Justice Richard Lee Price
Judgment was entered against McKee convicting him of second degree murder. He sought to vacate his judgment of conviction arguing that a newly discovered witness established his actual innocence. After McKee’s conviction, the Appellate Division affirmed the conviction rejecting his argument that the trial court erred in denying his application to admit a hearsay statement in evidence. It also found the prosecution’s 13 month delay in disclosing a document containing a statement of an individual identifying a Hispanic man as the shooter did not deprive McKee of due process, nor precluded him from presenting an effective defense. McKee claimed fellow inmate, Clarke, in an affidavit, claimed he witnessed a Hispanic man, not McKee, shoot and kill Vance, arguing such testimony would likely change the result if presented at a new trial. The court disagreed same was newly discovered evidence, noting testimony McKee now sought to present through Clarke was elicited at trial—that a Hispanic man, not McKee, fatally shot Vance. It noted the jury heard such testimony and theory, and rejected it, stating even if this court credited Clarke’s testimony, it would not likely change the outcome, and denied the motion.
