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The PEOPLE of the State of New York, Respondent, v. Johnnie LANE, Defendant–Appellant.
Defendant appeals from an order that denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment convicting him upon a jury verdict of, inter alia, three counts of murder in the second degree (Penal Law § 125.25[1], [3] ), and one count each of manslaughter in the first degree (§ 125.20) and attempted murder in the second degree (§§ 110.00, 125.25[1] ). On defendant's direct appeal, we modified the judgment by directing that the sentences imposed on certain counts run concurrently, but we otherwise affirmed the judgment (People v. Lane, 221 A.D.2d 948, lv. denied 87 N.Y.2d 975, cert. denied 519 U.S. 829). Here, we conclude that Supreme Court properly denied defendant's motion pursuant to CPL 440 .10. In support of the motion, defendant presented the sworn written recantation of a trial witness who stated that, contrary to his testimony at trial, defendant never made any admissions to him about participating in the crimes at issue. Instead, the witness claimed to have heard a secondhand account of defendant's involvement in those crimes. The witness also asserted that the Erie County District Attorney's office paid him $2,500 to testify falsely that he heard about defendant's participation firsthand.
“There is no form of proof so unreliable as recanting testimony” (People v. Shilitano, 218 N.Y. 161, 170, rearg. denied 218 N.Y. 702), and such testimony is “insufficient alone to warrant vacating a judgment of conviction” (People v. Thibodeau, 267 A.D.2d 952, 953, lv denied 95 N.Y.2d 805). “Consideration of recantation evidence involves the following factors: (1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” (People v. Wong, 11 AD3d 724, 725–726). Other relevant factors, however, are whether the recantation refutes the eyewitness testimony of another witness (see People v. Davenport, 233 A.D.2d 771, 773, lv denied 89 N.Y.2d 1091; see also People v. Avery, 80 AD3d 982, 985, lv denied 17 NY3d 791), whether the accusations in the recantation “were highly improbable and were specifically denied by the former prosecutor” (People v. Cintron, 306 A.D.2d 151, 152, lv denied 100 N.Y.2d 641), and whether the allegedly false testimony at trial prejudiced defendant (see People v. Friedgood, 58 N.Y.2d 467, 471–472; People v. Stevens, 275 A.D.2d 902, 902, lv denied 96 N.Y.2d 807; Thibodeau, 267 A.D.2d at 953; People v. Cutting, 210 A.D.2d 791, 792–793, lv denied 85 N.Y.2d 971).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
MEMORANDUM:
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Decided: November 16, 2012
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