Opinion
December 14, 1984
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., Hancock, Jr., Denman, Boomer and O'Donnell, JJ.
Order unanimously affirmed. Memorandum: Defendant urges that County Court erred in denying without a hearing his CPL 440.10 motion to vacate his 1977 conviction for robbery, first degree, arising from the armed robbery of a dry cleaners. He offered in support of his motion an affidavit made in 1982 by one Cosby, a prosecution witness whose trial testimony had placed defendant at the scene of the crime and who had prior to trial identified defendant from a photographic array. In the affidavit Cosby stated that his prior testimony had been false and that he had selected defendant's photo not because he recognized defendant but because he had acceded to the urging of a codefendant to select the photo bearing an "X", which was defendant's photo. At the Wade hearing in 1977 and in an affidavit made contemporaneously, Cosby had set forth the details of this photo identification and had specifically stated that no suggestions were made to him concerning which photo to select and that he had placed an "X" on the back of the one he selected; thus, his entire 1982 affidavit, including that part concerning the photo array, constitutes recantation of his prior testimony. Noting that "[t]here is no form of proof so unreliable as recanting testimony" ( People v Shilitano, 218 N.Y. 161, 170), we agree with County Court that under all the circumstances here, Cosby's recanted evidence is not "credible" ( People v. Osorio, 108 Misc.2d 100, 105, revd on other grounds 86 A.D.2d 233) or "of such a character and weight as to justify * * * setting aside the judgment" ( People v Shilitano, supra, p 171). Accordingly it was a proper exercise of the court's discretion to deny the motion without a hearing. That a portion of the recanted affidavit alleges misconduct by police and prosecution (see CPL 440.10, subd 1, par [f]) does not alter its nature as recanted evidence, which we reject as incredible.