| People v Lane |
| 2012 NY Slip Op 07823 [100 AD3d 1540] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Johnnie Lane,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Supreme Court, Erie County (M. WilliamBoller, A.J.), dated April 8, 2009. The order denied the motion of defendant to vacate hisconviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order that denied, without a hearing, his motionpursuant 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 counteach of manslaughter in the first degree (§ 125.20) and attempted murder in the seconddegree (§§ 110.00, 125.25 [1]). On defendant's direct appeal, we modified thejudgment by directing that the sentences imposed on certain counts run concurrently, but weotherwise affirmed the judgment (People v Lane, 221 AD2d 948 [1995], lvdenied 87 NY2d 975 [1996], cert denied 519 US 829 [1996]). Here, we concludethat Supreme Court properly denied defendant's motion pursuant to CPL 440.10. In support ofthe 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 participatingin the crimes at issue. Instead, the witness claimed to have heard a secondhand account ofdefendant's involvement in those crimes. The witness also asserted that the Erie County DistrictAttorney's office paid him $2,500 to testify falsely that he heard about defendant's participationfirsthand.
"There is no form of proof so unreliable as recanting testimony" (People v Shilitano,218 NY 161, 170 [1916], rearg denied 218 NY 702 [1916]), and such testimony is"insufficient alone to warrant vacating a judgment of conviction" (People v Thibodeau,267 AD2d 952, 953 [1999], lv denied 95 NY2d 805 [2000]). "Consideration ofrecantation evidence involves the following factors: (1) the inherent believability of the substanceof 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 boththe trial testimony and the recantation; (5) the importance of facts established at trial asreaffirmed in the recantation; and (6) the relationship between the witness and defendant asrelated to a motive to lie" (People vWong, 11 AD3d 724, [*2]725-726 [2004]). Otherrelevant factors, however, are whether the recantation refutes the eyewitness testimony of anotherwitness (see People v Davenport, 233 AD2d 771, 773 [1996], lv denied 89 NY2d1091 [1997]; see also People vAvery, 80 AD3d 982, 985 [2011], lv denied 17 NY3d 791 [2011]), whether theaccusations in the recantation "were highly improbable and were specifically denied by theformer prosecutor" (People v Cintron, 306 AD2d 151, 152 [2003], lv denied 100NY2d 641 [2003]), and whether the allegedly false testimony at trial prejudiced defendant(see People v Friedgood, 58 NY2d 467, 471-472 [1983]; People v Stevens, 275AD2d 902, 902 [2000], lv denied 96 NY2d 807 [2001]; Thibodeau, 267 AD2d at953; People v Cutting, 210 AD2d 791, 792-793 [1994], lv denied 85 NY2d 971[1995]).
Coupled with abundant eyewitness testimony at trial placing defendant at the scene of thecrimes, there was the trial testimony of multiple friends of defendant, not merely the witness atissue, stating that defendant bragged to them about committing the crimes. In addition, evidencepresented at trial established that shell casings and bullets were recovered that matched the gunfound in defendant's home; defendant gave a written statement to the police attesting to hisinvolvement in the crimes; and two witnesses came forward and told the police that defendantwas involved in the crimes, before the police even suspected defendant's involvement. Therefore,the conviction was not affected by the allegedly false testimony. Finally, defendant's motion wasproperly denied on the additional ground that he failed to set forth a reason for delaying filing hisCPL 440.10 motion with the information regarding the allegedly false testimony. Due diligencein uncovering an error is required, and any unjustifiable delay is inexcusable (see CPL440.10 [3] [a]). Defendant has provided no reason for the 14-year delay in bringing the allegedlyfalse testimony to the court's attention. Present—Scudder, P.J., Fahey, Carni, Valentinoand Martoche, JJ.