ARTICLE 440 MOTION: NEWLY DISCOVERED EVIDENCE AND THE DUE DILIGENCE STANDARD

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CPL 440.10 (1) (g) empowers a trial court to vacate a conviction on the basis of newly discovered evidence “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.” The burden is on the defendant on a CPL 440 motion; as we have explained previously, “the statute is plain that the initial failure by a defendant to carry his or her burden of coming forward with sworn allegations substantiating the essential facts in the 440 motion does not shift the burden to the People in their responsive pleadings” (People v Wright, 27 NY3d 516, 522 [2016]). We review a trial court’s summary denial of such a motion for abuse of discretion (see People v Jones, 24 NY3d 623, 630 [2014]).

See Also, 440 Motion and Abuse of Discretion by lower court 

Newly Discovered Evidence Standard and Destroyed Text Messages.

The Court of Appeals found that the evidence proffered is far from newly discovered—it is evidence the defendant knew about, was involved in the creation of, and believed he destroyed well before trial in an effort to conceal criminal activity. As defendant affirmed, he “deleted the photographs and/or text messages because [he] did not want anyone to see them.” This is unsurprising given that the material, including nude photographs he took of the victim, was compelling evidence of his sexual contact with a minor. Defendant cannot now claim that because certain “technology” was not available to recover the incriminating texts and photographs that he attempted to destroy, that material, now recovered, somehow qualifies as “newly discovered evidence.

The 440 Motion, Newly Discovered Evidence and Due Diligence Requirement

The Court found that defendant did not meet 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. Nowhere in defendant’s conclusory submissions is there any showing that the evidence was inaccessible before trial, or any indication that defendant tried to obtain it. Defendant received the State Police report of the evidence extracted from the victim’s cell phone well before trial, at which point defendant was aware that the messages were not recovered from her device. Defendant took no action in response; for example, he did not seek to obtain the materials from his cell phone service provider or a forensic examination of his phone or the victim’s phone. Rather, he used the absence of evidence corroborating the victim’s testimony to his advantage, pursuing a trial strategy of actual innocence instead of alerting the People to potential evidence that would have essentially proven his guilt of certain crimes, both charged and uncharged.

Facts of the case:

In People v. Hartle, the defendant, who had been convicted of multiple counts of rape and sexual abuse of a fifteen-year-old victim, asked the Court to vacate his conviction under CPL 440 on the grounds of ineffective assistance of counsel and the discovery of new evidence. The new evidence was in the form of incriminating text messages and explicit photographs exchanged with the victim that the defendant deleted before his arrest and never sought to retrieve before trial. The Court declined to deem the summary denial of his motion an abuse of discretion and affirmed the trial court’s decision.

The defendant was 50 years old at the time of the charges and was indicted with rape and other sex crimes after the victim accused him of repeatedly raping her over several months in 2014. When the defendant was arrested, the police secured his cell phone and kept the phone through the end of the trial. The police also performed a forensic examination of the victim’s cell phone and provided the results, including more than 1200 text messages, to the defendant. No exchanges with the defendant were recovered. Although the defendant and his counsel engaged in extensive pretrial litigation, they never sought to inspect either the victim’s cell phone or the defendant’s cell phone, never informed the People of any relevant evidence on either phone, never filed a motion to compel the production of cell phone evidence, and never issued a subpoena to defendant’s cell phone service provider.

The People and defendant’s counsel engaged in plea negotiations, and the People ultimately offered defendant a plea bargain pursuant to which he would receive a five-year sentence in exchange for a guilty plea to one count of first-degree sexual abuse. Defendant rejected this offer and proceeded to trial, where the defense theory was that no sexual contact occurred. The victim testified and defense counsel conducted a thorough cross-examination. Defense counsel made ample use of the evidence obtained from the victim’s cell phone during this examination, referring to text messages she exchanged with her brother and a close friend and using these messages to question the victim about why she did not inform anyone of defendant’s alleged conduct at the time the incidents occurred. Defense counsel did not ask the victim whether she and defendant exchanged any text messages or photographs or whether she had deleted any such communications. Defendant called no witnesses.

At the close of the People’s case, the trial court dismissed two counts of criminal sexual act in the first degree in response to defendant’s motion arguing that the People had failed to prove forcible compulsion. During summation, defense counsel argued that “there was no corroboration” for the victim’s allegations and that her testimony was “the story of an unsophisticated person trying to deceive.” The jury convicted the defendant on all remaining counts. The defendant was sentenced to 54 years of imprisonment to be followed by 10 years of post-release supervision, which was later reduced to 42 years and ten months to 50 years pursuant to statute.

Several years later, the defendant moved to vacate his conviction pursuant to CPL 440.10 on two grounds, alleging ineffective assistance of counsel and the discovery of new evidence. Defendant’s new evidence claim was based on the recovery of previously deleted text messages and photographs obtained through a forensic retrieval process called “rooting,” that he asserted was not available at the time of trial. The defendant submitted a letter from appellate counsel, affirmed by trial counsel, stating that at the time of trial, no photographs or messages between defendant and the victim were found on the victim’s phone.