[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON STATE'S MOTION FOR SUMMARY JUDGMENT STATEMENT OF THE CASE The plaintiff was convicted of arson in the first degree but his conviction was reversed and a new trial ordered by the Supreme Court.

He was again convicted and the Supreme Court affirmed his conviction on November 25, 1997 in 243 Connecticut 282.

He has now filed a petition for a new trial on the grounds of newly discovered evidence.

The State has filed a motion for summary judgment with supporting affidavits, alleging that the petition must fail because the evidence referred to by the plaintiff was available at both of his prior trials and does not satisfy the basic requirement of newly discovered evidence to support a new trial.

The plaintiff's claim of newly discovered evidence involves the statement of one John Donroe and the field notes of Detective Paul Hemingway.

The affidavit of the plaintiff's trial counsel, William Cashman, attached to the motions makes it clear that the field notes were in his possession at the time of trial. Mr. Cashman also states that he was aware of the Donroe statement, having read the transcript of the first trial.

An examination of the plaintiff's response to the motion reveals no basis for a finding that this evidence was not available or unknown to the defense at trial.

When the court asked the plaintiff to explain his position on this issue, his response was that he had discovered it only after the trial, CT Page 16253 and thus satisfied the requirement set-forth in our case law. Shabazz v.State, 259 Conn. 811 (2002).

The proposition that such a discovery by a criminal defendant after the evidence was revealed and/or used at trial is patently absurd.

The motion is granted and the petition is dismissed.

___________________ Anthony V. DeMayo Judge Trial Referee CT Page 16254