.

People v. Thibodeau · filed 2018-06-14(1)(g)

Consequently, once the hearing court was convinced, upon the testimony of the witnesses and the controlling law governing hearsay evidence, that the newly discovered evidence was inadmissible at trial and therefore not of a character that would have resulted in a verdict more favorable to defendant, it "was not at liberty to shift upon the shoulders of another jury [its] own responsibility" ( see People v Shilitano , 218 NY 161, 180 [1916, Cardozo, J., concurring]).

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

People v. Wong · filed 2018-10-11(1)(g)

The court properly denied defendant's CPL 440.10 motion, made on the ground of newly discovered evidence. Even assuming that the medical evidence pertaining to the victim discovered by the defense met the other requirements of CPL 440.10(g), defendant failed to demonstrate any probability that the evidence would probably change the result ( see e.g . People v Velazquez , 143 AD3d 126, 131 [1st Dept 2016], lv denied 28 NY3d 1189 [2017][citation omitted]).

Section 440.10(1)(g) does not treat facts known to the defendant at trial as newly discovered evidence.

People v. Fraser · filed 2018-10-03(1)(g)

The defendant failed to show that the proffered evidence was discovered after the entry of judgment on his conviction ( see CPL 440.10[1][g]; People v Cain , 96 AD3d at 1073). Rather, the alleged facts to which the confidential informant testified were known to the defendant at the time of his trial ( see People v Cain , 96 AD3d at 1073).

Section 440.10(1)(g) requires due diligence when moving to vacate a conviction based on newly discovered evidence; an unexplained delay of years fails that requirement.

People v. Mallet · filed 2019-01-22(1)(g)

In addition, the motion was not made with due diligence. Although there was already a pending motion to vacate the instant judgment, it was filed years after the discovery of the alleged new evidence without any valid excuse for this delay ( see e.g. People v Friedgood , 58 NY2d 467, 470-71 [1983]; People v Stuart , 123 AD2d 46, 54 [1986]; see also CPL 440.10[1][g]).

Evidence whose contents defense counsel knew before trial is not newly discovered evidence under section 440.10(1)(g).

People v. Werkheiser · filed 2019-04-11(1)(g)

First, defendant failed to show that the video was newly discovered evidence because defense counsel was aware of the contents therein, specifically what the victims said during the recorded interview, prior to defendant's trial ( see People v Lalonde , 160 AD3d 1020, 1027-1028 [2018], lv denied 31 NY3d 1118 [2018]; People v Cain , 96 AD3d 1072, 1073 [2012], lv denied 19 NY3d 1101 [2012]).

Section 440.10(1)(g) permits relief based on newly discovered evidence only when the evidence would probably change the result at a new trial.

People v. Shaw · filed 2019-07-11(1)(g)

Harris' affidavit could constitute newly discovered evidence because he did not testify at his joint trial with defendant ( see People v Staton , 224 AD2d at 984; People v Beach , 186 AD2d at 936). Nevertheless, defendant did not show that this new evidence would "probably change the result if a new trial [was] granted" ( People v Tucker , 40 AD3d at 1214 [internal quotation marks and citations omitted]).

Section 440.10(1)(g) requires newly discovered evidence that would probably change the result, could not have been discovered before trial, is material and noncumulative, and does more than impeach or contradict the trial evidence.

People v. Howard · filed 2019-08-22(1)(g)

On a motion to vacate a judgment of conviction pursuant to CPL 440.10 (1) (g), the defendant must establish that "there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence" ( People v Smith , 108 AD3d 1075, 1076 [4th Dept 2013], lv denied 21 NY3d 1077 [2013] [internal quotation marks omitted]; see People v Salemi , 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]).

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

People v. Rosales · filed 2019-09-24(1)(g)

In any event, regardless of whether the affidavit constitutes newly discovered evidence, the affidavit 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]).

Section 440.10(1)(g) requires due diligence when seeking to vacate a conviction based on newly discovered evidence; an unexplained delay of years after discovering the evidence fails that requirement.

People v. Jenkins · filed 2019-09-24(1)(g)

The motion was not made with due diligence, because it was filed years after the discovery of the alleged new evidence without any valid excuse for the delay ( see CPL 440.10[1][g]; People v Mallet , 168 AD3d 542, 543 [1st Dept 2019], lv denied 33 NY3d 978 [2019]).

Section 440.10(1)(g) authorizes vacatur for newly discovered evidence, while Brady claims fall under subsection (1)(h).

Jeanty v. State of New York · filed 2019-08-22(1)(g)

Contrary to claimant's contention, a Brady claim does not fall under CPL 440.10 (1) (g), which both authorizes the vacatur of a criminal judgment on grounds of newly discovered evidence and constitutes an enumerated ground for a wrongful conviction and imprisonment claim ( see Leka , 16 AD3d at 557-558).

A motion to vacate a conviction based on newly discovered evidence must be made with due diligence after the evidence is discovered.

People v. Clemmons · filed 2019-11-20(1)(g)

Furthermore, to the extent that the defendant contends that alleged new evidence exists which warrants vacatur of his conviction, he failed to demonstrate that his motion was made with due diligence following the discovery of the purportedly new evidence ( see CPL 440.10[1][g]; People v Kandekore , 300 AD2d 318; People v Stuart , 123 AD2d 46).

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 change the verdict; evidence that merely impeaches or contradicts trial proof is insufficient.

People v. Williams · filed 2020-04-16(1)(g)

Supreme Court was also correct in concluding that this evidence — to the extent that it was newly discovered evidence that could not, with due diligence, have been produced at trial — merely "impeach[ed] or contradict[ed]" the trial evidence and would not have probably changed the verdict so as to warrant setting aside the judgment pursuant to CPL 440.10 (1) (g) ( People v Sides , 242 AD2d 750, 751 [1997], lv denied 91 NY2d 836 [1997]; see People v Shaw , 174 AD3d 1036, 1038-1039 [2019], lv dismissed 34 NY3d 1081 [2019]; People v Sharpe , 70 AD3d 1184, 1186 [2010], lv denied 14 NY3d 892 [2010]).

Section 440.10(1)(g) requires newly discovered evidence that could not have been developed at trial and would probably change the trial’s outcome.

People v. Gardine · filed 2020-07-16(1)(g)

Defendant asserts that his conviction should be vacated under CPL 440.10(1)(g) because the information contained in the investigator's phone conversations with the two witnesses constituted newly discovered evidence. ... Accordingly, defendant was in a position to develop this issue at his trial, by cross-examination of the testifying eyewitness or otherwise, and thus the belated revelation to the investigator does not qualify as newly discovered. Furthermore, defendant has not shown that the evidence would probably change the outcome of the trial.

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

People v. Krivak · filed 2020-09-30(1)(g)

Here, we find that the newly discovered evidence "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 440.10[1][g]).

Section 440.10(1)(g) requires newly discovered evidence that would probably have produced a more favorable verdict.

People v. Harley · filed 2020-10-15(1)(g)

Defendant has not demonstrated that the witness should be considered newly discovered within the meaning of the statute (CPL 440.10[1][g]). Furthermore, regardless of whether the witness's proposed testimony constitutes newly discovered evidence, it 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" ( id .).

Section 440.10(1)(g) permits vacatur for newly discovered evidence only when there is a reasonable probability that the evidence would have produced a more favorable verdict.

People v. Ivanitsky · filed 2020-11-04(1)(g)

Given the highly questionable reliability of the proffered evidence, its tangential relevance to the crimes of which the defendant was convicted, and the strength of the other evidence [*2]presented by the prosecution at trial, there was no reasonable probability that the verdict would have been more favorable to the defendant had the proffered newly discovered evidence been introduced at trial ( see CPL 440.10[1][g]), and a hearing on the motion was not warranted ( see People v Hall , 28 AD3d 678, 679; People v Fields , 287 AD2d 577, 578; People v Rodriguez , 201 AD2d 683).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence when the evidence probably would have produced a more favorable verdict.

People v. DeLeon · filed 2021-01-13(1)(g)

Contrary to the People's contention, the record supports the court's finding that, based on Scarcella's and Chmil's significant involvement in the case, newly discovered evidence of their misconduct would have furnished the jury with a different context in which to view all of the evidence in this case, including the defendant's purported inculpatory statement made to these detectives which the defendant has denied making, and further, that evidence of their misconduct was of such a character to create a probability that, had such evidence been received at trial, the verdict would have been more favorable to the defendant ( see People v Hargrove , 162 AD3d at 59-60).

Section 440.10(1)(g) does not treat material as newly discovered evidence when the defendant knew of its existence before trial, even if technology later made it recoverable.

People v. Hartle · filed 2021-03-04(1)(g)

We find defendant's contention that these text messages and photographs constitute newly discovered evidence to lack merit because the existence of the text messages and photographs were not discovered since the trial; rather, defendant knew about their existence long before the trial ( see CPL 440.10 [1] [g]; People v Lalonde , 160 AD3d 1020, 1027 [2018], lv denied 31 NY3d 1118 [2018]; People v Cain , 96 AD3d 1072, 1073-1074 [2012], lv denied 19 NY3d 1101 [2012]; People v Craft , 123 AD2d 481, 483 [1986], lv denied 69 NY2d 745 [1987]).

Section 440.10(1)(g) allows a claim based on newly discovered recantation evidence when the recantation is more than merely impeaching.

People v. Stetin · filed 2021-03-18(1)(g)

Contrary to County Court's determination, we do not find that the evidence of the victim's recantations is "merely impeachment" evidence such that it does not constitute newly discovered evidence ( see generally People v Salemi , 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]).

Section 440.10 (1) (g) does not treat evidence as newly discovered if the defendant could have obtained it before trial with due diligence.

People v. Stanton · filed 2021-12-16(1)(g)

Considering those earlier affidavits and that the parents attended every court appearance in support of defendant, as well as filed a motion to vacate the orders of protection, defendant has not demonstrated that he could not, with due diligence, have obtained this information from his parents prior to trial. Thus, his parents' latest affidavits cannot be considered newly discovered evidence pursuant to CPL 440.10 (1) (g) ( see People v Hamilton , 115 AD3d 12, 20 [2014]).

Section 440.10(1)(g)'s newly discovered evidence ground is not satisfied by habeas findings made in connection with equitable tolling and vacatur for ineffective assistance of counsel.

Bryant v. State of New York · filed 2022-03-03(1)(g)

Thus, the habeas findings are not sufficient to constitute the CPL 440.10(1)(g) ground for vacatur that is included in Court of Claims Act § 8-b(3)(b) ( see Rosario v State of New York , 191 AD3d 586 [1st Dept 2021], lv denied 37 NY3d 915 [2021]; see also Turner v State of New York , 50 AD3d 890 [2d Dept 2008]).

Under § 440.10(1)(g), evidence that a witness recanted trial testimony can support a newly discovered evidence claim and warrant a hearing.

People v. Werkheiser · filed 2022-09-15(1)(g)

The People, in response, arguethat the affidavits merely constitute impeachment evidence and therefore fail to satisfy the test for newly discovered evidence[*3]. We disagree, noting that "'evidence of recantation upon the part of a witness is not merely evidence which tends to impeach or discredit a witness. Its character is much more fundamental. If the recantation be true it may in certain cases destroy the basis upon which the judgment of conviction rests'" ( People v Stetin , 192 AD3d at 1334 [brackets omitted], quoting People v Shilitano , 218 NY 161, 170 [1916]). ... Accordingly, we conclude that the six affidavits, together with the copies of text messages between victim B and some of the affiants, [FN1] were sufficient to warrant the holding of a hearing, such that County Court's denial of defendant's motion on the ground of newly discovered evidence in the absence of such a hearing was error.

Section 440.10(1)(g) does not permit vacatur based on a recantation that merely impeaches or contradicts trial testimony.

People v. Peasley · filed 2022-09-15(1)(g)

Thus, we find that the victim's subsequent recantation did not present newly discovered evidence [*6]sufficient to warrant relief pursuant to CPL 440.10 (1) (g) ( see People v Pringle , 155 AD3d 1660, 1660-1661 [4th Dept 2017], lv denied 31 NY3d 986 [2018]; People v Davidson , 150 AD3d 1142, 1145 [2d Dept 2017], lv denied 30 NY3d 1018 [2017]; People v Larock , 139 AD3d 1241, 1243-1244 [3d Dept 2016], lv denied 28 NY3d 932 [2016]; People v Smith , 108 AD3d at 1077).

Newly discovered evidence does not warrant vacating a conviction or holding a hearing when, considered against the other evidence of guilt, it would not create a reasonable probability of a more favorable verdict.

People v. Spencer · filed 2022-09-28(1)(g)

Here, given the strength of the other evidence presented by the prosecution at trial, including ballistics evidence and testimony from witnesses other than George, which, inter alia, linked the defendant to the gun used in all three incidents, the Supreme Court's determination that there was no reasonable probability that the verdict would have been more favorable to the defendant had the proffered newly discovered evidence been introduced at trial is supported by the record ( cf. People v DeLeon , 190 AD3d 764; People v Hargrove , 162 AD3d 25), and a hearing on that branch of the motion which was to vacate the judgment on the basis of newly discovered evidence was not warranted.

Section 440.10(1)(g) does not authorize vacating a conviction based on newly discovered evidence when the defendant pleaded guilty rather than being found guilty after trial.

People v. Clark · filed 2022-10-06(1)(g)

To the extent that the witness' preplea and postjudgment affidavits, other evidence or witness accounts or the extent of counsel's investigation are claimed to constitute newly discovered evidence, vacatur on this ground is not authorized where, as here, a guilty plea was entered rather than a "verdict of guilty after trial" (CPL 440.10 [1] [g]; see People v Tiger , 32 NY3d at 99; People v Howe , 150 AD3d at 1323 n1).

Section 440.10(1)(g) requires newly discovered evidence to be likely to change the result on retrial.

People v. Stokes · filed 2022-12-15(1)(g)

The balance of defendant's motion to vacate, which is grounded upon defendant's claim that the undisclosed misdemeanor conviction constitutes newly discovered evidence ( see CPL 440.10 [1] [g]), is equally unavailing. ... Even assuming, without deciding, that the People indeed never disclosed the witness' misdemeanor conviction and/or her "File 15" to the defense, we simply are unable to conclude — viewed in the context of the witness' extensive criminal history, which included convictions for crimes that directly impacted upon her character and integrity — that disclosure of the subject conviction likely would lead to a different outcome for defendant.

Section 440.10(1)(g) does not apply to judgments entered on guilty pleas.

Stacey v. State of New York · filed 2023-03-17(1)(g)

Although claimant contends that vacatur was granted based on newly discovered evidence pursuant to CPL 440.10 (1) (g), we note that the vacated conviction was entered on claimant's plea of guilty and, "[b]y its express terms, [CPL 440.10 (1) (g)] is inapplicable to judgments obtained by guilty pleas" ( People v Tiger , 32 NY3d 91, 99 [2018]).

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

The People v. Hartle · filed 2023-04-20(1)(g)

Nor has defendant met CPL 440.10 (g)’s due diligence prong, which requires that defendant show that the evidence could not have been produced at the trial even with due diligence on the part of defendant.

Section 440.10(1)(g) does not provide a basis to vacate a judgment when the purportedly new evidence is cumulative impeachment evidence that would not have changed the trial outcome.

People v. Chacon · filed 2023-12-05(1)(g)

The transfer agreement did not constitute newly discovered evidence ( see CPL 440.10[1][g]), for the same reasons that it would have been cumulative impeachment evidence and would not have changed the outcome of the trial ( see People v Velazquez , 143 AD3d 126, 131 [1st Dept 2016], lv denied 28 NY3d 1189 [2017]; People v Quan Hong Ye , 92 AD3d 407, 407 [1st Dept 2012], lv denied 19 NY3d 866 [2012]).

Section 440.10 requires a defendant seeking to vacate a judgment based on newly discovered evidence to show that the evidence would probably change the result at a new trial.

People v. Jefferson · filed 2024-07-24(1)(g)

Contrary to the defendant's contention, the Supreme Court also properly denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of newly discovered evidence. The defendant failed to meet his burden of demonstrating that the aforesaid recantation and the retraction of that recantation would probably change the result if a new trial were granted ( see People v Jenkins , 84 AD3d 1403, 1405-1406; People v McGuire , 44 AD3d 968, 968-969) .

Section 440.10(1)(g) permits denial of a newly discovered evidence motion without a hearing when the defendant fails to act with due diligence or show that the evidence would probably change the result upon retrial.

People v. Wells · filed 2024-07-31(1)(g)

The Supreme Court properly denied that branch of the defendant's motion which was to vacate the judgment of conviction based on newly discovered evidence ( see CPL 440.10[1][g]). Failure to make the motion with due diligence following the discovery of the new evidence warrants denial of the motion without a hearing ( see People v Green , 201 AD3d 814). In any event, insofar as the new evidence was in fact newly discovered, no hearing is warranted as the defendant failed to show that the new evidence would probably change the result upon retrial ( see People v Stokes , 211 AD3d 1243, 1246).

Section 440.10(1)(g-1)(2) permits vacatur based on forensic DNA testing performed after judgment when there is a reasonable probability that the verdict would have been more favorable to the defendant.

People v. Lorenzo · filed 2024-09-27(1)(g-1)(2)

Where forensic DNA testing has been performed since entry of the judgment, [*2]vacatur is warranted where the court determines "that there exists a reasonable probability that the verdict would have been more favorable to the defendant" (CPL 440.10 [1] [g-1] [2]). We conclude that the court did not abuse its discretion in determining that the newly discovered DNA evidence will probably change the result if a new trial is granted ( see White , 125 AD3d at 1374) or that there existed a reasonable probability that the verdict would have been more favorable to defendants had the DNA evidence been admitted at trial ( see People v Robinson , 214 AD3d 904, 906 [2d Dept 2023], lv denied 40 NY3d 936 [2023]; People v Hicks , 114 AD3d 599, 602 [1st Dept 2014]).

Section 440.10(1)(g) does not warrant vacatur for evidence primarily aimed at impeachment that could have been produced before trial with due diligence and was unlikely to change the verdict.

People v. Clark · filed 2024-10-17(1)(g)

County Court properly concluded that this did not constitute newly discovered evidence within the meaning of CPL 440.10 (1) (g), not only because the psychologist's claims were primarily aimed at impeaching the testimony of the first victim, but also because it could have been produced before trial with due diligence and because, in view of the testimony of the second victim, it was unlikely to change the result if a new trial were granted ( see People v Kot , 126 AD3d 1022, 1026-1027 [3d Dept 2015], lv denied 25 NY3d 1203 [2015]; People v Ulrich , 265 AD2d 884, 885 [4th Dept 1999], lv dismissed 94 NY2d 799 [1999]; cf. People v Werkheiser , 208 AD3d 1474, 1475-1477 [3d Dept 2022]).

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. Dixon · filed 2024-12-20(1)(g)

However, we conclude that the evidence in question is 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]; see generally People v Backus , 129 AD3d 1621, 1625 [4th Dept 2015], lv denied 27 NY3d 991 [2016]).

Section 440.10(1)(g) requires newly discovered evidence to be material, previously undiscoverable with due diligence, noncumulative, more than impeachment, and likely to change the trial result.

People v. Brown · filed 2024-12-24(1)(g)

To vacate a judgment of conviction based on newly discovered evidence pursuant to CPL 440.10(1)(g), "the 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 Velazquez , 143 AD3d 126, 131 [1st Dept 2016], lv denied 28 NY3d 1189 [2017] [citations omitted]).

Section 440.10(1)(g) permits vacatur based on newly discovered evidence when the defendant could not have obtained it with due diligence and it would likely have altered the verdict.

People v. Huggins · filed 2025-03-06(1)(g)

Nor has defendant established that newly discovered evidence required vacatur of his conviction ( see CPL 440.10[1][g]). Defendant has failed to explain why he could not have obtained the data underlying the criminalist's article by exercising due diligence ( see People v Salemi , 309 NY 208, 215-216 [1955], cert denied 350 US 950 [1956]). Further, even if defendant had confronted the criminalist with the data, it would not likely have altered the verdict, where the People could have disproved the claimed error rate on redirect examination or by calling another OCME witness to testify.

Section 440.10(1)(g) permits vacatur based on newly discovered evidence when that evidence creates a probability of a more favorable verdict.

People v. Edmondson · filed 2025-04-09(1)(g)

Under the circumstances of this case, there was no reasonable probability that the verdict with respect to the convictions of murder in the second degree relating to the shooting of May, attempted murder in the second degree relating to the shooting of Fleming, enterprise corruption, and criminal possession of a weapon in the second degree relating to the shootings of May and Fleming, respectively, would have been more favorable to the defendant had the proffered newly discovered evidence been introduced at trial ( see People v Spencer , 208 AD3d at 1371; People v Ivanitsky , 188 AD3d 719, 720).

Section 440.10(1)(g) does not warrant vacating a conviction based on a witness’s recantation when it would not likely change the verdict.

People v. Townsend · filed 2025-10-15(1)(g)

Therefore, this court finds that Hernandez's testimony is not newly discovered evidence warranting a vacatur of the defendant's conviction pursuant to CPL § 440.10(1)(g).

Section 440.10(1)(g) does not provide relief for evidence that was available to the defendant at trial.

People v. Saunders · filed 2025-12-24(1)(g)

County Court also properly denied, without a hearing, defendant's claim that he had newly discovered evidence that the state crime lab was not accredited, as information regarding the lab's accreditation was available to defendant at the time of trial ( see CPL 440.10 [1] [g]; People v Lalonde ,160 AD3d 1020, 1027 [3d Dept 2018], lv denied 31 NY3d 1118 [2018]).

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

People v. Sims · filed 2026-03-11(1)(g)

The resolution of the inquiry into whether the evidence adduced at the hearing "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 440.10[1][g]) is dispositive of a court's determination of a motion pursuant to CPL 440.10(1)(g) ( see People v Tankleff , 49 AD3d at 180).

Section 440.10(1)(g) requires evidence offered as newly discovered to be new.

People v. Wisdom · filed 2026-04-28(1)(g)

As a preliminary matter, none of the proffered evidence was new.

Section 440.10(1)(g) requires evidence to be newly discovered and likely to change the result upon retrial.

People v. Jacob · filed 2026-05-20(1)(g)

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, that branch of his motion which was to vacate the judgment of conviction on the ground of newly discovered evidence ( see CPL 440.10[1][g]), consisting of two reports, which the defendant commissioned after the verdict. The defendant failed to demonstrate that the reports constituted newly discovered evidence and, in any event, failed to show that the reports would probably change the result upon retrial ( see People v Wells , 229 AD3d 812; People v Spencer , 208 AD3d 1370).

The Court of Appeals cannot review the discretionary denial of a motion to vacate a judgment based on newly discovered evidence.

People v. Schulz · filed 2005-05-05(1)(g)

While defendant additionally seeks relief on the ground of newly discovered evidence, "[t]his [C]ourt ... has no power to review the discretionary denial of a motion to vacate judgment upon the ground of newly discovered evidence" ( People v Crimmins, 38 NY2d 407, 409 [1975]; see also People v Smith, 63 NY2d 41, 66 n 4 [1984]; People v Brown, 56 NY2d 242, 246 [1982]).

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

Young v. McGinnis · filed 2006-02-01(1)(g)

It is appropriate for a state to insist that a petitioner seeking to overturn his conviction on the basis of new evidence demonstrate the probability that, had such “new” evidence been received at trial, the verdict would have been more favorable to the petitioner. ... Petitioner failed to satisfy this requirement.

Section 440.10(1)(g) requires adequate proof that newly discovered evidence could not have been produced at trial with due diligence; a motion lacking that proof may be denied without a hearing.

People v. Hamilton · filed 1995-03-06(1)(g)

Contrary to the defendant’s contentions, the court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction based on newly discovered evidence, inasmuch as, among other things, he failed to submit adequate proof that the alleged newly discovered evidence could not have been produced by the defense at the trial with due diligence ... 535).

CPL 440.10 does not provide a motion to vacate for an alleged error clear from the face of the record.

People v. Rhode · filed 2021-05-07

Preliminarily, we agree with defendant that, contrary to the People's assertion, an exception to the preservation requirement applies here inasmuch as defendant "could not have brought a CPL 220.60 (3) plea withdrawal motion . . . because the plea and sentence occurred during the same proceeding[, and] he could not have filed a CPL 440.10 motion because the [alleged] error in th[is] case[ is] 'clear from the face of the . . . record' " ( People v Tyrell , 22 NY3d 359, 364 [2013]; see People v Conceicao , 26 NY3d 375, 381-382 [2015]; People v Sougou , 26 NY3d 1052, 1054 [2015]).

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim in its entirety when the claim requires consideration of matters outside the record.

People v. Byers · filed 2026-03-18

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Padilla-Padilla , 233 AD3d at 711; People v Rodriguez , 224 AD3d 783, 785).

Section 440.10 is the procedure for raising an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Smalls · filed 2026-02-17

Defendant's claim that his counsel was ineffective for failing to raise a Bruen claim is unreviewable on direct appeal "because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion" ( People v Holder , 224 AD3d 513, 514 [1st Dept 2024], lv denied 41 NY3d 1018 [2024]).

Section 440.10 provides the motion procedure for an ineffective-assistance claim that depends on matters outside the direct appeal record.

People v. Francis · filed 2026-03-10

Defendant's contention that his counsel rendered ineffective assistance in failing to raise his Second Amendment challenge is unreviewable on direct appeal as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion ( see People v Gray , 230 AD3d 1039, 1039 [1st Dept 2024], lv denied 42 NY3d 1035 [2024]).

Section 440.10 provides the procedure for raising ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. D.H. · filed 2026-03-10

Defendant's contention that her counsel rendered ineffective assistance by failing to preserve her Second Amendment claims is unreviewable on direct appeal because it involves matters not reflected in the record and thus must be raised in a CPL 440.10 motion ( see People v Williams , 237 AD3d 569, 570 [1st Dept 2025], lv denied 44 NY3d 1014 [2025]).

CPL 440.10 provides the procedure for raising an ineffective-assistance claim that depends on matters outside the record and cannot be reviewed on direct appeal.

People v. Rodriguez · filed 2026-03-24

Defendant's contention that his counsel rendered ineffective assistance in challenging New York's then-former proper-cause requirement, rather than challenging the "good moral character" provision, is "improperly raised for the first time in his reply brief" and is "unreviewable on direct appeal, as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion" ( Jacobs , 248 AD3d 200).

A CPL 440.10 motion is the proper vehicle for ineffective assistance claims that depend on matters outside the record.

People v. Brown · filed 2026-04-09

To the extent that defendant's ineffective assistance claims concern matters outside the record — including his assertion that counsel failed to pursue a CPL 30.30 speedy trial claim where the People allegedly failed to disclose certain photographic evidence — they are more properly the subject of a CPL 440.10 motion (see People v Lewis, 234 AD3d 1209, 1210 [3d Dept 2025], lv denied 43 NY3d 1009 [2025]; People v Ulmer, 226 AD3d at 1260).

Section 440.10 provides the motion procedure for a claim based on facts outside the record that cannot properly be raised on direct appeal.

People v. Williams · filed 2026-04-22

The defendant's contention that the People withheld certain Brady material (see Brady v Maryland, 373 US 83) is not properly raised on direct appeal and should be raised in a motion pursuant to CPL 440.10 to vacate the judgment, because the facts supporting the defendant's contention are dehors the record (see People v Abad, 208 AD3d 892, 894; People v Petion, 186 [*2]AD3d 1410, 1411).

CPL 440.10 is the procedure for raising an ineffective assistance claim that depends on matters outside the direct appeal record.

People v. Faulkner · filed 2026-04-23

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and thus must be raised in a CPL 440.10 motion (see People v Williams, 237 AD3d 569, 570 [1st Dept 2025], lv denied 44 NY3d 1014 [2025]; People v Anderson, 234 AD3d 603, 603-604 [1st Dept 2025], lv denied 43 NY3d 943 [2025]).

Section 440.10 provides the appropriate proceeding to review an ineffective-assistance claim based on matters outside the trial record.

People v. Bredt · filed 2026-04-24

Furthermore, to the extent that defendant contends that defense counsel was ineffective in failing to call a particular witness at trial, that contention is based on matters outside the record, and we note that a CPL 440.10 proceeding is the appropriate forum for reviewing that claim (see People v Reeder, 221 AD3d 1592, 1593 [4th Dept 2023], lv denied 41 NY3d 944 [2024]; People v Belton, 199 AD3d 1373, 1374-1375 [4th Dept 2021], lv denied 37 NY3d 1159 [2022]; see generally People v Maffei, 35 NY3d 264, 269-270 [2020]).

Section 440.10 provides a forum for considering material outside the record that cannot be considered on direct appeal.

People v. Hall · filed 2025-12-03(1)(g)

Moreover, the defendant's arguments are based on matters dehors the record, which may not be considered on direct appeal ( see People v Saka , 197 AD3d 1331, 1332; People v Manzanales , 170 AD3d 752, 753). A CPL 440.10 proceeding is the appropriate forum for considering such material with respect to the subject judgment of conviction ( see id. § 440.10[1][g]).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the record.

People v. Escobar · filed 2025-12-17

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Ponce , 232 AD3d at 742).

CPL 440.10 provides the appropriate forum for reviewing an ineffective assistance claim that requires consideration of matters outside the record.

People v. Palacios-Acosta · filed 2025-12-24

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805; People v Maxwell , 89 AD3d at 1108).

CPL 440.10 is the appropriate forum for reviewing an ineffective assistance claim in its entirety when resolving it requires matter outside the direct appeal record.

People v. Smith · filed 2025-10-08

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Padilla-Padilla , 233 AD3d 711; People v Freeman , 93 AD3d 805, 806).

CPL 440.10 provides the forum for reviewing a mixed ineffective-assistance claim in its entirety when resolving it requires matter outside the record.

People v. Bautista · filed 2023-11-08

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on these direct appeals ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10(1)(e) provides a way to raise claims about a defendant's mental state at a guilty plea when they depend on facts outside the appellate record.

People v. Stevens · filed 2023-10-05(1)(e)

To the extent that defendant's allegations regarding his mental state at the time of his guilty plea concern matters outside the record, they are more properly raised in the context of a CPL article 440 motion ( see CPL 440.10 [1] [e]; see e.g. People v Brown , 23 AD3d 702, 702-703 [3d Dept 2005], lv denied 6 NY3d 774 [2006]).

Section 440.10 provides a forum for considering evidence outside the record when challenging a judgment of conviction.

People v. Saka · filed 2021-09-29(1)(g)

Portions of the appellant's main brief refer to new evidence that was not before the Supreme Court prior to the judgment of conviction being rendered and constitute matter dehors the record, which may not be considered on direct appeal from the judgment ( see People v Manzanales , 170 AD3d 752, 753; People v Wallace , 144 AD3d 775, 776). A CPL 440.10 proceeding is the appropriate forum for considering such material with respect to the subject judgment of conviction ( see CPL 440.10[1][g]).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the trial record.

People v. McTootle · filed 2021-08-04

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d at 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the trial record.

People v. Fells · filed 2021-11-17

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10(2)(b) does not bar a motion to vacate when resolving the claim requires facts outside the direct appeal record.

People v. Regan · filed 2021-07-01(2)(b)

However, County Court erred in concluding, under CPL 440.10 (2) (b), that sufficient facts appeared in the record on appeal to resolve defendant's claim of actual innocence and his claim of ineffective assistance of counsel based upon defense counsel's purported failure to investigate witnesses.

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim based partly on matters outside the record.

People v. Wilcox · filed 2021-05-19

Similarly, the defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v Maxwell , 89 AD3d 1108, 1109). Under the circumstances, a CPL 440.10 proceeding is the appropriate forum for reviewing such a claim in its entirety, and we decline to review it on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 is the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim cannot be resolved without matter outside the record.

People v. Martinez · filed 2021-05-26

Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Maxwell , 89 AD3d at 1109).

CPL 440.10 is the appropriate forum for reviewing an ineffective assistance claim in its entirety when the claim depends partly on matters outside the record.

People v. Moncayo · filed 2021-06-09

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 permits a court to hear an ineffective assistance claim in its entirety when the claim involves both matters in the trial record and matters outside it.

People v. Mack · filed 2021-06-17(2)(a), (b)

We agree with defendant that County Court erred in limiting the scope of the hearing regarding his claim of ineffective assistance of counsel to only those alleged errors of defense counsel that could not have been raised on direct appeal ( cf. CPL 440.10 [2] [a], [b]).

Section 440.10 provides a forum to review an ineffective assistance claim that depends partly on facts outside the trial record.

People v. Rizzo · filed 2021-06-30

Under the circumstances, a CPL 440.10 proceeding is the appropriate forum for reviewing such a claim in its entirety, and we decline to review it on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the forum for reviewing an ineffective-assistance claim in its entirety when the claim requires evidence outside the record.

People v. Brissett · filed 2021-07-21

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides a forum to review an entire ineffective assistance claim when resolving it requires facts outside the record.

People v. Momoh · filed 2021-03-17

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim requires consideration of matter outside the record.

People v. Martinez-Galdamez · filed 2021-04-07

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Pelzer , 189 AD3d 1268, 1268-1269; People v Maxwell , 89 AD3d at 1109).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective-assistance claim that requires consideration of matters outside the record.

People v. Cooper · filed 2021-04-21

Since the defendant's claim of ineffective assistance [*2]of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 allows a mixed ineffective-assistance claim involving matters both in and outside the direct-appeal record to be addressed in a motion to vacate.

People v. Thacker · filed 2019-06-13(1)(a), (1)(h)

As defendant's ineffective assistance of counsel claims rely upon matters appearing both in the record on direct appeal and outside of the record, they present a mixed but unified claim that is properly addressed in a CPL 440.10 motion to vacate ( see People v Taylor , 156 AD3d 86, 91-92 [2017], lv denied 30 NY3d 1120 [2018]). The motion papers did not specify which subsections defendant was relying upon; we find that his contentions are raised under CPL 440.10 (1) (a) and (h).

CPL 440.10 provides a collateral proceeding to develop facts needed for an ineffective-assistance claim that the trial record cannot resolve.

The People v. Lopez-Mendoza · filed 2019-06-13

Here, it is “essential[] that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or ... post-conviction proceeding brought under CPL 440.10” (People v Brown, 45 NY2d 852, 853-854 [1978]).

Section 440.10 provides the motion required to raise an ineffective-assistance claim based on counsel’s immigration advice when that advice is not reflected in the record.

People v. Ramos · filed 2019-02-07

Defendant's claim that his counsel provided him with ineffective assistance regarding the immigration consequences of his plea ( see Padilla v Kentucky , 559 US 356 [2010]) is unreviewable on direct appeal because it involves matters not reflected in the record, and thus requires a CPL 440.10 motion ( see People v Pastor , 28 NY3d 1089, 1091 [2016]).

Section 440.10 is the appropriate forum for reviewing an ineffective-assistance claim in its entirety when resolving the claim requires matters outside the record.

People v. Palmer · filed 2019-02-20

As the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim cannot be resolved without matters outside the record.

People v. Law · filed 2019-02-20

Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Freeman , 93 AD3d at 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matter outside the trial record.

People v. Ortiz · filed 2019-03-06

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Hili , 158 AD3d 647, 648; People v Freeman , 93 AD3d 805, 806).

Section 440.10 provides the appropriate forum to review an ineffective assistance claim based partly on the record and partly on matters outside it.

People v. Rodriguez-Abreu · filed 2019-03-13

The defendant's contention, in effect, that ineffective assistance of counsel affected the voluntariness of his plea is based, in part, on matter on the record and, in part, on matter outside the record, and thus, constitutes a mixed claim of ineffective assistance ( see People v Evans , 16 NY3d 571, 575; People v Maxwell , 89 AD3d 1108, 1109). Therefore, a CPL 440.10 proceeding is [*2]the appropriate forum for reviewing the claim in its entirety ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

A CPL 440.10 proceeding is the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the record.

People v. Rodriguez · filed 2019-03-20

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Hili , 158 AD3d at 648; People v Freeman , 93 AD3d 805, 806).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when resolving it requires matter outside the trial record.

People v. Beaupre · filed 2019-03-20

As the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim requires consideration of matters outside the record.

People v. Picart · filed 2019-04-03

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Benson , 164 AD3d 911, 912; People v Crosby , 133 AD3d 681, 682).

Section 440.10 provides a forum for reviewing an ineffective-assistance claim that requires matters outside the trial record.

People v. Croom · filed 2019-04-03

Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Freeman , 93 AD3d at 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum to review an ineffective assistance claim in its entirety when the claim requires evidence outside the record.

People v. Bermudez · filed 2019-04-03

Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Freeman , 93 AD3d at 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim that depends on matters outside the record.

People v. Neilson · filed 2018-12-12

Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Sanders , 148 AD3d 846, 846; People v Crosby , 133 AD3d 681, 682; People v Martial , 125 AD3d 688, 689; People v Freeman , 93 AD3d 805, 806).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the record.

People v. Joseph · filed 2018-12-12

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Leverich , 139 AD3d at 757; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 (2) (c) does not bar an ineffective-assistance claim based on matters both in and outside the trial record.

People v. Jones · filed 2018-05-10(2)(c)

Because a claim of ineffective assistance of counsel "constitutes a single, unified claim that must be assessed in totality" and defendant's allegations are grounded upon matters appearing both on the record and outside the record, CPL 440.10 (2) (c) does not operate to bar defendant's claim of ineffective assistance of counsel ( People v Taylor , 156 AD3d 86, 91-92 [2017], lv denied 30 NY3d 1120 [2018]; see People v Maxwell , 89 AD3d 1108, 1109 [2011]; see generally People v Evans , 16 NY3d 571, 575 n 2 [2011], cert denied 565 US 912 [2011]).

Section 440.10 provides the appropriate forum for reviewing an ineffective assistance claim in its entirety when the claim requires matter outside the appellate record.

People v. Black · filed 2018-05-16

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Maxwell, 89 AD3d at 1109).

Section 440.10 provides a motion to explore an ineffective-assistance claim that depends on matters outside the appellate record.

People v. Richardson · filed 2018-06-21

Thus, as this claim involves matters outside of the record, it [*3]is more properly explored through a CPL 440.10 motion ( see People v Graham , 138 AD3d 1242, 1244 [2016], lv denied 28 NY3d 930 [2016]; People v Harrison , 304 AD2d 376, 377 [2003], lv denied 100 NY2d 621 [2003]).

Section 440.10 provides a forum for reviewing an ineffective-assistance claim that requires evidence outside the trial record.

People v. Cunny · filed 2018-07-11

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v Marryshow , 135 AD3d 964, 965; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

CPL 440.10 provides the motion procedure for ineffective-assistance claims that depend on discussions outside the appellate record.

People v. Gelling · filed 2018-07-25

Defendant's contention, that he was deprived of effective assistance of counsel regarding his decision to reject a pretrial plea offer, "involves strategic discussions between defendant and his attorney outside the record on appeal, and it must therefore be raised by way of a motion pursuant to CPL 440.10" ( People v Manning , 151 AD3d 1936, 1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]; see People v Surowka , 103 AD3d 985, 986-987 [3d Dept 2013]).

Section 440.10 requires a defendant to raise a claim of inadequate or erroneous counsel advice about the immigration consequences of a guilty plea in a motion to vacate judgment.

People v. Sokolov (Alexander) · filed 2016-04-13

If it is defendant's claim that his counsel's advice was inadequate or erroneous, it must be raised in a motion pursuant to CPL 440.10.

Section 440.10 provides the motion procedure for ineffective assistance claims that depend on facts outside the direct-appeal record.

People v. Mitchell · filed 2016-02-02

Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal.