eBook details
- Title: People State New York v. Roger Stokes
- Author : Supreme Court of New York
- Release Date : January 28, 1981
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
Description
Appeal by defendant from a judgment of the Supreme Court, Kings County (Lodato, J.), rendered March 2, 1979, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of defendants motion to set aside the verdict and for a new trial on the ground of newly discovered evidence. Case remitted to Criminal Term to hear and report on defendants motion to set aside the verdict and for a new trial in accordance with the memorandum herein. The appeal from the judgment will be held in abeyance in the interim. Criminal Term shall file its report with all convenient speed. Defendant was convicted of robbery in the first degree. The evidence presented at the trial indicates that defendants conviction was based solely on the testimony of the complainant, John Bernieri. Bernieri testified that on March 4, 1978, at about 9:40 p.m., while he was walking on McDonald Avenue, between Ditmas Avenue and Avenue F in Brooklyn, he was robbed by three men, two of whom took his cassette tape player and some cash. Bernieri, who had never seen any of the robbers before, identified defendant as one of the perpetrators of the robbery, which occurred in about a minute. Twenty days after the incident, Bernieri returned to the location of the robbery and observed defendant and one of the other perpetrators. Bernieri called the police and defendant was subsequently arrested. At the trial, defendant did not testify nor did he present any evidence. Approximately two months after defendants conviction, his trial counsel moved, pursuant to CPL 330.30 (subd 3), to set aside the verdict and for a new trial on the ground of newly discovered evidence. In support of the motion, counsel annexed a sworn statement by Tracy Stokes, defendants nephew, dated February 2, 1979. Tracy deposed that on March 4, 1978, at about 9:30 p.m., on McDonald Avenue between Ditmas Avenue and Avenue F in Brooklyn, he had observed a young white man being robbed by three men. He had recognized one of the robbers, who he had seen previously, and was certain that none of the robbers was his uncle, the defendant. He further deposed that he had not come forth with this information earlier because he was afraid that the man he recognized, or that mans friends, "would get [him]." In his own affirmations, defense counsel averred that he had spoken with Tracy both before and during the trial. While Tracy had told him that defendant was innocent, Tracy refused to indicate the reason for his belief, despite diligent efforts by counsel to get a response from Tracy. It was not until after the trial that Tracy first told counsel how he knew that the defendant had not committed the crime. Counsel asserted that Tracy Stokes affidavit constituted newly discovered evidence which (1) could not have been discovered at the trial even with due diligence and (2) created a probability [83 A.D.2d 968 Page 969]