SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

545 

KA 15-01934 

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

KEVIN J. DAVIS, II, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal, by permission of a Justice of the Appellate Division of

the Supreme Court in the Fourth Judicial Department, from an order of

the Erie County Court (Michael F. Pietruszka, J.), dated October 16,

2015. The order denied the motion of defendant to vacate a judgment

of conviction. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law, and the matter is remitted to Erie

County Court for a hearing pursuant to CPL 440.30 (5). 

Memorandum: We granted defendant leave to appeal from the order

denying his CPL article 440 motion to vacate the judgment convicting

him following a jury trial of murder in the second degree (Penal Law 

§ 125.25 [2]). Defendant contends that he is entitled to vacatur of

the judgment based on newly discovered evidence (CPL 440.10 [1] [g])

and ineffective assistance of trial counsel (CPL 440.10 [1] [h]). We

agree with defendant that County Court erred in denying his motion

without conducting a hearing.

CPL 440.10 (1) (g) “permits vacatur of a judgment of conviction

on the ground that new evidence has been discovered since the entry of

a judgment, which could not have been produced at trial with due

diligence ‘and which is of such character as to create a probability

that had such evidence been received at the trial the verdict would

have been more favorable to the defendant’ ” (People v McFarland, 108

AD3d 1121, 1121, lv denied 24 NY3d 1220, quoting CPL 440.10 [1] [g];

see generally People v Salemi, 309 NY 208, 215). 

Here, as in McFarland, information was received following

defendant’s conviction that a third party had allegedly confessed to

the murder, and there are questions of fact whether the statements of

that third party would have been admissible at trial as declarations
-2- 545 

KA 15-01934 

against penal interest (see id. at 1122; see generally People v

Brensic, 70 NY2d 9, 15; People v Settles, 46 NY2d 154, 167). 

Moreover, as we wrote in McFarland, “where, as here, the declarations

exculpate the defendant, they are subject to a more lenient standard,

and will be found sufficient if [the supportive evidence]

establish[es] a reasonable possibility that the statement might be

true . . . That is because [d]epriving a defendant of the opportunity

to offer into evidence [at trial] another person’s admission to the

crime with which he or she has been charged, even though that

admission may . . . be offered [only] as a hearsay statement, may deny

a defendant his or her fundamental right to present a defense” (id. at

1122 [internal quotation marks omitted]). We thus conclude that the

court should have conducted a hearing to determine, first, whether

there is “competent evidence independent of the declaration to assure

its trustworthiness and reliability” (Brensic, 70 NY2d at 15) and,

second, whether the witness who heard the third party’s declaration is

both available to testify and credible in his or her testimony (see

People v Becoats, 117 AD3d 1465, 1467). 

We further conclude that defendant is entitled to a hearing on

his claims that defense counsel was ineffective for failing to

investigate potentially exculpatory information. Before trial, a

witness informed police that two identified individuals had told the

witness that the third party had committed the murder. “A defendant’s

right to effective assistance of counsel includes defense counsel’s

reasonable investigation and preparation of defense witnesses . . .

Consequently, the failure to investigate witnesses may amount to

ineffective assistance of counsel” (People v Jenkins, 84 AD3d 1403,

1408-1409, lv denied 19 NY3d 1026; see People v Mosley, 56 AD3d 1140,

1140-1141). Although we agree with the People that the statements of

the witness constitute inadmissible hearsay, it is not apparent from

the record and the parties’ submissions whether defendant’s trial

counsel investigated that exculpatory evidence and, if not, whether he

had strategic or tactical reasons for not doing so. We thus conclude

that the court “erred in denying the motion without first conducting

an evidentiary hearing” (Jenkins, 84 AD3d at 1409).

Entered: April 28, 2017 Frances E. Cafarell

Clerk of the Court