Facts: 50-year-old Mr. Hartle, who was convicted of sex abuse/rape of 15-year-old, subsequently
filed a C.P.L. § 440.10(1)(g) motion proffering incriminating texts and explicit pictures exchanged
with the complainant as “newly discovered evidence,” that Hartle had deleted prior to arrest and
never sought to retrieve during trial.

Evidence was recovered via “rooting” retrieval that counsel asserted was not available at trial.
Forensic specialist submitted an affidavit saying the method was unsuccessful in 2017 and only
became available after a software update in 2018. Also supported by affirmation from defendant’s
mother describing conversations with Verizon about failed efforts to get the deleted messages.

Motion denied without hearing

Held (Garcia): Evidence was “far from” newly discovered. Defendant knew of it, was involved in
creation of it and destroyed prior to prosecution to conceal evidence and thus could not claim that
because technology was not available it is now “newly discovered.”

Also, defendant did not meet the due diligence prong of the statute – that the evidence could not
have been produced at trial even with due diligence because he made no showing that the evidence
was inaccessible before trial, or that he tried to obtain it. Defendant was aware texts/pictures were
missing and took no efforts to obtain them, and used the absence of evidence to support his
defense.

Rivera dissent: Rivera finds that the expert’s report and other submissions entitled Mr. Hartle to a
hearing on whether the evidence was newly discovered and, if so, whether he acted with due
diligence in moving for relief and had established a probability that admission of the evidence would
have resulted in a more favorable verdict. Judge Rivera also faults the majority for creating a due
diligence discovery standard and burden of production contrary to the statutory language:

· Evidence is newly discovered if it existed at time of trial but could not be produced, meaning
defendant could not have proffered it. Availability controls.
· Due diligence requirement does not apply to actually producing the evidence at trial and
instead requires that a defendant act diligently to file the motion once the evidence is
discovered.
· Digital evidence is unique and even when destroyed, is not necessarily forever lost.
· Evidence can clearly be “newly discovered” if destruction is innocent or mistaken and not
done to avoid prosecution.
· Law should not tolerate deliberate destruction/gaming, but this issue required a hearing.
· C.P.L. § 440.30 (4) (b) creates a presumption that a hearing will be granted absent the limited
circumstances set out therein.
· Disagrees with majority’s characterization of papers as inadequate, self-serving and
conclusory. Affidavits were “sworn allegations substantiating or tending to substantiate all
the essential facts,” as statute requires to entitle the defendant to a hearing.

CAL Observes: Expected result with bad facts and bad acts but Rivera’s decision makes nice points
using statutory language that might get traction in a different case.