In New York one may file a motion to vacate a conviction even after an appeal was denied. A person convicted of a criminal offense after a trial who has exhausted his appeals may still file what is commonly referred to as a “440” motion back in the original court where he was convicted. Many times “440” motions are based upon newly discovered evidence.
Briefly, under CPL 440.10(1)(g), a court may vacate a conviction where new evidence has been discovered after trial, which could not have been produced by the defendant at the trial and such evidence creates a probability of an outcome more favorable to the defendant. Furthermore, the defendant must file his motion with due diligence after discovery of the new evidence.
Generally, however, such “new evidence” cannot be mere impeachment evidence. In other words, such newly discovered evidence cannot simply be evidence that could have impeached the credibility of a prosecution witness. However, this is not an absolute rule. A court can vacate a conviction where the “key” prosecution witness lies at trial about prior criminal activity or other bad acts committed by him prior to him testifying. In cases where courts have vacated convictions on such grounds, the witness who lied was the key or primary witness against the defendant and the case hinged on that witness’ credibility.
Where, the witness was the linchpin of the prosecution’s case, newly discovered evidence of the witnesses’ criminal background requires a new trial. People v. Ramos, 132 Misc. 2d 609, 505 N.Y.S.2d 511 (Sup 1985). For example, in People v. Maynard, 80 Misc. 2d 279 (1974), the Court granted defendant’s 440 motion, vacated his murder conviction and ordered a new trial based upon newly discovered evidence that the key witness lied about his mental illness and sexual perversions which involved “peeping Tom” activities. Likewise, the United States Supreme Court has held that newly discovered evidence which controverts a crucial prosecution witness’s trial testimony on a credibility issue may be sufficient to require a new trial. Napue v. People of State of Ill., 360 U.S. 264 (1959).
In People v. Jackson, 29 A.D.3d 328, 816 N.Y.S.2d 22 (1st Dept. 2006) the Third Department reversed the conviction holding: “Although the new evidence essentially constitutes impeachment material, it is of such extraordinary significance in undermining the complainant’s credibility that it creates a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.”
In United States v. Wallach, 935 F.2d 445 (2nd Cir. 1991) the defendant’s conviction was reversed because the key witness lied when asked if he had gambled. The witness responded in the negative but had in fact recently gambled in casinos; which, it should be noted is legal. In reversing, the Second Circuit held that although the witness’ perjury related to a collateral issue and his character, he was the centerpiece of the case and therefore reversal was warranted. The Court stated that reversal was required even if the state had not known of the perjury as it infected the trial proceedings and interfered with the jury’s ability to weigh testimony.
Federal cases have reached similar conclusion. In United States v. Seijo, 514 F.2d 1357 (2nd Cir. 1975) the defendant’s conviction was reversed and a new trial ordered because the key witness failed to reveal a marijuana possession arrest. In reversing, the Second Circuit held that when the reliability of a particular witness may be determinative of innocence or guilt, a new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury. Id.