PEOPLE v. JACKSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. Adrian JACKSON, Appellant.

Decided: April 25, 1997

Before DENMAN, P.J., and PINE, DOERR, BALIO and FALLON, JJ. Howard Broder, Rochester, for Appellant. Howard A. Relin by Robert Mastrocola, Rochester, for Respondent.

Following a jury trial in 1986, defendant was convicted of five counts of attempted robbery in the first degree, two counts of manslaughter in the first degree and two counts of felony murder.   In 1991 defendant moved, pursuant to CPL 440.10(1)(g), to vacate the judgment of conviction on the ground of newly discovered evidence:  to wit, an affidavit from codefendant Thurman Dicker stating that defendant was not involved in the crimes.   Supreme Court denied the motion without a hearing, ruling that the affidavit does not constitute newly discovered evidence.   We affirm.

“It is well settled that on a motion for a new trial based upon newly discovered evidence the movant must establish, among other things, that ‘the newly discovered evidence must be such as to probably, not merely possibly, change the result if a retrial is had’ ” (People v. Rodriguez, 193 A.D.2d 363, 365, 596 N.Y.S.2d 824, lv denied 81 N.Y.2d 1079, 601 N.Y.S.2d 599, 619 N.E.2d 677, quoting People v. Penoyer, 135 A.D.2d 42, 44, 523 N.Y.S.2d 672, affd 72 N.Y.2d 936, 532 N.Y.S.2d 843, 529 N.E.2d 173).

Here, it is not probable that defendant would receive a more favorable verdict at a retrial if codefendant Dicker testified in accordance with his affidavit (see, People v. Lane, 212 A.D.2d 637, 638, 622 N.Y.S.2d 590, lv denied 85 N.Y.2d 975, 629 N.Y.S.2d 735, 653 N.E.2d 631;  People v. Milea, 184 A.D.2d 791, 792, 587 N.Y.S.2d 196, lv denied 80 N.Y.2d 975, 591 N.Y.S.2d 145, 605 N.E.2d 881).   Although no eyewitnesses linked defendant to the crimes, the evidence of his guilt is compelling.   Four persons, including two relatives of defendant, testified that defendant told them that he had been involved in the crimes.   The court admitted into evidence at trial three letters written by defendant wherein he implicated himself.   Additionally, in a written statement to the police, codefendant Dicker identified defendant as one of the four perpetrators, and Dicker did not explain in his affidavit why he initially told the police that defendant was involved in the crimes (see, People v. Rodriguez, supra, at 366, 596 N.Y.S.2d 824).   Thus, the court properly determined that codefendant Dicker's affidavit does not constitute newly discovered evidence and properly denied the CPL 440.10 motion without a hearing (see, People v. Davenport, 233 A.D.2d 771, 650 N.Y.S.2d 418;  People v. Baxley, 194 A.D.2d 681, 682, 599 N.Y.S.2d 105, mod on other grounds 84 N.Y.2d 208, 616 N.Y.S.2d 7, 639 N.E.2d 746, rearg dismissed 86 N.Y.2d 886, 635 N.Y.S.2d 952, 659 N.E.2d 775;  People v. Allison [appeal No. 1], 119 A.D.2d 1005, 500 N.Y.S.2d 888, lv denied 68 N.Y.2d 665, 505 N.Y.S.2d 1030, 496 N.E.2d 688, 68 N.Y.2d 912, 508 N.Y.S.2d 1032, 501 N.E.2d 605;  see also, People v. Johnson, 208 A.D.2d 562, 617 N.Y.S.2d 27, lv denied 84 N.Y.2d 937, 621 N.Y.S.2d 534, 645 N.E.2d 1234;  People v. Mossop, 191 A.D.2d 715, 596 N.Y.S.2d 719, lv denied 81 N.Y.2d 1017, 600 N.Y.S.2d 205, 616 N.E.2d 862).

Defendant's reliance on People v. Staton, 224 A.D.2d 984, 637 N.Y.S.2d 838 is misplaced.   We held in Staton that the proffered testimony of a codefendant who sought to exculpate defendant after defendant's conviction constituted newly discovered evidence and that the court erred in summarily denying the motion.   Here, unlike in Staton, the People argue that the proffered evidence would not change the result upon retrial.   Moreover, also unlike in Staton, the codefendant had not previously implicated defendant.   It is well settled that recantation testimony is inherently unreliable (see, People v. Pugh, 236 A.D.2d 810, 653 N.Y.S.2d 994;  People v. Rodriguez, 201 A.D.2d 683, 608 N.Y.S.2d 255, lv denied 83 N.Y.2d 914, 614 N.Y.S.2d 396, 637 N.E.2d 287;  People v. Baxley, supra, 194 A.D.2d, at 682, 599 N.Y.S.2d 105;  People v. Brown, 126 A.D.2d 898, 900, 510 N.Y.S.2d 932, lv denied 70 N.Y.2d 703, 519 N.Y.S.2d 1037, 513 N.E.2d 714).

Order unanimously affirmed.

MEMORANDUM: