On 23 March 1975 at about two o’clock in the morning, a murder occurred. It was witnessed solely by a nonparticipant to the crime which led to the defendant’s arrest.
A New York Criminal Lawyer said the eyewitness had planned to arise at 2:00 A.M. of 23 March 1975 and set her alarm clock accordingly. Just before the alarm went off, she heard a noise that sounded like a fire cracker. She got up looked what it was. Thus, she turned off her alarm and walked to her front door. There, she then noticed that an automobile was parked right outside her house, on the north side of the street, facing west. Illumination was provided by a mercury vapor overhead streetlight. The car was parked under the light. The eyewitness viewed the killing from about 80 feet away.
The eyewitness saw the defendant fire a gun three times and run very quickly east on Park Avenue. A few minutes later, after she had dressed, she went out and saw the victim lying dead in the street. She notified the police immediately.
The eyewitness testified that she recognized the defendant (accused) from having seen him in the neighborhood on several occasions. She was at first reluctant to admit to the police that she had recognized him, for fear of reprisal, but finally did admit it and testified against the defendant at the trial.
Defendant was charged of the crime of murder (common law) in the second degree; in violation of the criminal law, a felony.
In the course of the police investigation, the defendant, in a signed statement dated 21 April 1975, admitted to the police that he was present at the scene during the murder. In his statement, however, he claimed one other individual was the killer. However, no such person was ever found.
On 22 December 1977, defendant was convicted of the crime charged.
When defendant appeared for sentence on 26 January 1978, he claimed that another individual, a fellow inmate at the Nassau County Jail, was the real murderer. Defendant said he knew his inmate committed the crime “when it first happened” but that the latter admitted his involvement only after defendant was found guilty.
Consequently, defendant moves to set aside the judgment on the ground of newly discovered evidence.
The issue: Is the alleged newly discovered evidence sufficient to grant a new trial and acquit defendant?
The criteria necessary for the granting of an application for a new trial on the basis of newly discovered evidence are as follows: (1) It must be such as will probably change the result if a new trial is granted; (2) It must have been discovered since the trial; (3) It must be such as could have not been discovered before the trial by the exercise of due diligence; (4) It must be material to the issue; (5) It must not be cumulative to the former issue; and, (6) It must not be merely impeaching or contradicting the former evidence.
A Long Island Criminal Lawyer said here, the testimony or confession of the inmate, his memory of the details of the killing incident and the geography of the scene, was something less than convincing and at great variance with the testimony given by the eyewitness and the statement of the defendant himself.
The inmate didn’t know the color of his victim’s car, although it was bathed in a bright illumination. Nor did he know if the victim sported a beard at the time. He claimed that after shooting at defendant once and at the deceased three times, two with telling effect, he left the scene by going west on Park Avenue to Brush Hollow Road, which is again at variance with the testimony of the others then concededly present.
Moreover, defendant testified in his own behalf at the hearing and said that he never knew that Johnson was the killer until the latter confessed. However, when asked to explain his statement on 26 January 1978 that he knew his inmate committed the murder “when it first happened”, defendant replied that the District Attorney was interpreting his statement incorrectly and reiterated that he never knew his inmate did the shooting until after the confession.
At this point, defendant had set himself upon the horns of a dilemma. On two occasions, first in a signed statement to the police on and second at the subject hearing where he had placed himself at the scene of the crime at the time of the crime.
The story concocted by the inmate and defendant transcends belief and even if the court were inclined to give credence to defendant’s testimony, the fact that his testimony, if believed, was available to defendant on the very night of the murder shows a definite lack of due diligence in bringing the issue to the attention of the police authorities.
Accordingly, defendant has not borne his burden; he is guilty of the crime charged.
The defense of a criminally accused person depends largely upon the ability of the legal representative; and not only on the actual facts of the case. The lawyer functions to protect the rights of the accused/defendant and see to it that justice is served. Thus, for best representation, contact Stephen Bilkis & Associates. Whether you have been charged with murder, sex crimes or theft, let in touch with our office and have a free consultation with our Nassau County Criminal Lawyers or our Nassau County Arrest Lawyers.