660 N.Y.S.2d 472 | N.Y. App. Div. | 1997
Appeal, by permission, from an order of the Supreme Court (Sheridan, J.), entered December 19, 1996 in Ulster County, which denied defendant’s motion pursuant to CPL 440.10 to vacate a judgment convicting him of the crimes of rape in the first degree, sexual abuse in the first degree, incest and endangering the welfare of a child (two counts), without a hearing.
In November 1994, an Ulster County trial jury convicted de
Subsequently, defendant’s family hired an investigator who interviewed witnesses and assembled affidavits (most from defendant’s business associates and members of his immediate family) and documentary evidence in yet another effort to establish that defendant’s brother, Ralph Grotto, took the photos at Linda Grotto’s residence on August 22, 1992. In addition, defendant produced telephone records and memoranda from his pest control business which, he argues, tend to show that he was on a service call and not at his sister’s home at the time of the alleged offense. This “newly discovered” evidence was then presented in support of a motion to vacate the judgment of conviction pursuant to CPL 440.10. Supreme Court denied the motion without a hearing. Defendant appeals by permission of a Justice of this Court and we once again affirm.
We agree with Supreme Court’s conclusions that the submissions supporting defendant’s CPL 440.10 motion did not constitute newly discovered evidence and that the substantive issues raised on the motion had already been raised and decided against defendant in connection with his CPL 330.30 motion and his unsuccessful direct appeal. First, on defendant’s motion to vacate the judgment pursuant to. CPL 440.10 (1) (g) it was his burden to show, among other things, that the proffered
In addition, as before, the contention is patently meritless. It is clear from the respective records on this and the prior appeal that defendant, perceiving the damage caused by the inculpatory photographic evidence, mounted a belated effort to undo the harm by in essence “rewriting the script” so as to portray his brother as the individual who took the photos at Linda Grotto’s residence. Making little effort to disguise his scheme, defendant repeatedly advises that, had the defense witnesses been “properly prepared”, they would not have testified that defendant took the photos; rather, had they been so “prepared”, they would instead have testified that it was Ralph Grotto who took them. We are similarly unimpressed with the “new” evidence to support the theory that defendant was on a service call and not at his sister’s home on the morning of the wedding. Although supportive of a theory that someone made a call that morning, the proffered showing by no means establishes defendant’s alibi.
Defendant’s remaining contentions have been considered and found unavailing.
Cardona, P. J., White, Casey and Carpinello, JJ., concur. Ordered that the order is affirmed.