Opinion
January 28, 1985
Appeal from the Supreme Court, Suffolk County (Canudo, J.).
Judgment and order affirmed.
Defendant has been convicted of manslaughter in the first degree in connection with the shooting of one Ethel Carter. The evidence at trial included an admission made by defendant to an inmate at the Suffolk County Jail. While such testimony should always be viewed with circumspection and, upon request, the jury so cautioned (see, e.g., United States v. Swiderski, 539 F.2d 854, 859-860; United States v. Garcia, 528 F.2d 580, cert den sub nom. Sandoval v. United States, 426 U.S. 952; Fresneda v State, 483 P.2d 1011, 1015 [Alaska]; Buckley v. State, 95 Nev. 602; LeBeau v. State, 589 P.2d 1292 [Wyo]; 1CJI [NY] 7.10; 1 Devitt Blackmar, Federal Jury Practice and Instructions [3d ed], § 17.02), it, along with the other proof in the case, was more than sufficient to establish defendant's guilt beyond a reasonable doubt ( People v. Malizia, 62 N.Y.2d 755, 757, cert den ___ US ___, 105 S Ct 327; People v. Contes, 60 N.Y.2d 620; United States v. Holmes, 453 F.2d 950, 952, cert den 406 U.S. 908).
Subsequently, however, the inmate purported to recant his testimony and defendant sought to vacate the conviction pursuant to CPL article 440. The court denied the application without a hearing. We agree with that determination.
It is ancient learning that "[t]here is no form of proof so unreliable as recanting testimony" ( People v. Shilitano, 218 N.Y. 161, 170) and the court properly exercised its discretion in finding that the recantation affidavit executed by the inmate was incredible without conducting an evidentiary hearing (CPL 440.10, subd 1, pars [c], [f]; People v. Brown, 56 N.Y.2d 242, 246; People v. Welcome, 37 N.Y.2d 811; People v. Slaughter, 37 N.Y.2d 596, 601; People v. Balan, 107 A.D.2d 811). The inmate had testified in exchange for a promise that the People would recommend a lighter sentence in connection with a conviction upon which he was awaiting sentence. The affidavit was executed after the inmate had received a higher sentence than anticipated because he had been arrested on another charge.
We also note that while the trial prosecutor failed to comply with the provisions of CPL 240.45 by turning over certain material concerning a prosecution witness after, rather than before, the People's opening address, this does not afford a basis for reversal. The purpose of the statutory requirement is to avoid "the intermittent and irritating * * * delays caused by prior-statement turnovers" (Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 240.45, p 408) and, absent bad faith or prejudice, not present here, the appropriate remedy for noncompliance is an adjournment, not preclusion ( People v. Keppler, 92 A.D.2d 1032, 1033; People v. Napierala, 90 A.D.2d 689). Titone, J.P., Mangano, Gibbons and O'Connor, JJ., concur.