| People v Howington |
| 2014 NY Slip Op 07811 [122 AD3d 1289] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSteven A. Howington, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Onondaga County Court (Joseph E.Fahey, J.), entered October 30, 2009. The order denied the motion of defendant to vacatea judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his motion to vacate thejudgment convicting him of, inter alia, robbery in the first degree (Penal Law§ 160.15 [4]) on the grounds that material evidence at trial was false andwas known by the prosecutor to be false, there was prosecutorial misconduct, and there isnewly discovered evidence (see CPL 440.10 [1] [c], [f], [g]). Contrary todefendant's contention, County Court did not err in denying his motion withoutconducting a hearing inasmuch as defendant's motion papers did "not contain swornallegations substantiating or tending to substantiate all the essential facts" of defendant'sclaims (CPL 440.30 [4] [b]; seePeople v Vigliotti, 24 AD3d 1216, 1216 [2005]). The recantation affidavit of aprosecution witness submitted by defendant in support of the motion does not establishthat the prosecutor knew or should have known that his trial testimony was false (seeCPL 440.10 [1] [c]; People v Lent, 204 AD2d 855, 855 [1994], lvdenied 84 NY2d 869 [1994]). Similarly, defendant failed to submit evidencesupporting his contention that the prosecutor engaged in improper and prejudicialconduct within the meaning of CPL 440.10 (1) (f), i.e., "[i]mproper and prejudicialconduct not appearing in the record [that] occurred during a trial resulting in thejudgment" that would have required reversal "if it had appeared in the record" (CPL440.10 [1] [f]). As noted, the recantation affidavit does not establish that the prosecutorknew or should have known that the trial testimony was false, and thus defendant failedto establish that the prosecutor engaged in improper conduct. Moreover, a claim of suchmisconduct also requires a showing of prejudice (see generally People v Jackson,78 NY2d 638, 646-647 [1991]), and there is no indication that defendant was prejudicedby the alleged improper conduct. Furthermore, the recantation affidavit does not qualifyas newly discovered evidence pursuant to CPL 440.10 (1) (g) because the issues raised inthe affidavit would merely impeach or contradict the trial testimony of the prosecutionwitness, and the new evidence therefore is not "of such character as to create aprobability that . . . the verdict would have been more favorable to thedefendant" had the evidence been introduced (id.; see People v Miles, 136AD2d 958, 959 [1988], lv denied 71 NY2d 971 [1988]).
Finally, we do not address defendant's contention that he was denied effectiveassistance of appellate counsel on his direct appeal, raised in the context of this CPLarticle 440 motion. The proper vehicle for raising that contention "is by way of a motionfor a writ of error coram nobis" (People v Smith, 78 AD3d 1583, 1584 [2010]) or, when therecord is adequate, that contention may be raised, pro se, on direct appeal (see Peoplev McKinney, 302 AD2d 993, 995 [2003]). Present—Scudder, P.J., Centra,Lindley, Sconiers and DeJoseph, JJ.