125 Misc. 300 | N.Y. Sup. Ct. | 1925
This is a motion under section 465, subdivision 7, of the Code of Criminal Procedure for a new trial upon the ground of newly-discovered evidence.
The defendant has been convicted of murder in the first degree, sentenced and his conviction affirmed by the Court of Appeals. (239 N. Y. 411.) This motion is addressed to the sound discretion of the court and may only be granted where it is made to appear by affidavit that upon another trial the defendant can produce evidence which if it had been adduced at the previous trial would have
The decision of this motion, by reason of its having been made after the conviction has been affirmed by the Court of Appeals, is not appealable by the defendant or the People. (People v. Trezza, 128 N. Y. 529; People v. Mayhew, 151 id. 607; People v. Beckwith, 42 Hun, 366; People v. Priori, 163 N. Y. 99.) This has made it imperatively necessary that the court meticulously discharge its duty.
I heard most of the evidence in this case while presiding at the second Pantano trial which involved the same episodes that the defendant is convicted of having been concerned with, in whole or in part. To supplement this, I have read the record on appeal on this trial. I have also read everything presented by the defendant as a basis for his application on this motion. I have examined the citations submitted by the defendant and the People. With this background, I will take up seriatim the grounds advanced by the defendant as reasons for the granting of a new trial.
The principles governing an application of this kind are stated in People v. Shilitano (218 N. Y. 161, 169; 215 id. 715). It is there decided that the mere fact of recantation by a witness called by the People does not necessarily entitle a defendant to a new trial. Such a recantation may only be made the basis for the granting of a new trial when the court is satisfied that the motives actuating the recantation are not subversive of the proper administration of justice. The best means of determining this is an oral examination to determine whether the testimony given at the trial was with or without any motive to falsify or whether the recanting statements were or were not prompted by corrupt or unworthy motives, or as part of a conspiracy to defeat the ends of justice. It is further recognized that while such recanting statements are popularly regarded as important, those experienced in the administration of criminal law know that such recanting testimony is ordinarily of an untrustworthy character and that no class of proof is so unreliable as recanting testimony. The court observes that it should be borne in mind that witnesses to crimes of violence “ are often of a low and degraded character and that after they have given their testimony they are sometimes influenced by bribery and other improper considerations.” The value which attaches to a recantation is determined by a comparison of the respective motives back of the original testimony and the recantation.
(1) With these considerations in mind, the first ground advanced
(2) This necessitates considering the next ground advanced, that the witness Young has made statements that indicate his testimony given at the trial was not to be relied upon. Young is the man who testified the defendant ran down the stairs and entered
(3) The claim of newly-discovered evidence in connection with the testimony of two other witnesses, Ida Berg and one Samuel Klein, not being by their own affidavits, but through a Drummond recital of alleged hearsay, makes it unavailable on this motion for the reason stated with respect to Young. Disregarding that, however, it appears that what is claimed with reference to them
So it appears that the material in the Drummond affidavits respecting Young, Berg and Klein is worthless as newly-discovered evidence on this motion, both as a matter of form and as a matter of substance. I have gone into the substance, however, in order that no injustice might result from adherence to and insistence upon proper forms of practice and procedure.
(4) There is but one affidavit submitted here that complies with proper practice. It is that of Angelo Farini. He is a brother of the defendant. It is claimed that he could have testified to what transpired at Williamsbridge in a manner that would have been exculpatory of the defendant. His testimony in that regard would be of no avail for the reason given in connection with Luciano’s testimony, growing out of what was made the law of the case, to wit, the requirement of a finding of fact by the jury that the man who ran down the Fifty-fifth street stairs is the defendant, and if he is not that there must be an acquittal. This made the Williamsbridge incident unimportant. An added reason, however, is that Angelo’s existence and knowledge was known to the defendant and to the defendant’s lawyer. The claim that he was not available to the defendant because he was kept in confinement in a place unknown, as a material witness does not lessen the effect of this fact. The defendant and his counsel knew how to get him if they wanted him. A single word to the presiding judge would have
I have laboriously gone over the vast amount of material submitted. It leaves me with this impression, that the moving papers herein, viewed from the ordinary standards applicable to alleged newly-discovered evidence, is a mass of typewritten trash. Not a single substantial item of evidence is advanced to warrant the court exercising its discretion in granting a new trial. The delay in making the application and the absence of the alleged recanting witness involves the application in an atmosphere of distrust and gives the abiding conviction that his absence and alleged recantation are due not to the promptings of consicence, as is claimed, but to corrupting influences and a conspiracy to attempt to defeat the ends of justice. The defendant was found guilty upon a trial where in substance and in fact everything urged upon this application was vigorously advanced on behalf of the defendant by competent counsel and the jury has resolved the questions of fact on evidence that amply supports their conclusion. To grant a new trial in the face of this would be to make under the forms of law a hollow mockery of the administration of justice. So far as it is humanly possible to determine, the defendant has been properly convicted. This conclusion, having been arrived at, with every desire to accord the defendant all that he might properly have given to him under the law, requires that this motion be denied. I so decide -without any misgivings. Submit order.