Opinion
February 22, 1994
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the order is affirmed.
The defendant contends that his conviction should be vacated because the People failed to provide him with certain notes of a police witness, Gerard Walsh. We disagree.
The defendant was aware of the existence of the notes in question at the time of trial. Therefore, he could have created a sufficient record to enable him to raise this issue on direct appeal, and he could have raised this issue on his direct appeal (see, People v. Rodriguez, 114 A.D.2d 525). Thus, this branch of the defendant's CPL 440.10 motion was properly denied without a hearing (see, People v. Cooks, 67 N.Y.2d 100; People v. Skinner, 154 A.D.2d 216; CPL 440.10 [c]; [3] [a]). In any event, the defendant has failed to demonstrate any prejudice from the alleged failure to receive Walsh's notes (see, People v Vilardi, 76 N.Y.2d 67; People v. Jackson, 78 N.Y.2d 638).
The defendant also 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. "There is no form of proof so unreliable as recanting testimony" (People v. Shilitano, 218 N.Y. 161, 170). Here, the witness's recantation is entirely incredible, and denial of this branch of the defendant's motion without a hearing was also proper (see, People v. Donald, 107 A.D.2d 818, 819; People v Dukes, 106 A.D.2d 906, 907). That the affidavit also alleges misconduct by the police and prosecution does not alter its nature, i.e., recanted evidence which is incredible (see, People v. Dukes, supra, at 907; People v. Allison, 119 A.D.2d 1005).
Finally, the defendant contends that the evidence is insufficient to support his conviction. This issue, raised for the first time on this appeal from the denial of the defendant's CPL article 440 motion, is not properly before this Court (People v Cooks, 67 N.Y.2d 100, supra; People v. Skinner, 154 A.D.2d 216, supra; CPL 440.10 [c]). Balletta, J.P., Pizzuto, Friedmann and Krausman, JJ., concur.