Gibson v. State

246 A.D. 652

Opinion

Appeal from order of Court of Claims which reopened these cases and restored them to the calendar for the taking of further testimony on behalf of the defendant. The cases had been tried and the testimony closed but they had not yet been decided. The defendant moved to reopen on the grounds that certain witnesses whose whereabouts were unknown at the time of the trial had since been located and were available and also that another witness who was not produced at the trial because the defendant was unable to interview and subpoena him, had since the trial been located and interviewed and that he would, if called, testify materially in aid of the defense. The plaintiffs claim lack of due diligence on the part of the State to locate these witnesses and ascertain their knowledge of the facts and also that the State is guilty of laches in making its application. The order was discretionary. Order affirmed. Hill, P. J., Rhodes, McNamee and Bliss, JJ., concur; Crapser, J., dissents on the ground that the application made to reopen was in the nature of a motion for a new trial on the ground of newly-discovered evidence, and the affidavit on behalf of the State failed to show due diligence on the part of the State.