PEOPLE v. JEFFERSON (2024)

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Miriam Cyrulnik, J.), dated May 30, 2019, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Edward Rappaport, J.) rendered June 4, 1992, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the order is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of actual innocence.  After a hearing, the court determined that the alleged new evidence, consisting of an identification recantation that was then itself recanted, was not reliable and, thus, insufficient to establish that the defendant was factually innocent (see People v. Fraser, 165 A.D.3d 697, 699, 84 N.Y.S.3d 553;  People v. Hamilton, 115 A.D.3d 12, 23, 979 N.Y.S.2d 97).

Contrary to the defendant's contention, the Supreme Court also properly denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of newly discovered evidence.  The defendant failed to meet his burden of demonstrating that the aforesaid recantation and the retraction of that recantation would probably change the result if a new trial were granted (see People v. Jenkins, 84 A.D.3d 1403, 1405–1406, 923 N.Y.S.2d 706;  People v. McGuire, 44 A.D.3d 968, 968–969, 845 N.Y.S.2d 365).

The defendant's remaining contentions either are not properly before this Court or do not warrant reversal.

DUFFY, J.P., WOOTEN, WARHIT and TAYLOR, JJ., concur.