Summary
In People v Lavrick (146 A.D.2d 648, Second Dept., 1989), the court affirmed the denial of defendant's CPL 440 motion based on an affidavit from the victim of a sexual assault in which he recanted his identification of the defendant as the perpetrator.
Summary of this case from People v. GraziosaOpinion
January 17, 1989
Appeal from the County Court, Suffolk County (Seidell, J., Stark, J.).
Ordered that the order is affirmed.
In 1968 the defendant was convicted by a jury of sexually molesting a 10-year-old boy. Although the defendant testified at trial that he was not the person who had committed the offense, he acknowledged during a presentence interview with a probation officer that "he occasionally gets `unusual desires' and this is what happened in the instant offense". He blamed these desires and abnormalities on his alcoholic mother. Eighteen years later, the defendant moved pursuant to CPL 440.10 (1) (g) to vacate the judgment of conviction on the ground of newly discovered evidence, consisting primarily of an affidavit procured from the victim recanting that portion of his prior testimony identifying the defendant as the perpetrator.
The defendant's motion was properly denied. There are six requirements which must be met in order to establish that evidence is newly discovered within the meaning of CPL 440.10 (1) (g): "`1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence'" (People v Salemi, 309 N.Y. 208, 216, quoting People v Priori, 164 N.Y. 459, 472).
In view of the strong and persuasive evidence of guilt presented at the defendant's trial, we do not believe that the victim's partial recantation, which, in any event, merely impeaches his prior testimony, would change the result were a new trial to be granted. Mollen, P.J., Bracken, Sullivan and Harwood, JJ., concur.