Summary
In People v Turner (215 A.D.2d 703, Second Dept., 1995), the court affirmed the denial, without a hearing, of defendant's CPL 440 motion based on an affidavit from the People's main witness in which he recanted his trial testimony.
Summary of this case from People v. GraziosaOpinion
May 22, 1995
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the order is affirmed.
The defendant contends that he is entitled to vacatur of his conviction, or to a hearing, based on the affidavit of the prosecution's main witness, who has now recanted his trial testimony. It is well settled that "[t]here is no form of proof so unreliable as recanting testimony" (People v Shilitano, 218 N.Y. 161, 170). Under the circumstances of this case the court correctly found that the witness's recantation was incredible (see, People v Rodriguez, 201 A.D.2d 683; People v Donald, 107 A.D.2d 818). The witness's recantation, which merely impeaches his prior testimony, probably would not change the result if a new trial were granted (see, People v Salemi, 309 N.Y. 208, 215-216, cert denied 350 U.S. 950; People v Lavrick, 146 A.D.2d 648, lv denied 73 N.Y.2d 979, cert denied 493 U.S. 1029), and therefore the court properly denied the defendant's motion without a hearing. Mangano, P.J., Sullivan, Thompson and Hart, JJ., concur.