People v. Goodell

Appellate Division of the Supreme Court of New York

People v. Goodell

221 A.D.2d 1009, 634 N.Y.S.2d 279, 1995 N.Y. App. Div. LEXIS 13520

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1995

StatusPublished

Cited by3 cases

This text of 221 A.D.2d 1009 (People v. Goodell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Goodell, 221 A.D.2d 1009, 634 N.Y.S.2d 279, 1995 N.Y. App. Div. LEXIS 13520 (N.Y. Ct. App. 1995).

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Opinion

—Order unanimously affirmed. Memorandum: County Court did not err in denying without a hearing that branch of defendant’s motion to set aside the verdict based upon defendant’s alleged newly-recovered memory of the incident. That branch of the motion was supported only by defendant’s sworn allegations, not by any medical evidence. The conclusory and unsupported allegations were insufficient to entitle defendant to a hearing (see, People v La Pella, 185 AD2d 861, 862, lv denied 81 NY2d 842). Moreover, defendant did not state in his affidavit that he planned to testify if he were granted a new trial (see, People v Williams, 35 AD2d 1023, 1024).

The court did not err in denying defendant’s motion to set aside the verdict based upon the testimony of a newly-discovered witness to the incident. Defendant did not carry his burden at the hearing of proving by a preponderance of the ev[1010]*1010idence that the verdict probably would have been more favorable to him had the testimony of that witness been presented at trial (see, CPL 440.10 [1] [g]; 440.30 [6]; see also, People v Rodriguez, 193 AD2d 363, 365-366, lv denied 81 NY2d 1079).

The motion to vacate the conviction was not based on the ground that defendant was denied effective assistance of trial counsel (see, CPL 440.30 [1]), and we decline to address that issue for the first time on appeal. (Appeal from Order of Genesee County Court, Morton, J.—CPL art 440.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.

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—Order unanimously affirmed. Memorandum: County Court did not err in denying without a hearing that branch of defendant’s motion to set aside the verdict based upon defendant’s alleged newly-recovered memory of the incident. That branch of the motion was supported only by defendant’s sworn allegations, not by any medical evidence. The conclusory and unsupported allegations were insufficient to entitle defendant to a hearing (see, People v La Pella, 185 AD2d 861, 862, lv denied 81 NY2d 842). Moreover, defendant did not state in his affidavit that he planned to testify if he were granted a new trial (see, People v Williams, 35 AD2d 1023, 1024).

The court did not err in denying defendant’s motion to set aside the verdict based upon the testimony of a newly-discovered witness to the incident. Defendant did not carry his burden at the hearing of proving by a preponderance of the ev[1010]*1010idence that the verdict probably would have been more favorable to him had the testimony of that witness been presented at trial (see, CPL 440.10 [1] [g]; 440.30 [6]; see also, People v Rodriguez, 193 AD2d 363, 365-366, lv denied 81 NY2d 1079).

The motion to vacate the conviction was not based on the ground that defendant was denied effective assistance of trial counsel (see, CPL 440.30 [1]), and we decline to address that issue for the first time on appeal. (Appeal from Order of Genesee County Court, Morton, J.—CPL art 440.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.

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Bluebook (online)

221 A.D.2d 1009, 634 N.Y.S.2d 279, 1995 N.Y. App. Div. LEXIS 13520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-goodell-nyappdiv-1995.

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