People v. Turner

215 A.D.2d 703, 628 N.Y.S.2d 122, 1995 N.Y. App. Div. LEXIS 5439

Opinion

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Sherman, J.), dated November 15, 1993, which denied, without a hearing, his motion pursuant to CPL 440.10, to vacate a judgment of the same court, rendered October 21, 1988, convicting him of robbery in the first degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

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 "[tjhere is no form of proof so unreliable as recanting testimony” (People v Shilitano, 218 NY 161, 170). Under the circumstances of this case the court correctly found that the witness’s recantation was incredible (see, People v Rodriguez, 201 AD2d 683; People v Donald, 107 AD2d 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 NY 208, 215-216, cert denied 350 US 950; People v Lavrick, 146 AD2d 648, Iv denied 73 NY2d 979, cert denied 493 US 1029), and therefore the court properly denied the defendant’s motion without a hearing. Mangano, P. J., Sullivan, Thompson and Hart, JJ., concur.