        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

130
KA 14-01899
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RODNEY MCFARLAND, DEFENDANT-APPELLANT.


CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN 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 Supreme Court, Monroe County (Thomas E. Moran, J.), dated August
29, 2014. The order denied the motion of defendant to vacate the
judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion pursuant to CPL 440.10 (1)
(g) is granted, the judgment of conviction is vacated, and the matter
is remitted to Supreme Court, Monroe County, for further proceedings
on the indictment.

     Memorandum: On a prior appeal, we remitted the matter to Supreme
Court to conduct a hearing on defendant’s motion pursuant to CPL
440.10 (1) (g) seeking vacatur of the judgment “on the ground that new
evidence has been discovered since the entry of the 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). Defendant alleged that a statement of a third
party that it was he, and not defendant, who shot and killed the
victim, constitutes a statement against penal interest and that, if
the statement had been admitted in evidence at trial, the verdict
would have been more favorable to defendant. We remitted the matter
for a hearing to determine whether the third party was unavailable to
testify “and, if so, whether there is ‘competent evidence independent
of the declaration to assure its trustworthiness and reliability’ ”
(id. at 1123). Following the hearing, the court denied the motion.
That was error. We therefore reverse the order.

     The third party appeared at the hearing and exercised his Fifth
Amendment right to remain silent. Thus, the court properly determined
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                                                         KA 14-01899

that he is unavailable to testify. Defendant called to the stand to
testify the person to whom the third party allegedly made the
admission. That witness testified that the third party told him in
2003 at the Monroe County Jail that it was he who shot the victim and
that he implicated defendant because “he did what he had to do” to
avoid “serious jail time.” The witness’s testimony varied from the
factual averments set forth in an affidavit he sent to defendant’s
counsel in 2007. The witness averred in his affidavit that the third
party told him that he and defendant went to the victim’s house where
he had a confrontation with the victim because the victim owed him
money. During the hearing, however, he testified that the third party
said that the victim owed defendant money and that, after the victim
punched defendant, the third party shot the victim. An eyewitness
testified at the trial that “in her quick glance out of a window” she
saw defendant engaged in a struggle on the porch with the victim
(id.). She further testified, however, that while defendant, the
victim, and the third party were inside the residence, the third party
and the victim were engaged in a loud dispute and that defendant was
not part of that dispute. We note that our prior decision erroneously
states that other witnesses “testified” that they heard the victim
pleading with the third party by name before they heard gunshots
(id.). That information was provided in defendant’s CPL 440.10 motion
through statements of those eyewitnesses to the police, but there was
no testimony to that effect at defendant’s trial. In any event, an
investigator hired by defendant’s attorney testified during the 440.10
hearing that the third party admitted to her that he was at the scene
and that he had a dispute with the victim. He also told the
investigator, however, that defendant was not present and that the
victim was shot by a person who ran onto the porch and pushed the
third party away from the victim. Also admitted in evidence at the
440.10 hearing were letters written by defendant’s wife to the third
party and letters ostensibly written by the third party to defendant’s
former attorney.

     Following the hearing, the court determined that the testimony of
the witness who testified that the third party made the incriminating
statement to him was “incredible as a matter of law.” The court also
determined that the letters ostensibly written by the third party were
“lacking in evidentiary foundation, and thus, authentically unreliable
and untrustworthy,” explaining that it had compared the signatures on
those letters with the third party’s signature on his statement to
police implicating defendant in the crime. The court therefore
concluded that the third party’s statement would not be admissible at
trial as a declaration against penal interest.

     As a preliminary matter, it is well settled that a “less
stringent standard [of admissibility] applies, where, as here, the
declaration is offered by defendant to exonerate himself rather than
by the People, to inculpate him” (People v Backus, 129 AD3d 1621,
1624, lv denied 27 NY3d 991; see McFarland, 108 AD3d at 1122).
Furthermore, the statements attributed to the third party “all but
rule[] out a motive [for the third party] to falsify” the statement
that it was he, and not defendant, who shot the victim (Backus, 129
AD3d at 1624). Thus, in determining whether there is evidence
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                                                         KA 14-01899

constituting “sufficient supportive evidence of a declaration against
penal interest[,] . . . [t]he crucial inquiry focuses on the intrinsic
trustworthiness of the statement as confirmed by competent evidence
independent of the declaration itself . . . Supportive evidence is
sufficient if it establishes a reasonable possibility that the
statement might be true. Whether [the hearing] court believes the
statement to be true is irrelevant . . . If the proponent of the
statement is able to establish this possibility of trustworthiness, it
is the function of the jury alone to determine whether the declaration
is sufficient to create reasonable doubt of guilt” (People v Settles,
46 NY2d 154, 169-170 [emphasis added]).

     We conclude that defendant provided sufficient competent evidence
at the 440.10 hearing to establish the “possibility of
trustworthiness” of the third party’s statement to satisfy the
requirement that the statement was a declaration against penal
interest. In addition to the trial testimony that the third party was
engaged in a dispute with the victim, the third party admitted to the
defense investigator that he was present and engaged in a dispute with
the victim and that he wrote the letters to defendant’s former
attorney. Thus, we conclude that the third party is unavailable and
that his alleged statement is “supported by independent proof
indicating that it is trustworthy and reliable” and thus that it is a
statement against penal interest (People v Ennis, 11 NY3d 403, 412-
413, cert denied 556 US 1240; see People v Brensic, 70 NY2d 9, 15).
Furthermore, the statement is “clearly exculpatory of the defendant”
(People v Deacon, 96 AD3d 965, 968, appeal dismissed 20 NY3d 1046).
We therefore conclude that defendant met his burden of establishing,
by a preponderance of the evidence (see CPL 440.30 [6]), that the
third party’s statement against penal interest was not available at
the time of defendant’s trial and “is of such a 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” (CPL 440.10
[1] [g]; see People v Bailey, 144 AD3d 1562, 1564).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
