State of New York                                                      OPINION
Court of Appeals                                        This opinion is uncorrected and subject to revision
                                                          before publication in the New York Reports.




 No. 17
 The People &c.,
         Respondent,
      v.
 Mark A. Hartle,
         Appellant.




 John A. Cirando, for appellant.
 Matthew L. Peabody, for respondent.




 GARCIA, J.:

       Defendant, convicted by a jury of multiple counts of rape and sexual abuse of a

 fifteen-year-old victim and sentenced to 54 years in prison, asks this Court to deem the

 summary denial of his motion to vacate his conviction an abuse of discretion. Because the

 evidence proffered by defendant as “newly discovered” consists of incriminating text
                                           -1-
                                           -2-                                       No. 17

messages and explicit photographs exchanged with the victim that defendant deleted before

his arrest and never sought to retrieve before trial, we decline to do so and affirm the

summary denial of defendant’s CPL 440 motion.

       Defendant, 50 years old at the time, was charged in a 31-count indictment with rape

and other sex crimes after the 15-year-old daughter of defendant’s close friend accused him

of raping her repeatedly over several months in 2014. When defendant was arrested, the

police secured his cell phone and kept the phone through the end of trial. The police also

performed a forensic examination of the victim’s cell phone and provided the results,

including more than 1200 text messages, to defendant. No exchanges with defendant were

recovered. Although defendant and his counsel engaged in extensive pretrial litigation,

they never sought to inspect either the victim’s cell phone or defendant’s cell phone, never

informed the People of any relevant evidence on either phone, never filed a motion to

compel the production of cell phone evidence, and never issued a subpoena to defendant’s

cell phone service provider.

       The People and defendant’s counsel engaged in plea negotiations, and the People

ultimately offered defendant a plea bargain pursuant to which he would receive a five-year

sentence in exchange for a guilty plea to one count of first-degree sexual abuse. Defendant

rejected this offer and proceeded to trial, where the defense theory was that no sexual

contact occurred. The victim testified and defense counsel conducted a thorough cross-

examination. Defense counsel made ample use of the evidence obtained from the victim’s

cell phone during this examination, referring to text messages she exchanged with her

brother and a close friend and using these messages to question the victim about why she

                                           -2-
                                             -3-                                       No. 17

did not inform anyone of defendant’s alleged conduct at the time the incidents occurred.

Defense counsel did not ask the victim whether she and defendant exchanged any text

messages or photographs or whether she had deleted any such communications.

Defendant called no witnesses.

       At the close of the People’s case, the trial court dismissed two counts of criminal

sexual act in the first degree in response to defendant’s motion arguing that the People had

failed to prove forcible compulsion. During summation, defense counsel argued that “there

was no corroboration” for the victim’s allegations and that her testimony was “the story of

an unsophisticated person trying to deceive.”        The jury convicted defendant on all

remaining counts. Defendant was sentenced to 54 years of imprisonment to be followed

by 10 years of post-release supervision, which was later reduced to 42 years and ten months

to 50 years pursuant to statute. Defendant appealed, and the Appellate Division affirmed

his conviction (People v Hartle, 

 [3d Dept 2018]). A Judge of this Court

denied leave to appeal (

 [2018]).

       Several years later, defendant moved to vacate his conviction pursuant to CPL

440.10 on two grounds, alleging ineffective assistance of counsel and the discovery of new

evidence. Defendant’s new evidence claim was based on the recovery of previously

deleted text messages and photographs obtained through a forensic retrieval process, called

“rooting,” that he asserted was not available at the time of trial. Defendant submitted a

letter from appellate counsel, affirmed by trial counsel, stating that at the time of trial, no

photographs or messages between defendant and the victim were found on the victim’s

phone, and so trial counsel’s “belief was that if any photographs or messages [had] been

                                             -3-
                                           -4-                                       No. 17

on the cellphone they had to have been deleted” and that “neither [attorney] knew of any

type of technology that would be able to retrieve such deleted information.” Defendant

also submitted affidavits and reports from a specialist in “the forensic examination of

digital services,” describing his unsuccessful attempts in 2017 to perform the rooting

procedure of defendant’s cell phone to recover the deleted evidence and his ultimate

successful completion of the rooting procedure following an update to the software in 2018.

Defendant included an affidavit from his mother describing conversations she had with

Verizon, defendant’s cell phone service provider, attempting to obtain the deleted

messages.

       During a conference before County Court regarding defendant’s motion, after the

People asked defendant for additional materials in advance of their responsive papers,

defense counsel suggested that he was entitled to examine the victim’s phone. County

Court echoed counsel’s interest in understanding the scope of evidence on the victim’s

phone and suggested that the People contact the victim to ask her about the recovered

messages and why they did not appear on her phone. The People declined to do so, later

explaining that they bear no burden on a CPL 440 motion and “it’s not our practice on a

440 collateral attack to contact a child victim and cross-examine them.”1



1
  The dissent’s assertion that defendant was entitled to a hearing merely because “the
victim’s cell phone was never produced for forensic examination by the defense” is
incorrect (dissenting op at 9 n 4). Before trial, defendant was provided with a copy of the
entire contents of defendant’s phone. Defendant never requested to inspect the phone
before trial. Defendant’s filing of a CPL 440 motion did not entitle him to access the
victim’s phone years after his conviction. The dissent’s suggestion that it does is indeed a
“burden of production contrary to the statutory language” (dissenting op at 2).
                                           -4-
                                             -5-                                       No. 17

       County Court subsequently denied defendant’s motion without a hearing (People v

Hartle, 

, 

 [County Ct, St Lawrence County

2019]). The court rejected defendant’s claim of newly discovered evidence, explaining

that the letter “affirmed by trial counsel is conclusory in nature and fails to demonstrate

due diligence on trial counsel’s part to confirm that retrieval of the deleted media was truly

not possible at the time of trial in 2015,” that the expert affidavit and report “are similarly

flawed, as they fail to address efforts made at retrieval during the time of trial,” and that

“there is no indication that trial counsel made effort[s] to obtain the material from

defendant’s cell phone service provider” (id. at *3). Moreover, County Court rejected the

“portrayal of the recovered photographs and text messages as newly discovered evidence”

because defendant “knew that the media existed prior to trial,” “he actively endeavored to

delete the evidence from his cell phone,” and “was part and parcel to the exchange, and, as

such, he knew full well of the communications and the factual information contained

therein” (id.). County Court faulted defendant for seeking to use material “initially lost as

a result of defendant’s spoliation of evidence . . . to his benefit” and held that, “[h]aving

been found guilty after trial, defendant should not now be permitted to rely upon material

he previously deleted in an effort to cover up his criminal conduct” (id. at *4).

       The Appellate Division affirmed, explaining that “[t]o hold otherwise would create

the rule that a defendant can destroy evidence he or she deemed inculpatory and then

subsequently benefit from advances in technology to resurrect that evidence if it later

appears beneficial” (

 [3d Dept 2021]). A Judge of this Court granted

leave to appeal, and we now affirm (

 [2021]).

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                                            -6-                                       No. 17

       CPL 440.10 (1) (g) empowers a trial court to vacate a conviction on the basis of

newly discovered evidence “which could not have been produced by the defendant at the

trial even with due diligence on his part 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; provided that a motion based upon such ground must be

made with due diligence after the discovery of such alleged new evidence.” The burden is

on the defendant on a CPL 440 motion; as we have explained previously, “the statute is

plain that the initial failure by a defendant to carry his or her burden of coming forward

with sworn allegations substantiating the essential facts in the 440 motion does not shift

the burden to the People in their responsive pleadings” (People v Wright, 

 [2016]). We review a trial court’s summary denial of such a motion for abuse of

discretion (see People v Jones, 

 [2014]). County Court did not abuse its

discretion in denying defendant’s motion without a hearing.

       As County Court determined, the evidence proffered is far from newly discovered—

it is evidence the defendant knew about, was involved in the creation of, and believed he

destroyed well before trial in an effort to conceal criminal activity. As defendant affirmed,

he “deleted the photographs and/or text messages because [he] did not want anyone to see

them.” This is unsurprising given that the material, including nude photographs he took of

the victim, was compelling evidence of his sexual contact with a minor. Defendant cannot

now claim that because certain “technology” was not available to recover the incriminating

texts and photographs that he attempted to destroy, that material, now recovered, somehow

qualifies as “newly discovered evidence.”

                                            -6-
                                             -7-                                       No. 17

       Nor has defendant met CPL 440.10 (g)’s due diligence prong, which requires that

defendant show that the evidence could not have been produced at the trial even with due

diligence on the part of defendant. Nowhere in defendant’s conclusory submissions is there

any showing that the evidence was inaccessible before trial, or any indication that

defendant tried to obtain it. Defendant received the State Police report of the evidence

extracted from the victim’s cell phone well before trial, at which point defendant was aware

that the messages were not recovered from her device. Defendant took no action in

response; for example, he did not seek to obtain the materials from his cell phone service

provider or a forensic examination of his phone or the victim’s phone. Rather, he used the

absence of evidence corroborating the victim’s testimony to his advantage, pursuing a trial

strategy of actual innocence instead of alerting the People to potential evidence that would

have essentially proven his guilt of certain crimes, both charged and uncharged.

       The assertions in defendant’s papers—from his attorneys, who state they did not

believe the text messages were recoverable; from his mother, who claims she tried to call

Verizon and ask for the deleted messages; and from defendant himself, who now represents

that it was “everyone’s belief that such deleted material could not be recovered”—are all

inadequate, conclusory, and self-serving. Because the statute’s focus is on “the evidence’s

availability at the time of trial” (dissenting op at 7 [emphasis in original]), it is incumbent

upon defendant to show an effort to obtain that evidence before trial. The existence of

rooting technology that enabled the recovery of deleted messages on defendant’s phone in

2018 is not evidence that no method existed to recover these messages in 2015. Nor has

defendant made any representation as to the ability, at that time, of defendant’s cell phone

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                                            -8-                                      No. 17

service provider to retrieve messages that had been so recently deleted. Defendant’s

affidavit states that “[t]he photographs and text messages demonstrate that [the victim] did

not testify truthfully”—an argument his counsel advanced at trial. With the knowledge

that he had, defendant could, of course, have cross-examined the victim at trial regarding

whether she had exchanged text messages or photographs with defendant—he simply

chose not to. Failure of his trial strategy does not permit defendant to resurrect his

communications with the victim as newly discovered evidence.

       This is not hypothetical case A (dissenting op at 5,7 [defendant convicted of murder

where decedent left a suicide note later hidden by a third party]) or B (id. [defendant sees

the suicide note but could not find it after he was charged with decedent’s murder]). There

are no “novel questions” here, nor are we concerned with the “outer limits of a proposed

legal rule” (dissenting op at 3, 5 n 2). Rather, we apply our established approach to

collateral attacks on a verdict brought pursuant to CPL 440 to a record demonstrating that

before his arrest for sexually assaulting the 15-year-old victim, defendant deleted

incriminating evidence of sexual contact with her and never sought to retrieve that deleted

information before trial. As a result, he failed to meet his burden under CPL 440 and the

trial court did not abuse its discretion in denying the motion without a hearing.

       We have considered defendant’s claim of ineffective assistance of counsel and hold

that it is meritless (see Wright, 

). County Court did not abuse its discretion

in denying defendant’s motion pursuant to CPL 440.10 (h) without a hearing.

       Accordingly, the order of the Appellate Division should be affirmed.



                                            -8-
RIVERA, J. (dissenting):

       Defendant Mark Hartle moved pursuant to CPL 440.10 (1) (g) for a postconviction

hearing to consider whether he was entitled to a new trial based on newly discovered

evidence consisting of previously deleted text messages and photographs that he alleged

were recoverable only with the use of technology developed after judgment. Defendant

relied, in part, on a digital forensic expert’s report which explained that, after an initial

                                            -1-
                                           -2-                                       No. 17

postjudgment attempt to recover the material failed, the expert eventually succeeded in

recovering the material only after the software that he used was updated. That report, along

with the other documents proffered with defendant’s motion, entitled defendant to a

hearing on whether the evidence was newly discovered and, if so, whether he acted with

due diligence in moving for relief and established a probability that admission of the

evidence would have resulted in a more favorable verdict.

       The majority creates a due diligence discovery standard and burden of production

contrary to the statutory language in order to deprive defendant of this opportunity, which

undermines the purpose of CPL 440.10 (1) (g) and the truth-seeking function of our legal

system. Therefore, I dissent.



                                             I.

       After his conviction of several counts of rape, criminal sexual act, and sexual abuse

involving a minor, defendant moved, pursuant to CPL 440.10 (1) (g) and (h), for a

postconviction hearing based on newly discovered evidence and ineffective assistance of

counsel. Although I agree with the majority that County Court properly denied defendant’s

motion to vacate the judgment on the latter ground, the court should have granted a hearing

on defendant’s claim of newly discovered evidence that he alleged showed the victim’s

consent and negated the forcible compulsion element of several of the counts. The

Appellate Division affirmed the denial of the motion without a hearing, agreeing with

County Court that the evidence proffered was not newly discovered because defendant

knew it existed before trial (see 

 [3d Dept 2021]). The Court

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                                           -3-                                       No. 17

reasoned that holding otherwise would permit a defendant to destroy inculpatory evidence

and use technological advances to “resurrect” that same evidence if they later determined

that the evidence would be “beneficial” (id. at 1203). Neither ground justifies denying

defendant a hearing.



                                            II.

       This appeal presents two novel questions concerning the definition of “new

evidence” under CPL 440.10 (1) (g): first, whether evidence that is inaccessible at the time

of trial, but later recovered postjudgment through the use of new technology, is “new

evidence [that] has been discovered”; and, second, whether defendant’s own destruction of

that same evidence before trial forecloses postconviction relief. A related subsidiary

question is how a defendant’s knowledge of the existence of the evidence prior to the

verdict informs resolution of these two core questions.

       Beginning with the statutory language (see Majewski v Broadalbin-Perth Cent.

School Dist., 

 [1998]), CPL 440.10 (1) (g) provides that a defendant may

seek to vacate a judgment of conviction where

              “[n]ew evidence has been discovered since the entry of a
              judgment based upon a verdict of guilty after trial, which could
              not have been produced by the defendant at the trial even with
              due diligence on [their] part 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; provided that a motion based upon such ground
              must be made with due diligence after the discovery of such
              alleged new evidence.”



                                           -3-
                                            -4-                                       No. 17

As is clear from the language, evidence falls within the scope of this provision if three

elements are satisfied: (1) the evidence is discovered after trial and entry of judgment;

(2) the defendant could not have produced the evidence at trial “even with due diligence”

in trying to obtain it; and (3) there is “a probability” that the evidence would have led to a

“more favorable” verdict for the defendant.1

       Turning to the first question, CPL 440.10 (1) (g), by its plain terms, applies

regardless of whether the evidence existed at the time of trial because the statute requires

only that the evidence could not have been “produced . . . at trial,” meaning that the

defendant could not have proffered that evidence. Put a different way, if a change in

circumstances enables a defendant to produce material evidence that the defendant could

not access at trial, the defendant may argue postjudgment that the evidence has been newly

discovered, even if the defendant knew that the evidence existed before or during trial.

Contrary to the majority’s view, there is no justifiable distinction between evidence that

did not exist before trial and evidence a defendant knew existed at one time but had no way

to access for use at trial. In both scenarios, the defendant could not put the evidence before

the trier of fact for it to weigh in assessing whether the prosecution has proved the

defendant’s guilt beyond a reasonable doubt.

       This interpretation is further supported by the statute’s lack of a due diligence

requirement for actually producing the evidence at trial, although requiring that a defendant



1
 The statutory standard is derived from our common law rule (see People v Salemi, 

 [1955]; People v Priori, 

 [1900]).

                                            -4-
                                             -5-                                         No. 17

act diligently to file the motion once the evidence is discovered. Rather, the statute requires

only that a defendant prove, counterfactually, “that [the evidence] could not have been

produced by the defendant at the trial even with due diligence” (CPL 440.10 [1] [g]

[emphasis added]). The statute thus focuses on the availability of the evidence for use at

the time of trial, rather than what would necessarily constitute a defendant’s futile attempts

at securing it. A few hypotheticals illustrate the proper application of the statute.2

       Hypothetical A: A jury convicts a defendant for murdering their employer.

Defendant maintains their innocence. After trial, the defendant learns that the decedent left

a suicide note which the decedent’s spouse hid in order to collect on their life insurance

policy. The note existed at the time of trial, but defendant did not know of it or even have

reason to consider that this was a death by suicide. Thus, the defendant could not have

produced the evidence at trial and, because this creates “a probability” that the jury would

have acquitted the defendant of murder, the note is “[n]ew evidence” under CPL 440.10

(1) (g).

       Hypothetical B: Assume that the defendant actually saw the note before the death

of the employer, but could not produce evidence of the note’s existence and nothing else

suggests that the death was a suicide. If the note is then found after entry of judgment, the


2
   The majority makes the irrelevant point that my hypotheticals are factually
distinguishable from this appeal (see majority op at 8). Hypotheticals are effective thought
exercises to test the premise and outer limits of a proposed legal rule and when deployed
in a judicial opinion they have the added benefit of illustrating the rule in application.
Indeed, judges, including United States Supreme Court Justices and members of this Court,
lawyers, and educators regularly deploy hypotheticals orally and in writing to illustrate
legal doctrine and praxis. We expect litigators to address hypotheticals from the bench
during oral arguments for this very reason.
                                             -5-
                                             -6-                                        No. 17

note is evidence within the scope of CPL 440.10 (1) (g), even though it existed at the time

of trial and defendant knew of its existence but could not produce it.

       Before addressing the second question presented on this appeal regarding

defendant’s destruction of the evidence, it is necessary to consider how the statute applies

to destroyed evidence generally. Obviously, it takes no huge leap of logic to realize that

evidence cannot be produced if it is not accessible, regardless of whether it was destroyed.

While in the past, destroyed evidence was likely lost for all time, the proliferation of digital

communication and technological advancements that permit recovery of deleted digital

materials increases the possibility that more evidence will fall within the scope of CPL

440.10 (1) (g). There is much benefit from this new accessibility. Indeed, consideration of

such evidence through new technology furthers the factfinding process and society’s

interest in avoiding wrongful convictions and putting to rest unsubstantiated claims of

innocence (see e.g. People v Jones, 

 [2014] [ordering hearing on

new forensic DNA method]; People v Bailey, 

 [Monroe County Ct 2014]

[holding hearing where prosecution contested defendant’s claim that change in scientific

and medical understanding of so-called shaken baby syndrome was new evidence], affd

 [4th Dept 2016]; People v Chase, 

, 

 [Washington County Ct 2005] [holding hearing where prosecution contested

defendant’s claim that change in scientific understanding of physics of propane dispersal

was new evidence]; Innocence Project, DNA Exonerations in the United States,

https://innocenceproject.org/dna-exonerations-in-the-united-states/ [last accessed Feb. 23,

2023]; Kashmir Hill, The Exoneration Machine, NY Times, Nov. 24, 2019, § BU at 1, col

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                                            -7-                                       No. 17

1, available at https://www.nytimes.com/2019/11/22/business/law-enforcement-public-

defender-technology-gap.html [last accessed Feb. 23, 2022]). The narrow view advocated

by the prosecution—that CPL 440.10 (1) (g) should be limited to evidence not in existence

at the time of trial—is contrary to the broad language adopted by the legislature and would

dramatically limit the bases for overturning wrongful convictions.

       Returning to hypotheticals A and B, consider what would happen if the decedent’s

spouse destroyed the note upon finding it, but unbeknownst to them, the decedent saved

the text of the note on their computer and—after printing and signing the note—deleted the

electronic version. Assume further that the defendant had no knowledge that the note was

computer generated or deleted until after the spouse’s death, at which point the decedent’s

children successfully retrieved the computer files, including the note, which they sent to

the defendant’s lawyer. The defendant may submit this evidence in support of a motion

under CPL 440.10 (1) (g), even though the note was destroyed prior to trial. Indeed,

regardless of whether the note was recovered by application of software available at the

time of trial or with technology developed after the judgment, the result is the same:

retrieved data of the note’s content is “[n]ew evidence” that the defendant could not have

produced at trial (CPL 440.10 [1] [g]).

       As this discussion illustrates, the statute does not treat as dispositive the pretrial

existence of the evidence, whether or not the defendant knew about it. Instead, what matters

is the evidence’s availability at the time of trial (i.e., whether the defendant could have

produced the evidence in time to influence the outcome). For the same reasons that

favorable evidence unknown to the defendant and later brought to their attention may be

                                            -7-
                                            -8-                                       No. 17

submitted in support of CPL 440.10 (1) (g) motion, so may evidence known but

inaccessible to a defendant be the legal basis for such motion (see CPL 440.30 [4] [a]).



                                             III.

       Turning to the second question, regarding whether evidence destroyed by a

defendant falls within the scope of CPL 440.10 (1) (g), we can first recognize that the

evidence may still constitute “[n]ew evidence” if later recovered where the destruction was

innocent or mistaken (i.e., without knowledge of its potential exculpatory nature), and not

carried out to avoid prosecution. Suppose, for example, a defendant had an extramarital

affair during which the couple shared compromising text messages and photographs before

deleting them from their respective cell phones. Later, the defendant realized that the data

provides the only evidence of an alibi relating to various criminal charges. The lover denied

the affair at trial and has since destroyed their cell phone, and no other evidence of the

affair existed. If the defendant is able to recover the text messages and photographs with

technology developed after their judgment of conviction, the statute permits its

consideration as part of a motion to vacate that judgment.

       A different case is presented where a defendant deletes digital materials in

anticipation of prosecution, such as after questioning during an investigation, or pending

trial. The Appellate Division concluded, and the majority also suggests (see majority op at

6), that CPL 440.10 (1) (g) should not apply where a defendant destroys inculpatory

evidence and subsequently attempts to use it to upset the verdict. I agree that the law should

not tolerate such gaming of our criminal legal system and that such conduct is not what the

                                            -8-
                                           -9-                                      No. 17

legislature intended when it enacted CPL 440.10 (1) (g). However, I disagree that this

conclusion can be made on defendant’s motion without a hearing.3 The proper course in

this case would be to hold a hearing so that the court may fully consider, based on the

testimony and documentary evidence presented, whether defendant pursued a defense that

he had no sexual contact with the victim as his best defense in light of the available

evidence, and whether his argument that the evidence is only now recoverable is a

contrivance to avoid the consequences of a failed trial strategy in hopes of pursuing a

different defense based on lack of forcible compulsion at a new trial (see Salemi, 

).4



                                           IV.

      The remaining question presented concerns the minimal showing required for a

court to grant a hearing on the motion, a standard which the majority misapprehends. The

answer is found in the Criminal Procedure Law and our case law. Under CPL 440.30 (4)

(b), a court “may deny” a CPL 440.10 motion “without conducting a hearing if,” inter alia,



3
 The legislature is of course free to consider whether that policy consideration should not
matter in the text of CPL 440.10 (1) (g), which, as written, requires only that a defendant
could not have produced the evidence at trial and makes no mention of the reason for the
unavailability.
4
  Even if evidence destroyed by a defendant cannot be the basis for CPL 440.10 (1) (g)
motion, the motion should not have been denied here without a hearing since the text
messages and photographs were digital correspondence between defendant and the victim
and defendant did not destroy the evidence from the victim’s cell phone, which was never
produced for further forensic examination by the defense.

                                           -9-
                                            - 10 -                                     No. 17

“[t]he motion is based upon the existence or occurrence of facts and the moving papers do

not contain sworn allegations substantiating or tending to substantiate all the essential

facts.” If that is not the case (and the court does not summarily grant the motion), the court

“must conduct a hearing” (CPL 440.30 [5] [emphasis added]). In other words, the statute

creates a presumption that a hearing will be granted; only in the limited circumstances set

out therein may a court avoid that obligation.

       Here, the motion court abused its discretion in denying defendant’s motion without

a hearing (see People v Dogan, 

 [2021]; People v Wright, 

 [2016]; People v Jones, 

 [2014]). Initially, I disagree with the

majority’s characterization of defendant’s motion papers as “inadequate, conclusory, and

self-serving” (majority op at 7). The papers contained sworn allegations from: (1) trial

counsel, both of whom asserted that they did not believe that the deleted materials were

recoverable from defendant’s cell phone; (2) defendant’s mother, who stated that on

several occasions she requested that the State Police turn over defendant’s cell phone and

that defendant’s cell phone provider deliver copies of defendant’s text messages; and, (3)

critically, a forensic expert, who stated in two reports and an affidavit that he was only able

to recover the materials from defendant’s cell phone after the software that he used to

“root” defendant’s cell phone had been updated.5 The expert’s second report, the findings


5
  “Rooting enables users to perform higher privileged functions on a device than are
ordinarily possible under regular user mode. . . . The process typically exploits a security
flaw in a specific device or operating system and may lead to further security
vulnerabilities” (Justin Grover, Android Forensics: Automated Data Collection and
Reporting from a Mobile Device, 10 Digit Investigation S12, S13-S14 [2013]).

                                            - 10 -
                                            - 11 -                                    No. 17

of which he affirmed in his affidavit, stated that, in April 2017 (almost one full year after

trial), the rooting software that he used “was designed to be compatible with the make and

model of the phone, but was incapable of successfully breaking the security of the device.”

He explained, however, that although that initial attempt had failed, generally, “[a]s rooting

software is continually updated and enhanced, it will . . . be able to break the security of a

larger number of older devices that were previously inaccessible.” Thus, after the software

had been updated, the expert attempted to root the cell phone again in October 2018. This

time, he “successfully completed the rooting procedure” in “approximately five minutes”

and extracted the deleted text messages and photographs.

       The majority’s contention that those statements were insufficient to warrant a

hearing ignores CPL 440.30 (4)’s allowance for denial of the motion without a hearing

only if the moving papers lack “sworn allegations substantiating or tending to substantiate

all the essential facts.” It is undisputed that the text messages and photographs were

deleted; at a minimum, defendant’s papers tend to substantiate his claim that they were not

recoverable at the time of trial. That was enough to entitle him to a hearing under the

statute, which does not require certain proof of the facts on submission.



                                             V.

       We are all benefited by getting to the truth. The legislature recognized that core

objective of our judicial system with its enactment of CPL 440.10 (1) (g) which allows for

consideration of evidence discovered after judgment where such evidence carries a

probability of a more favorable outcome for a defendant. The legislature has also limited

                                            - 11 -
                                           - 12 -                                    No. 17

the circumstances in which a court may deny the motion without a hearing, setting forth

specific requirements in CPL 440.30 (4) (b) for a judicial disposition on the motion papers.

The majority applied a standard that requires more than the legislature has deemed

necessary. This of course we cannot do.

       Defendant submitted sworn statements and an expert report describing their pre-

and posttrial efforts to secure his cellular phone and the materials deleted therefrom and

asserting that access to this evidence was possible only by application of postjudgment

newly updated technology. Therefore, I would reverse and remit to County Court for a

hearing on defendant’s motion that the text messages and photographs are new evidence

discovered after the judgment of conviction and that the evidence creates a probability of

a more favorable outcome for defendant on the counts that require the prosecutor to prove

beyond a reasonable doubt defendant’s forcible compulsion of the victim.




Order affirmed. Opinion by Judge Garcia. Judges Singas, Cannataro and Troutman concur.
Judge Rivera dissents in an opinion, in which Chief Judge Wilson concurs. Judge Halligan
took no part.


Decided April 20, 2023




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