Opinion
2012-11-16
The PEOPLE of the State of New York, Respondent, v. Johnnie LANE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve Of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve Of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from an order that denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment convicting him upon a jury verdict of, inter alia, three counts of murder in the second degree (Penal Law § 125.25[1], [3] ), and one count each of manslaughter in the first degree (§ 125.20) and attempted murder in the second degree (§§ 110.00, 125.25[1] ). On defendant's direct appeal, we modified the judgment by directing that the sentences imposed on certain counts run concurrently, but we otherwise affirmed the judgment ( People v. Lane, 221 A.D.2d 948, 635 N.Y.S.2d 573,lv. denied87 N.Y.2d 975, 642 N.Y.S.2d 204, 664 N.E.2d 1267,cert. denied519 U.S. 829, 117 S.Ct. 94, 136 L.Ed.2d 50). Here, we conclude that Supreme Court properly denied defendant's motionpursuant to CPL 440.10. In support of the motion, defendant presented the sworn written recantation of a trial witness who stated that, contrary to his testimony at trial, defendant never made any admissions to him about participating in the crimes at issue. Instead, the witness claimed to have heard a secondhand account of defendant's involvement in those crimes. The witness also asserted that the Erie County District Attorney's office paid him $2,500 to testify falsely that he heard about defendant's participation firsthand.
“There is no form of proof so unreliable as recanting testimony” ( People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733,rearg. denied218 N.Y. 702, 113 N.E. 1064), and such testimony is “insufficient alone to warrant vacating a judgment of conviction” ( People v. Thibodeau, 267 A.D.2d 952, 953, 700 N.Y.S.2d 621,lv. denied95 N.Y.2d 805, 711 N.Y.S.2d 173, 733 N.E.2d 245). “Consideration of recantation evidence involves the following factors: (1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” ( People v. Wong, 11 A.D.3d 724, 725–726, 784 N.Y.S.2d 158). Other relevant factors, however, are whether the recantation refutes the eyewitness testimony of another witness ( see People v. Davenport, 233 A.D.2d 771, 773, 650 N.Y.S.2d 418,lv. denied89 N.Y.2d 1091, 660 N.Y.S.2d 384, 682 N.E.2d 985;see also People v. Avery, 80 A.D.3d 982, 985, 915 N.Y.S.2d 356,lv. denied17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094), whether the accusations in the recantation “were highly improbable and were specifically denied by the former prosecutor” ( People v. Cintron, 306 A.D.2d 151, 152, 763 N.Y.S.2d 11,lv. denied100 N.Y.2d 641, 769 N.Y.S.2d 207, 801 N.E.2d 428), and whether the allegedly false testimony at trial prejudiced defendant ( see People v. Friedgood, 58 N.Y.2d 467, 471–472, 462 N.Y.S.2d 406, 448 N.E.2d 1317;People v. Stevens, 275 A.D.2d 902, 902, 713 N.Y.S.2d 606,lv. denied96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87;Thibodeau, 267 A.D.2d at 953, 700 N.Y.S.2d 621;People v. Cutting, 210 A.D.2d 791, 792–793, 621 N.Y.S.2d 149,lv. denied85 N.Y.2d 971, 629 N.Y.S.2d 731, 653 N.E.2d 627).
Coupled with abundant eyewitness testimony at trial placing defendant at the scene of the crimes, there was the trial testimony of multiple friends of defendant, not merely the witness at issue, stating that defendant bragged to them about committing the crimes. In addition, evidence presented at trial established that shell casings and bullets were recovered that matched the gun found in defendant's home; defendant gave a written statement to the police attesting to his involvement in the crimes; and two witnesses came forward and told the police that defendant was involved in the crimes, before the police even suspected defendant's involvement. Therefore, the conviction was not affected by the allegedly false testimony. Finally, defendant's motion was properly denied on the additional ground that he failed to set forth a reason for delaying filing his CPL 440.10 motion with the information regarding the allegedly false testimony. Due diligence in uncovering an error is required, and any unjustifiable delay is inexcusable (see CPL 440.10[3][a] ). Defendant has provided no reason for the 14–year delay in bringing the allegedly false testimony to the court's attention.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.