People v. Turner

DECISION AND ORDER This matter is before the Court on the motion of Defendant Timothy Turner (hereinafter, “Defendant” or “Turner”) brought pursuant to CPL §440:10(1)(g), §440.10(1)(h) and §440.30 in which he asserts that newly discovered evidence establishes that he is entitled to a new trial in this matter, or in the alternative, establishes his actual innocence of the crimes of which he was convicted. On November 2, 2022, the Court granted defendant an evidentiary hearing on his motion, and reserved decision on all other aspects of the motion. (People v. Turner, 77 Misc.3d 446 (Rich Cnt’y 2022)). An evidentiary hearing was held on December 8, 2022 and December 14, 2022, with the parties submitting their closing arguments in writing on or before January 20, 2023. For the reasons explained herein, the Court finds that, in the particular circumstances presented in this case, Turner is entitled to a new trial based on newly discovered evidence pursuant to Criminal Procedure Law §440.10(1)(g) and §440.30 and the case law construing it. The Court’s authority to grant an order for a new trial on the ground of newly discovered evidence is purely statutory. Such power may be exercised only when the requirements of the statute have been satisfied, the determination of which rests within the sound discretion of the court. (People v. Salemi, 309 N.Y. 208, 215 (1955), cert. den. 348 US 845 1956)). This discretion at times has been described as “unlimited.” (People v. Baxley, 84 N.Y.2d 208, 212 (1994)). Background This case involves the armed robbery and assault of Richie Hernandez (hereinafter “Hernandez”), the owner of a barber shop, Richie’s Barber Shop. The indictment charged Turner, who was present at the barber shop, ostensibly to get a haircut from Hernandez, an acquaintance of his. It also charged Jermaine Moore (hereinafter “Moore”), who came into the store brandishing a gun to rob Hernandez. The People’s theory of the case was that Turner acted in concert with Moore, making the last appointment of the day for a haircut and arranging to go out with Hernandez after the haircut, so that Moore would have the opportunity to rob Hernandez of the valuable jewelry he regularly wore. Turner’s position at trial was that he was not involved in the robbery but was only a bystander who acted at the direction of co-defendant Moore because he was armed. Essentially, the debate between the People and the defense in this case and the ultimate issue for resolution is whether Turner was an accomplice acting in concert with Moore, or whether he acted under duress when faced with Moore who was brandishing a firearm. This Court presided over Turner’s trial and sentencing. Moore was not apprehended and remained a fugitive at the time of Turner’s trial. Turner was convicted on June 19, 2019 upon a jury verdict finding him guilty of Count One, Robbery in the First Degree (robbery with display of a firearm); Counts Five and Seven, Robbery in the Second Degree; and Count Six, Assault in the Second Degree. The jury acquitted Turner of Count Four, Robbery in First Degree, causing serious bodily injury; Count Eight, Robbery in the Second Degree; Count 9, Assault in the Third Degree; and Count Ten, Criminal Possession of a Weapon in the Fourth Degree. This Court sentenced Turner to a twelve-year prison term on the Robbery in the First Degree conviction and to an eight-year prison term on the Robbery in the Second Degree convictions, concurrently, to be followed by a five-year period of supervision. Moore was apprehended after defendant’s sentencing and ultimately pled guilty in a negotiated plea bargain before Judge Marina C. Mundy, J.S.C., to one count of Robbery on February 26, 2020. At his plea colloquy, the People did not require Moore to provide any statements regarding Turner’s involvement or regarding how or why Moore decided to commit the crime. On January 22, 2021, Moore was sentenced to a seven-year prison term to be followed by a five-year period of supervision. Defendant’s Motion The Defendant’s motion is predicated on an affidavit made by Moore dated April 30, 2022. (the “Moore affidavit”). (Defendant’s Exhibit D on the Motion). The Moore affidavit is five paragraphs in length, and states in pertinent part that: Moore acted alone; Moore does not know Turner; Moore ordered the Defendant to help him push Hernandez into the bathroom during the robbery; anything Turner did regarding the robbery he did at Moore’s direction; Turner had nothing to do with the robbery and should not have been his co-defendant; and Moore would be willing to testify to these statements. The May 23, 2022 affirmation of defense counsel submitted in support of the motion states that Moore had completed an earlier affidavit, which Moore appears to have executed before a notary public on July 22, 2021, about ten months before the motion was filed, and about seven months after his sentencing.¹ (Defendant’s Exhibit C on the Motion). Defense Counsel states in the motion papers that the later affidavit was completed due to potential chain of custody issues. The Trial Evidence Resolution of this motion requires the Court to determine the cumulative effect that Moore’s testimony would have had on the trial, considering all of the trial evidence and testimony. Therefore, both the trial evidence that is relevant to this motion and the hearing evidence are considered below. (See People v. Cain, 96 A.D. 3d 1072, 1073-1074 (2d Dept. 2012) and People v. Malik, 81 A.D.3d 981, 982 (2d Dept. 2011)). The testimony of Hernandez, the complainant, who described Moore’s and Turner’s actions, was key evidence at trial. The People also admitted video recordings of the robbery from two security cameras in the barber shop, each with a different view, and each without any audio recording. Some of Hernandez’s testimony explained or expanded on the videotape evidence, in a sense narrating the events observed by the jury on the video evidence. Anthony Filion, who was present in the barber shop with Turner and Hernandez before the robbery occurred, and Jimmy Yee, who installed the security cameras, and several other witnesses, also testified at trial. The People did not present evidence at trial that Moore and Turner knew each other or were connected in any way prior to the day of the robbery. The Court finds that Hernandez’s testimony and the video at trial included some significant circumstantial evidence that supported the People’s case against Turner. While the evidence presented at trial was minimally adequate to support a guilty verdict, the Court — having presided over the trial and observed the witnesses testify — does not find that the People’s evidence was overwhelming. Indeed, the jury acquitted Turner on some counts. From the evidence presented, the jury’s conclusion would depend on what inferences the jury drew from Hernandez’s testimony that supported the accomplice theory; what inferences the jury drew from the video evidence; and whether this evidence convinced the jury beyond a reasonable doubt of Turner’s guilt. The circumstantial evidence supporting the People’s theory of the case relied heavily on Hernandez’s testimony, only some of which was corroborated by other evidence. Hernandez testified that Turner made an appointment with Hernandez and specifically asked for the last haircut appointment of the day, which was at 7:30 p.m. Defendant and Hernandez also arranged to go out socially after the haircut. It would have been the first time the two went out together socially. Turner had gone to Hernandez to have his haircut several times prior to this occasion and the two were acquainted on social media. Hernandez testified that Turner arrived late for his haircut. Hernandez testified that, at between about 7:30 p.m. and 8:00 p.m., Turner called him and asked him if he was alone. Hernandez testified that that a friend, Anthony Filion, was at the shop for his weekly standing appointment but he told Turner he was alone. Phone records admitted by the People showed calls placed from Richie’s Barber Shop to Turner’s phone but did not show any calls originating from Turner to Richie’s Barber Shop. The calls from Richie’s Barber Shop to Turner included calls at 12:57 p.m., and 7:20 p.m. on the day of the robbery. The People also presented evidence at trial that cell phone records would not record communications made using “WiFi,” such as calls or texts made with various internet “apps,” which would indicate that calls of other types still could have occurred. The Court finds that these phone records show communication between the parties at relevant times and in this way provide some corroboration of that portion of Hernandez’s testimony that indicates that the two spoke on the day of the robbery. Significantly, they do not corroborate Hernandez’s testimony that Turner reached out to Hernandez, nor do they speak to the substance of any conversations between the Hernandez and Turner. Instead, the jury would have to consider whether to credit Hernandez’s testimony on these points. Similarly, Hernandez and Filion testified that Turner seemed nervous; Filion testified that Turner was sweating. Turner is seen on video going to the bathroom more than once before Moore enters, a fact that these witnesses also found to be odd. Filion testified that Turner explained this by stating that he was taking water pills as part of his “work out” regime. Turner is a large, well-built individual. After Filion, Hernandez and Defendant had been talking together and while Defendant was still in the barber chair, Filion left the barber shop to go to a liquor store to buy liquor for the bar at the shop. Defendant can be seen on the video interacting with Filion and watching him leave the premises. Defendant’s face was turned looking toward the doorway as Filion exited the barber shop. Defendant then immediately began typing on his cell phone. Hernandez testified that he noticed the I-message “app” open on the phone, and that the screen was cracked on Defendant’s phone. He told Defendant he could fix the cracked screen and went to take the phone from him. Hernandez testified Defendant locked the screen before Hernandez looked at the phone. The phone screen is not seen clearly on video, which also does not show whether Turner locked the screen. In short, Hernandez’s testimony regarding these key points is uncorroborated. Within about three minutes of Defendant typing on his phone, Moore entered the store holding a handgun. The video recording showed that Turner at first crouched on the floor when faced with Moore. The video shows that Moore put his hand on Hernandez’s gold chain and appeared to pull on it. Hernandez resisted and the two scuffled with Moore pushing Hernandez further into the shop. Hernandez testified that, during this struggle, Moore told Turner to help him push Hernandez into the bathroom. Turner got off the floor and is seen on video helping Moore to push the complainant toward the bathroom. The defense does not deny that Moore told Turner to do this, and that Turner complied. Hernandez testified that once he and Moore were inside the bathroom, Turner closed the bathroom door. Hernandez testified that Moore did not give any further instructions to Defendant. The bathroom door is not in view in the video evidence. Hernandez testified that, while in the bathroom, Moore was hitting him in the head with the gun and demanding that he give him the jewelry and cash. Turner is then seen on video walking back into the main area of the shop, pausing and then closing the curtains on the large shop windows, which were located on each side of the entry door. To do so, Defendant had to walk to each side of the shop. On one side, he had to move behind a couch and reach to do this. Defendant then picked up his coat and left the shop. Hernandez testified that Moore gave no further instructions to Turner, raising the inference that Turner closed the curtains on his own, then left the shop. If this testimony was accepted, it may present very significant evidence supporting a finding that Turner acted in concert with Moore. Moore and Hernandez struggled further in the main area of the shop, outside of the bathroom, and in view of the video camera, then Moore left the shop. Hernandez is seen bleeding from the head; the trial evidence was that he received 22 staples to his head. Hernandez left the shop soon thereafter and went out to his car to drive himself to the hospital. He did not call the police and neither did the Defendant. Hernandez testified on direct examination that, once outside the barber shop, he saw that Turner had not left the scene but was sitting in his own (Turner’s) car. Hernandez approached Turner. He was angry and accused Turner of setting him up. Hernandez also testified that, when he confronted Turner, Turner exited his car and stood in what Hernandez described as a fighting stance. Hernandez said to Turner “you see I am hurt, you want to fight me like this” or words to that effect. The two argued in front of the barber shop. On cross examination, Hernandez testified that he told Turner words to the effect, “as big as you are I am fighting him and [you] didn’t do nothing to help me but you helped him.” Hernandez also acknowledged that he told police after the robbery that when he accused Turner of setting him up for the robbery, Turner responded with words to the effect, “Seriously, he had a gun.” As Filion was returning from the liquor store he saw them arguing outside the shop. Filion testified that Turner left before Filion reached the shop. Hernandez then drove himself to the hospital, where he received 22 staples for injuries to his head. Evidence regarding the phone records admitted at trial indicate that Hernandez placed calls to Turner around the time of the robbery, one was an attempted uncompleted call (it lasted for “zero seconds”) at 8:32 and one was at 8:40 pm. The trial witness from T-Mobile indicated that this later call went to voicemail as his phone was off. Not long after, on April 10, 2018, Turner’s phone contract was terminated; no reason was given for this at trial. Hernandez testified about moving his business into the Olympia Boulevard shop from another location. Hernandez testified that the Olympia Boulevard shop opened in April 2018. He further described the opening date as “about” two weeks before the robbery. He also testified that the evening of the robbery was the second time Turner had come to the shop for a haircut, and that Turner got a haircut about every two or three weeks. Yee explained that he did the renovations to the shop and that he installed the video cameras. Yee testified that he installed the video cameras “about” two weeks before the robbery. Defendant did not testify at trial or present evidence, as was his constitutional right. The defense argued essentially that Turner was a bystander, who had merely been there for a haircut, who did as he was ordered to do during an armed robbery under duress. The Motion and the Evidentiary Hearing At the hearing on the motion, Moore testified unequivocally that he should not have “had a co-defendant” and that he found out for the first time at his arraignment that he had a co-defendant. He testified that he asked his attorney why he had a co-defendant because he did not “do this case with nobody,” so “why do I even have one of these.” (December 8, 2022 Hearing Transcript 10-24 to 11-15). He testified unequivocally that he did not know Turner, had never met or spoken to him prior to the robbery at Richie’s Barber Shop. He stated that he did not have telephone conversations with him and did not communicate with him by text. He also stated that he had an android phone at the time of the robbery that could not receive “I-messages.” No corroboration was provided regarding the cell phone he used at the time. Moore testified that his family came into contact with Turner’s family when a member or members of the Turner family came to one of Moore’s court appearances on the case; he believes it was his sentencing hearing. He testified that his family and Turner’s family “got to talking” when they were together at the hearing. Moore testified that he decided to prepare an affidavit in prison to the effect that Turner had no role in the robbery. He sent it to someone in his family, who in turn provided it to someone in Turner’s family. As the People point out, despite testifying that the families had this contact, Moore states that he decided to prepare the affidavit on his own. No one from Moore’s or Turner’s family testified at the hearing to corroborate these claims or provide further detail. Moore also testified that he was contacted by and then visited by Turner’s defense attorney who had been given Moore’s affidavit. He acknowledged signing the affidavit that Turner’s defense attorney had provided to him. Moore testified that he did not live on Staten Island and did not have a car. At the time of the robbery, he resided with his wife and children at a Brooklyn shelter. In explaining how he decided to commit the robbery, he testified that during a visit to a friend on Staten Island in March 2018, he first had contact with Hernandez and Richie’s Barber Shop. He testified that his birthday was April 18th, and he wanted to get a haircut “around that time.” He stated that he visited the friend in March and specifically on “March 17″ to “be exact.” He stated that his friend used the GPS on her phone, and they visited two barbershops in an attempt to get a haircut for Moore. One was Richie’s barbershop; Moore testified Hernandez gave Moore his business card and told him he needed to make an appointment. Moore noticed that he wore a lot of jewelry but did not think of robbing him at that time. Moore testified that prior to the April 6, 2018 robbery, he “happened to be back” in Staten Island visiting a friend, and at that time “got an idea” to commit the robbery. He explained that it was a bad time and he needed money and remembered the jewelry Hernandez wore. He stated that he drove a friend’s car to commit the robbery. The video of the robbery was played in part at the hearing, with Moore answering questions about it, essentially providing a counter-narrative to Hernandez’s testimony at trial. The Court summarizes this portion of Moore’s testimony as follows: Moore ordered Turner to help him push Hernandez into what Moore at first thought was a closet but was actually the bathroom. Turner did not close the door to the bathroom, which remained open. Moore ordered Turner to take the necklace from Hernandez, but he refused. Hernandez eventually took the necklace and watch off himself. Moore also testified that he had both Hernandez and Turner “covered” with the gun, and that the only time Turner could get away was when he told Turner to go close the curtains to the shop. On cross-examination, Moore indicated that he had noticed the large front windows of the shop when he entered and thought immediately that he “was going to have a problem” with the windows. Moore testified that at one point he saw one curtain closed, and when he looked toward the front of the store again, Turner was gone. Moore did not tell Turner he could leave; Turner did so on his own. Moore thinks that, at about that point, Hernandez realized that Moore only had a “fake” gun and lunged for Moore and began fighting with him to get the jewelry back. At the hearing, the People provided the testimony of a Department of Corrections witness, Investigator David Martinez, a sixteen-year veteran of the New York State Department of Corrections and Community Supervision. He testified that Turner and Moore were each brought into a Downstate Correctional Facility on January 24, 2013 regarding unrelated offenses. For about ten days, Turner and Moore were together in a unit called 3 Complex H Block while they were being processed into the facility. This unit has a capacity to house 36 inmates. Inmates in this unit are housed in individual cells. They are moved as a group through all necessary processing steps, including medical, dental, lab work, as well as to meals, and recreation time. Moore remained on the 3 Complex H Block with Turner until February 5, 2013. Moore and Turner also spent an overlapping period of time of about one week in the 3 Complex Dorm, from February 7, 2013 to February 14, 2013. The Dorm Unit has only half walls between beds, so that persons housed there were visible to others on the unit when they stood up. Inmates were free to walk around the unit and interact. Residents of the unit would have moved as a group to all of the activities mentioned above. This unit housed only as many as 22 men. Findings and Analysis As noted, the Court presided over the trial, sentencing and the CPL §440 evidentiary hearing in this matter. In considering this case, the Court has undertaken an exacting review of the testimony and evidence from both the trial and the hearing and given this matter very close consideration. The Court makes the following credibility and other findings regarding the trial and hearing testimony and evidence. The case against Turner as an accomplice rested to a very large degree on the testimony of Hernandez, who testified regarding Turner’s actions before he came to the barber shop and during the robbery. Regarding the Court’s observation of the trial testimony of Hernandez, the Court notes that it did not find this witness’s testimony to be implausible, as much of it was corroborated by video. While the Court did not find anything in particular about the witness’s demeanor that would render his testimony incredible, it also notes that Hernandez had formed a strong conclusion that Turner had “set him up” for the robbery, immediately after the robbery. The Court finds that it is possible that Hernandez’s soured view of Turner, whom he had thought of as an acquaintance he was going to begin socializing with, may have impacted Hernandez’s testimony or his recollections regarding the important details of the case, such as for example, whether Moore directed Turner to close the curtains. As Hernandez acknowledged at trial, he accused Turner immediately after the robbery by, among other things, stating to Turner that Turner helped Moore but did not help or defend him. While the jury appears to have accepted Hernandez’s testimony, at least in part, the Court is left with the impression that, if Moore’s diametrically opposed testimony was also given to a jury, it would be very likely to result in a more favorable result for Turner. Hernandez’s conclusion that Turner “set him up” is one of his own making. His bias, interest, and ability to recollect precise details during the robbery and assault are particularly significant because many of the circumstances Hernandez testified to and that the People rely on as tending to show that Turner acted in concert with Moore are uncorroborated or depend wholly or to a significant degree, on Hernandez’s testimony, to wit: That Turner made calls to Hernandez, asking for the last appointment of the day, and asking if Hernandez was alone; That Turner used an I-Message app while in the barber chair, which would support the conclusion that he signaled Moore to come to the shop; That Turner took the step of locking his phone screen before giving the phone to Hernandez, which would support the conclusion that Turner did not want Hernandez to see his screen because he had been in touch with Moore; That Turner shut the bathroom door after helping Moore push Hernandez into the bathroom, to further the robbery; and That Moore did not instruct Turner to close the curtains, raising the inference that Turner was willingly assisting Moore. Other than through cross-examination and the arguments of counsel, this testimony was uncontroverted at trial. The Court finds that, without this testimony, the video evidence does not necessarily provide strong evidence supporting the State’s theory as to Turner. Similarly, the Court does not find that Moore’s testimony was incredible or implausible. Moore’s testimony remained consistent throughout his cross examination. The Court also notes that Moore is an interested witness of a particular type, since he is a co-defendant who testified after his sentence became final, when, as the Second Circuit observed, he had “nothing to lose.” (See United States v. Owen, 500 F. 3d 83, 90 (2 Cir. 2007), cert den. 552 U.S. 1237 (2008) (post-sentencing statements made by co-defendants have been characterized as made by those who have “nothing to lose”)). The Court does not ignore the possibility that that Moore may have a specific reason to help Turner known only to him; however, there is no specific information to consider regarding this. Further, the Court is cognizant that Moore is the perpetrator of this violent crime and has a prior criminal record. For all of these reasons, the Court applies a realistic skepticism in considering statements of co-defendants. All of these circumstances are strikes against his credibility, and the Court considered them in deciding this motion and in evaluating the effect this witness’s testimony may have if presented at trial. However, having presided over the trial and hearing, the Court finds Moore’s testimony to be as plausible, or nearly as plausible, as Hernandez’s, despite the circumstances that a jury could find that negatively impact his credibility. The parties raise several specific arguments regarding the trial and hearing testimony, and the testimony as a whole raises several issues for the Court that must be resolved on this motion. These are discussed in detail below. There is the issue of the when the shop opened and when Moore visited there. Moore testified that he learned about Richie’s Barber Shop when a friend brought him there for a haircut on March 17, 2018 “to be exact.” He stated that he spoke to Hernandez at that time. When asked about being at the shop at a time when the People asserted that the shop had not yet been opened, Moore did not indicate that he may have been there on another date, but he stated several times that that was “new” to him because he went to the shop on that date. In contrast, at trial, there was testimony from Hernandez that Hernandez moved his business to the Olympia Boulevard shop about two weeks before the robbery. This would put the opening at about March 23rd, about a week after Moore stated he had attempted to get a haircut at the shop and saw the jewelry. The Court notes that Hernandez’s testimony on this point at trial seemed somewhat of an approximation or an estimate, with no firm date given. Hernandez also testified that he cut Turner’s hair approximately every two to three weeks, giving him about four haircuts in total, including one haircut prior to the date of the robbery at the Olympia Blvd. shop. This too seems to place the opening two to three weeks before the robbery. Yee testified that he installed the camera system in the shop “probably in March” and also stated it was “about” two weeks before the robbery. The Court recognizes that the trial testimony was made at a time when the precise date the shop opened was not an issue, and the parties as well as the two witnesses could not have known what Moore later would claim regarding the robbery as he was still at large, so there would appear to be no motive to fabricate it and no reason to doubt it.2 However, given the less than exact nature of Hernandez’s and Yee’s trial testimony on this point, and given that the time difference is a matter of about a week roughly, the Court finds that this distinction is not material and does not seriously impact the Court’s calculus regarding the motion or its view of Moore’s testimony. The issue of I-messaging was raised by the defense at the hearing, through Moore’s testimony that at the time of the robbery he had an Android phone, which did not receive messages through the “I-message App.” Hernandez testified he saw the “I-Message App” open on Turner’s phone, before Moore entered the shop, and the robbery commenced. The Court finds that these details regarding the particular “App” that was open on the phone present credibility issues, as neither witness’s claim is corroborated, and with Moore again providing the potential counter-narrative to Hernandez, had his testimony been available at trial. Turner typed on his phone right after Filion left and minutes before Moore entered the shop, raising an inference — though not a very strong one in the Court’s view if taken in isolation, given the public’s near constant use of cell phones — that Turner worked in concert with Moore and texted him when Filion left. Another contested issue is whether Turner closed the bathroom door, and whether he closed the curtains on his own or on Moore’s order, and the defense would argue, under duress. Hernandez and Moore both testified that Moore ordered Turner to push him into the bathroom. Hernandez testified that Turner closed the bathroom door, leaving him with Moore. Moore testified that the door was not closed and that he continued watching Turner. He also testified that Turner refused to take the necklace off of Hernandez’s neck; and that he ordered Turner to close the curtains. The bathroom door is not seen on the surveillance videotape, so we again are left with two opposing views: Hernandez’s testimony is evidence that supports the conclusion that Turner was an accomplice of Moore; Moore’s testimony supports the conclusion that Turner acted under duress during an armed robbery, and was not an accomplice. Moore also testified that he did not rob Turner or attempt to take any cash from him. The People assert that this statement shows that Moore’s testimony was incredible, since it seems unlikely that someone who was desperate for money would not also attempt to get cash from the subject or subjects of the robbery, rather than take only the jewelry. Moore testified that he was after the jewelry, and that he took cash from Hernandez because Hernandez offered the cash to him, he thinks, perhaps in an attempt to have him not take the jewelry. The Court is skeptical of the People’s assertion regarding Moore’s alleged failure to ask for cash, and its impact on his credibility — Moore may have simply been focused on the valuable items he came for, without looking to further prolong his interaction with the victim. Turner left the barber shop but stayed on the scene and did not call the police. The Court finds this equivocal and potentially exculpatory. It is plausible and a jury may have found that Turner left the barber shop due to instinct, panic, or for his own safety, if a jury considered this circumstance to be material to their conclusions. Turner exited his vehicle when Hernandez approached him. Hernandez immediately accused him of setting him up. Hernandez also acknowledged on cross examination that he told police that when he accused Turner or setting him up, Turner replied in substance, seriously he had a gun. Buttressed by Moore’s testimony, a jury may be willing to take Turner’s denial at face value. Finally, the Court considers the import of the People’s evidence at the evidentiary hearing that Moore and Turner were incarcerated in the same Block and the same semi-open Dorm Unit previously described, both relatively small units, for a period totaling roughly three weeks, about five years before the robbery. While it is conceivable that the two could have met and made a connection at that time, the Court finds that this inference is a rather weak one given the short duration and passage of time. At a jury trial, a court would have to determine whether the probative value of this evidence justified its admission, given its capacity for undue prejudice. In any event, even if this testimony were admitted at trial, the Court finds that it is unlikely to have an impact on the jury, given its speculative nature. Conclusions Based on careful consideration of all of the evidence in this case, including but not limited to the hearing and the trial testimony the Court personally observed, the Court hereby grants Turner’s motion for a new trial based on newly discovered evidence. In essence, because Moore’s testimony is the only testimony by a non-party to the trial which could provide a counter narrative to the complainant’s testimony regarding the import of the video evidence, a new trial is warranted. In reaching this conclusion, the Court recognizes that the government has an interest in the finality of a conviction once it has accorded an accused all of the constitutional rights required by law. (See People v. Machado, 90 N.Y.2d 187, 192 (1997); People v. Seaberg, 74 N.Y.2d I, 10 (1989)). After a conviction has been constitutionally obtained, there is a presumption that the convicted person is in fact guilty. (People v. Ekinici, 191 Misc. 2d 510, 518 (2002)). Society, of course, has no interest in the conviction or punishment of an innocent person. Indeed, it was Blackstone himself who posited that “the law holds that it is better that 10 guilty persons escape, than that one innocent suffer.” (Coffin v. United States, 156 U.S. 432, 456, 15 S. Ct. 394, 403, 39 L. Ed. 481 (1895)(quoting 2 BLACKSTONE comm. c. 27 marg. p. 358, ad finem)). “It is abhorrent to our sense of justice and fair play to countenance the possibility that someone innocent of a crime may be incarcerated or otherwise punished for a crime which he or she did not commit.” (People v. Tankleff, 49 A.D.3d 160, 177 (2d Dept. 1977)). Consistent with these principles, after conviction, a defendant may move for a new trial or to vacate a conviction only if certain grounds are established. On these motions, defendant bears the burden of proving by a preponderance of the evidence every fact essential to support the motion. (People v. Cain, supra, 96 A.D.3d at 1073; People v. Hamilton, 115 A.D.3d 12, 18 (2d Dept. 2014)). The authority to an order for a new trial on the ground of newly discovered evidence is purely statutory and may be exercised only when the requirements of that statute have been satisfied to the determination of the trial court. (People v. Salemi, 309 N.Y. 208 (1955)). The Court has significant discretion to determine if they have in fact been met. (See People v. Baxley, 84 N.Y. 2d 208, 212 (1994)). To vacate a judgment of conviction based on newly discovered evidence, a defendant is required to demonstrate that the newly discovered evidence: (1) be such as will probably change the result if a new trial is granted; (2) have been discovered since the trial; (3) be such as could have not been discovered before the trial by the exercise of due diligence; (4) be material to the issue; (5) not be cumulative to the former issue; and (6) not be merely impeaching or contradicting the former evidence. (People v. Spencer, 208 A.D.3d 1370, 1371-72, (2d Dept. 2022); People v. Hargrove, 162 A.D. 3d 25, 55 (2d Dept. 2018) (internal quotation marks omitted)). The first three criteria are based on the express requirements of CPL 440.10(1)(g), while the latter three criteria “have been derived exclusively from case law,” and “should be used to evaluate the ultimate issue of whether the new evidence would create a probability of a more favorable verdict.” (Hargrove, supra, 162 A.D.3d at 55). The Court notes that some appellate cases have reached differing conclusions regarding whether an affidavit exculpating a co-defendant can constitute newly discovered evidence. The Court finds that the cases more analogous to this situation have held that the affidavit of a co-defendant, who had previously exercised his 5th Amendment right may constitute newly discovered evidence. (See People v. Beach, 186 A.D. 2d 935 (3d Dept. 1992) (an affidavit of a codefendant who previously took the 5th amendment can constitute newly discovered evidence, such that a §440.10 hearing may be warranted); see also People v. Staton, 224 A.D.2d 984, 984, (4th Dept. 1996)). In Beach, defendants were both convicted at a joint trial at which neither testified after a significant quantity of illegal drugs were found in a vehicle passenger compartment, vehicle trunk, and in a jacket in the vehicle. Defendant was driving the vehicle and co-defendant Lennon had leased the vehicle. (Beach, supra, 186 A.D. 2d at 935). The trial court found that the affidavit of Lennon exculpating defendant did not constitute newly discovered evidence within the purview of CPL 440.10(1)(g) because “defendant could have presented the same evidence at trial through his own testimony.” (Beach, supra, 186 A.D. 2d at 936). The Appellate Division, Third Department, reversed the trial court’s conclusion that the motion could be denied without a hearing. The Third Department concluded that such affidavits may be considered newly discovered evidence, such that a hearing should have been held. (Ibid). Relatedly, evidence may be considered newly discovered, even where the facts to be adduced are known to the defendant at the time of trial, and where the witness himself is not “newly discovered” but where the witness only made detailed statements exculpating the defendant after trial. (People v. Stokes, 83 A.D.2d 968, 969 (2d Dept. 1981)). In Stokes, defendant’s nephew had told defense counsel repeatedly that defendant was not guilty, but fearing retribution by the actual perpetrators, would not explain the basis of his belief to the attorney. After trial, the nephew did tell the defense counsel that he saw the robbery take place from a nearby vantage point; that he recognized one of the perpetrators; and that he knew that none of the perpetrators was his uncle. The Second Department rejected the proposition that the evidence was not newly discovered since defendant and his nephew were available and each could have testified at trial as to defendant’s innocence. Instead, the Court found that a hearing should have been held because the nephew’s post-trial statements were newly discovered evidence, as they were not available despite efforts of counsel to have the nephew explain to him why he alleged defendant was innocent. (Ibid). Here it appears that Turner had no way to know of Moore’s whereabouts or willingness to exculpate him at the time of trial as Moore was a fugitive. The facts set out in the Moore affidavit — that Moore and Turner were not accomplices in the commission of the robbery — were known to Turner at the time of trial. However, what was not known was that Moore would be apprehended and would be willing to testify on Turner’s behalf and exculpate him. As in Stokes, the new post-trial statements and the new post-trial availability of this evidence meet the standard for newly discovered evidence. While Turner could have testified at trial, if he made the determination to waive his 5th amendment right, he had no way to know that Moore would “surface,” plead guilty and provide testimony. Since Moore was the only other person with direct knowledge who could testify as to the events of the night and provide a counter-narrative to Hernandez’s testimony, his testimony would be highly significant at trial, even if defendant also took the stand and denied setting up Hernandez and participating in the robbery. Further to this point, if law enforcement, with its extensive resources, was unable to locate and apprehend Moore, how could such be expected of Turner to do so, with his limited resources? While there is some case law to the effect that statements by a co-defendant or another “new” witness that relate facts that would have been known to the defendant at the time of trial are not newly discovered evidence, the Court finds that these cases are distinguishable from the facts presented here, where the co-defendant, Moore, was a fugitive at the time of trial, and the complainant was the only witness at trial who gave direct evidence regarding the crime, a significant portion of which is uncorroborated. One example of such a case, People v. Cain, 96 A.D.3d 1072, is distinguishable. In that case, at the federal plea hearing, the witness stated he shot the victim on defendant’s order that he do so. At the motion hearing, he testified differently, potentially in an effort to mitigate or exculpate defendant, and stated that defendant gave him the gun but that he did not form the intent to kill the victim until he and the victim argued. The Court found that defendant did not claim that the testimony was not known to him, or that defendant himself could not have testified or presented evidence regarding the substance of the testimony. (People v. Cain, supra, 96 A.D.3d at 1074). Thus, it concluded that the statements were not new evidence. However, the instant case is distinguishable since Moore was a fugitive and there is nothing to show that Turner knew what Moore would have testified to or his willingness to testify. Indeed, the substance of Moore’s testimony is that the two never met. Further, the evidentiary impact and import of Moore stating this, rather than Turner, is completely different. This case also is distinguishable from People v. Taylor, 246 A.D.2d 410, 410 (1st Dept. 1998), where the Court found that the post-trial affidavit of robbery co-defendant who was tried jointly with defendant to the effect that he did not know defendant was not “new evidence” since both would have known this at time of trial. In that case, both defendants were arrested as well as tried together, and as such, the witness was not a fugitive at the time of trial and could have decided to testify at trial. Here, Moore was a fugitive, and at his guilty plea hearing, he was not asked and did not address whether he acted alone or with an accomplice. Thus, the Court finds that, under the circumstances of this case, the Moore affidavits and testimony qualify as newly discovered evidence and meet prongs two and three of the six-prong test. Accordingly, the Court finds that the Moore affidavits and testimony are “newly discovered” under the statute in the circumstances presented in this case, meeting the second and third prongs of the test as described in People v. Hargrove, supra, 162 A.D. 3d at 55. As such, the affidavits support the decision to hold a hearing in this case and also, together with Moore’s testimony at the hearing, support this decision. The Court also finds that this evidence is of a type that would probably lead to a verdict more favorable to defendant, another requirement of the statute. (See People v. Tankleff, 49 A.D. 3d 160, 181 (2d Dept. 2007)). While it is true that ultimately it is “impossible” to know what effect the new evidence will have on the jury’s determination, such uncertainty should not preclude the remedy of a new trial. (See generally People v. Rensing, 14 N.Y.2d 210 (1964)). In considering the impact of evidence unavailable at trial, a Court must make its final decision based on the likely cumulative effect of the new evidence had it been presented at trial. (People v. Tankleff, 49 A.D.3d at 181). In determining the probable effect of the newly discovered evidence on the verdict, a court must engage in a critical analysis of the evidence and view and evaluate all of the evidence in its entirety. (People v. Malik, 81 A.D.3d at 982. In order to fully appreciate the likely effect of [the] new evidence at the trial, it…must be considered in the context of the relative strength of the People’s evidence of guilt.” (People v. Hargrove, supra, 162 A.D.3d at 66). First, as detailed within this opinion, the Court does not view the People’s case as overwhelming. Therefore, being provided with an alternative explanation from the only other person who could provide direct evidence about the robbery would very likely have a significant impact on the jury. While a jury would still be free to credit Hernandez’s testimony, the Court finds that a jury may well find Moore’s testimony to be more satisfying as he provided explanations as to how he learned of Hernandez’s shop and the jewelry he wore and decided to commit the robbery. Further, even if not more satisfactory to a jury, the Court finds that there is a reasonable probability that the Moore testimony would raise a reasonable doubt as to Turner’s involvement with Moore. In light of the People’s burden to prove Turner’s guilt beyond a reasonable doubt, the Court’s view is that the likely cumulative effect of Moore’s testimony at trial would be a verdict more favorable to Turner. Notably, the People did not present any evidence at trial that linked Turner and Moore.³ Turner’s presence at the shop for a haircut was not in itself suspicious of anything. The parties agree that Turner was at the shop with an appointment for a haircut as a return customer, and acquaintance of the complainant. The parties agree that Moore ordered Turner to help push him into the bathroom. His testimony would be highly material, not cumulative, and not merely contradicting or impeaching. (People v. Spencer, 208 A.D.3d at 1371-72). As described herein, the circumstantial evidence is far from conclusive in this case and depends to a significant degree on Hernandez’s testimony. The Court also does not view the People’s evidence as overwhelming in part because the jury acquitted defendant of some of the charges. It is not possible to definitively know the jury’s reasons for an acquittal on a particular charge, which may simply reflect an exercise in lenity. However, that the jury did not convict defendant of all charges also signals to the Court that that it is likely that the jury either did not accept all of the People’s arguments or did not find that the People proved all of the charges beyond a reasonable doubt. The Court considers this circumstance too as consistent with its conclusion that Moore’s testimony would probably result in a more favorable verdict had it been admitted at trial. It finds that the defendant raised this issue with due diligence as required by the statute. CPLR §440.10. In reaching this conclusion, the Court notes that, having presided over this trial, it finds that the prosecution conducted itself fairly and professionally ably in this matter, in keeping with its duty in the criminal justice system. The Court expressly rejects any contentions in the Defendant’s papers that the People acted in any way less than above board during the proceedings in this matter. The People argue in the alternative that regardless of whether Turner and Moore knew each other and arranged the robbery together, Turner still could be convicted as an accomplice since he assisted Moore in completing the crimes and acted with the mental culpability required for the commission of the crime, citing to People v. Rosado, 224 A.D. 2d 772, 774 (3d Dept. 1997), among other cases. Therefore, the People argue, Moore’s testimony would not change the verdict. However, this argument overlooks the fact that, if Turner acted only because Moore was armed and he was threatened, he did not act with the mental culpability required for the commission of the offense. This argument also fails because duress is an affirmative defense. NY Penal Law §40.00. The Court finds that defendant has not established his actual innocence such that he is entitled to have the charges against him dismissed as a matter of law. While Moore’s testimony asserts Turner’s actual innocence, other evidence, namely Hernandez’s testimony and the videotape evidence support his guilt of the charges. To prevail under CPL §440.10(1)(h), a defendant must demonstrate by clear and convincing evidence, which evidence was not presented at trial, his factual innocence, i.e., that he was actually innocent of the crimes for which he was convicted. (See People v. Hamilton, supra, 115 A.D. 3d at 23). “Actual innocence,” as grounds for vacatur of judgment of conviction, means factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence that was not presented at trial. Further, “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty.” (People v. Hamilton, supra, 115 A.D. at 27). Defendant has not met this high burden. In summary, the People’s most significant evidence was Hernandez’s testimony and the videotape. While Hernandez provides testimony that gives an inculpatory explanation to each aspect of the videotape. Moore’s testimony exculpates Turner and explains that he acted only upon the orders of an armed robber. Moore’s testimony also provides an alternative theory on why Hernandez was targeted for a robbery — Moore explained how he came to Richie’s Barber Shop on a prior occasion. Other than Turner himself, only two people, Hernandez and Moore, could provide direct evidence regarding the robbery, and in essence “narrate” the silent video evidence of the crime. Their explanations of Turner’s actions as seen on the video are diametrically opposed regarding whether Turner was a willing accomplice or a bystander who acted under duress. The jury only heard from one of the two at trial, i.e., Hernandez. To paraphrase People v. Hargrove, 162 A.D. 3d at 29, the Court is not saying whether Turner is guilty — there simply is no way to know this absolutely at this juncture. “That is precisely why a new trial is needed.” (Ibid). The Court having concluded that the statutory requirements for a new trial have been met in this case, the Court hereby exercises its discretion (People v. Tankleff, 49 A.D. 3d, supra, at 178, citing People v. Salemi, supra, 309 N.Y. at 215), to vacate the convictions and order a new trial. It is So Ordered. Dated: March 30, 2023