People v. Turner

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 [704] motion without a hearing. Mangano, P. J., Sullivan, Thompson and Hart, JJ., concur.