People v. Friedgood

Gibbons, J., dissents

and votes to reverse the order and remit the matter to the County Court for a hearing on the motion, with the following memorandum, in which Hopkins, J. P., concurs: Inasmuch as issues of fact have been presented on this motion which should have been determined upon evidence adduced at a hearing, the matter should be remitted to the County Court for such an evidentiary hearing by the Trial Judge and for a determination of the following issues: (1) The alleged jury misconduct (see People v Durling, 303 NY 382 ; CPL 330.30, subd 2; and CPL 330.40, subd 2, par [a]); (2) The alleged prosecutorial intimidation of a prospective defense witness (see People v Session, 34 NY2d 254 ; CPL 440.10, subd 1, pars [f¡, [h]; CPL 440.30); and (3) The alleged existence of newly discovered evidence relating to a claimed contradiction between the forensic rebuttal testimony given at the trial by a medical expert on behalf of the prosecution and his subsequently published opinion on the subject. The court should also determine the concomitant question as to whether, in fact, it cannot reasonably be said that such matter “is of such a nature and quality as would probably change the result of a new trial if granted” (see People v Salemi, 309 NY 208,226 ; CPL 440.10, subd 1, par [g]).