Opinion · Appellate Division of the Supreme Court of the State of New York

People v. Drake

People v. Drake, 256 A.D.2d 1159 (Appellate Division of the Supreme Court of the State of New York 1998)

Type
Opinion
Court
Appellate Division of the Supreme Court of the State of New York
Jurisdiction
New York
Date
1998-12-31
Topic
litigation

How later courts describe this case

  • concluding that even though newly discovered evidence established that the expert lied about his credentials, there is no reasonable probability that the verdict would have been different had the evidence been available to the defendant and used to impeach the expert
  • finding “no reasonable probability that the verdict would have been different had the evidence [of perjury] been available to defendant and used by him to impeach the expert”

Citator

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Cited by
4 opinions

—Order unanimously *1160 affirmed. Memorandum: County Court properly denied the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of two counts of murder in the second degree. In support of the motion, defendant presented evidence that the People’s expert witness at trial gave false testimony regarding his credentials. While that evidence “might have affected the jury’s assessment of his credibility, there is nothing in the record indicating that the prosecution was aware, or should be charged with knowledge that he was misrepresenting his credentials” (People v Irvin, 180 AD2d 753, 754, lv denied 79 NY2d 1002). Thus, vacatur is not warranted under CPL 440.10 (1) (c). Further, there is no reasonable probability that the verdict would have been different had the evidence been available to defendant and used by him to impeach the expert (see, People v Vasquez, 214 AD2d 93, 101-102, lv denied 88 NY2d 943).

We have reviewed defendant’s remaining contentions, including those raised in the pro se supplemental brief, and conclude that they are without merit. (Appeal from Order of Niagara County Court, Fricano, J. — CPL art 440.) Present — Denman, P. J., Green, Hayes, Balio and Boehm, JJ.