        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1195
KA 09-00927
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Erie County (M. William Boller, A.J.), dated April
8, 2009. The order denied the motion of defendant to vacate his
conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     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 AD2d 948, lv
denied 87 NY2d 975, cert denied 519 US 829). Here, we conclude that
Supreme Court properly denied defendant’s motion pursuant 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 NY 161, 170, rearg denied 218 NY 702), and
such testimony is “insufficient alone to warrant vacating a judgment
                                 -2-                          1195
                                                         KA 09-00927

of conviction” (People v Thibodeau, 267 AD2d 952, 953, lv denied 95
NY2d 805). “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 AD3d 724, 725-726). Other relevant
factors, however, are whether the recantation refutes the eyewitness
testimony of another witness (see People v Davenport, 233 AD2d 771,
773, lv denied 89 NY2d 1091; see also People v Avery, 80 AD3d 982,
985, lv denied 17 NY3d 791), whether the accusations in the
recantation “were highly improbable and were specifically denied by
the former prosecutor” (People v Cintron, 306 AD2d 151, 152, lv denied
100 NY2d 641), and whether the allegedly false testimony at trial
prejudiced defendant (see People v Friedgood, 58 NY2d 467, 471-472;
People v Stevens, 275 AD2d 902, 902, lv denied 96 NY2d 807; Thibodeau,
267 AD2d at 953; People v Cutting, 210 AD2d 791, 792-793, lv denied 85
NY2d 971).

     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.




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
