| People v Medina |
| 2010 NY Slip Op 09290 [79 AD3d 909] |
| December 14, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlexManuel Medina, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht,and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the County Court, Westchester County(Zambelli, J.), entered October 30, 2008, which denied, without a hearing, his motion pursuant to CPL440.10 to vacate a judgment of the same court (Leavitt, J.), rendered May 21, 1997, convicting him ofmurder in the second degree, attempted robbery in the first degree, attempted robbery in the seconddegree, criminal possession of a weapon in the second degree, and criminal possession of a weapon inthe third degree, upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant's motion to vacate his judgment of conviction pursuant to CPL 440.10 (1) (g) isbased primarily on a statement from a fellow inmate, recanting a prior statement to police inculpating thedefendant. Not only was the statement unsworn (see CPL 440.30 [4] [b]), but it was preparedmore than 10 years after the defendant's conviction, and after the inmate moved to the same prison inwhich the defendant was incarcerated. Moreover, the inmate's account of the incident in question isunbelievable, particularly in light of the fact that it contradicts the defendant's own version of events.
Accordingly, the evidence presented was not "of such character as to create a probability that had[it] been received at the trial the verdict would have been more favorable to the defendant" (CPL440.10 [1] [g]), and the County Court providently exercised its discretion in denying the defendant'smotion without a hearing (see People vMendez, 71 AD3d 696 [2010]; People v Mears, 55 AD3d 439, 440 [2008]; People v Cintron,306 AD2d 151, 152 [2003]; People v Perkins, 234 AD2d 482 [1996]; People vRobinson, 211 AD2d 733, 733-734 [1995]).
There is not merit to the defendant's contention that the County Court should have consideredcertain evidence submitted in connection with his prior CPL 440.10 motion when assessing the instantCPL 440.10 motion (see CPL 440.10 [3] [b]). Skelos, J.P., Santucci, Balkin and Chambers,JJ., concur.