People v. Drake

256 A.D.2d 1159, 684 N.Y.S.2d 102, 1998 N.Y. App. Div. LEXIS 14287

Opinion

—Order unanimously affirmed. Memorandum: County Court properly denied the motion of defendant pursuant to CPL 440.10 to vacate the judgment convicting him of two counts of murder in the second degree. In support of the motion, defendant presented evidence that the People’s expert witness at trial gave false testimony regarding his credentials. While that evidence “might have affected the jury’s assessment of his credibility, there is nothing in the record indicating that the prosecution was aware, or should be charged with knowledge that he was misrepresenting his credentials” (People v Irvin, 180 AD2d 753, 754, lv denied 79 NY2d 1002). Thus, vacatur is not warranted under CPL 440.10 (1) (c). Further, there is no reasonable probability that the verdict would have been different had the evidence been available to defendant and used by him to impeach the expert (see, People v Vasquez, 214 AD2d 93, 101-102, lv denied 88 NY2d 943).

We have reviewed defendant’s remaining contentions, including those raised in the pro se supplemental brief, and conclude that they are without merit. (Appeal from Order of Niagara County Court, Fricano, J. — CPL art 440.) Present — Denman, P. J., Green, Hayes, Balio and Boehm, JJ.