| People v McGuire |
| 2007 NY Slip Op 08092 [44 AD3d 968] |
| October 23, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v George McGuire, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas S. Burkaof counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Tomei, J.), dated March 22, 2004, which denied, after a hearing, his motion pursuant to CPL440.10 (1) (g) to vacate a judgment of the same court (Lagana, J.) rendered November 13, 1990,convicting him of murder in the second degree, attempted murder in the second degree, assault inthe first degree (three counts), and criminal possession of a weapon in the second degree (threecounts), upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The evidence at the 1990 trial established, through the testimony of an eyewitness whopersonally knew the defendant, that the defendant, Craig Twiggs, and Harold Georgeintentionally fired their guns at Leslie Lewis. Lewis was struck a total of nine times, anotherperson standing in the vicinity was struck and killed, and two others were injured. In 2002 thedefendant moved to vacate his judgment of conviction pursuant to CPL 440.10 (1) (g) on theground of newly-discovered evidence, namely, affidavits signed by Twiggs and George, statingthat the defendant was not present at the shooting. The Supreme Court ordered an evidentiaryhearing on the matter. After receiving testimony from, among others, Twiggs and George, theSupreme Court denied the motion. We affirm.
" '[T]here is no form of proof so unreliable as recanting testimony' " (People vRodriguez, 201 AD2d 683 [1994], quoting People v Shilitano, 218 NY 161, 170[1916]). In their respective pleas [*2]of guilty in 1991 Twiggs andGeorge stated that the defendant was with them at the time of the shooting, that he possessed agun, and that he fired his gun at Leslie Lewis. At the evidentiary hearing, Twiggs and Georgefailed to provide a credible reason for why they originally named the defendant as a fellowshooter and did not come forward earlier to exculpate the defendant. In addition, the numerousinconsistencies in their respective accounts of the shooting established that their testimony wouldnot "probably change" the verdict if introduced at trial (People v Salemi, 309 NY 208,216 [1955], cert denied 350 US 950 [1956]; see People v Milea, 184 AD2d 791,792 [1992]; see also People v Yates, 290 AD2d 888, 890 [2002]; People vJackson, 238 AD2d 877, 878 [1997]).
The defendant's contention that his sentence was excessive is not properly before this Court.Rivera, J.P., Krausman, Florio and Dillon, JJ., concur.