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People v. Rocco Graziosa

Book's inconsistent description does not justify vacatur of verdict in assault on Yankee pitcher.

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Judge Stolz

PEOPLE v. ROCCO GRAZIOSA — The defendant has moved to vacate his conviction pursuant to CPL §440.10(l)(g) upon the ground of newly discovered evidence.1 After a jury trial, he was convicted of Assault in the Third Degree (PL §120.00). The complainant was New York Yankee pitcher David Wells. Subsequent to the trial, a book was published in which Mr. Wells relates certain details of the incident, which defendant claims are at variance with his trial testimony. Defendant argues that this variance rises to the level of newly discovered evidence within the meaning of the statute and that he is entitled to a new trial. The power to vacate a judgment pursuant to CPL article 440 upon the ground of newly discovered evidence, as well as the determination as to whether to hold a hearing on the motion, is within the discretion of the court to which the motion is addressed. People v. Baxley, 84 NY2d 208 (1994); People v. Robinson, 211 AD2d 733 (Second Dept., 1995). CPL §440.10(l)(g) provides that:

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