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

1049
KA 09-02531
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN A. HOWINGTON, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
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 Onondaga County Court (Joseph E. Fahey, J.), entered October 30,
2009. The order denied the motion of defendant to vacate a judgment
of 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 denying his motion
to vacate the judgment convicting him of, inter alia, robbery in the
first degree (Penal Law § 160.15 [4]) on the grounds that material
evidence at trial was false and was known by the prosecutor to be
false, there was prosecutorial misconduct, and there is newly
discovered evidence (see CPL 440.10 [1] [c], [f], [g]). Contrary to
defendant’s contention, County Court did not err in denying his motion
without conducting a hearing inasmuch as defendant’s motion papers did
“not contain sworn allegations substantiating or tending to
substantiate all the essential facts” of defendant’s claims (CPL
440.30 [4] [b]; see People v Vigliotti, 24 AD3d 1216, 1216). The
recantation affidavit of a prosecution witness submitted by defendant
in support of the motion does not establish that the prosecutor knew
or should have known that his trial testimony was false (see CPL
440.10 [1] [c]; People v Lent, 204 AD2d 855, 855, lv denied 84 NY2d
869). Similarly, defendant failed to submit evidence supporting his
contention that the prosecutor engaged in improper and prejudicial
conduct within the meaning of CPL 440.10 (1) (f), i.e., “[i]mproper
and prejudicial conduct not appearing in the record [that] occurred
during a trial resulting in the judgment” that would have required
reversal “if it had appeared in the record” (CPL 440.10 [1] [f]). As
noted, the recantation affidavit does not establish that the
prosecutor knew or should have known that the trial testimony was
                                 -2-                          1049
                                                         KA 09-02531

false, and thus defendant failed to establish that the prosecutor
engaged in improper conduct. Moreover, a claim of such misconduct
also requires a showing of prejudice (see generally People v Jackson,
78 NY2d 638, 646-647), and there is no indication that defendant was
prejudiced by the alleged improper conduct. Furthermore, the
recantation affidavit does not qualify as newly discovered evidence
pursuant to CPL 440.10 (1) (g) because the issues raised in the
affidavit would merely impeach or contradict the trial testimony of
the prosecution witness, and the new evidence therefore is not “of
such character as to create a probability that . . . the verdict would
have been more favorable to the defendant” had the evidence been
introduced (id.; see People v Miles, 136 AD2d 958, 959, lv denied 71
NY2d 971).

     Finally, we do not address defendant’s contention that he was
denied effective assistance of appellate counsel on his direct appeal,
raised in the context of this CPL article 440 motion. The proper
vehicle for raising that contention “is by way of a motion for a writ
of error coram nobis” (People v Smith, 78 AD3d 1583, 1584) or, when
the record is adequate, that contention may be raised, pro se, on
direct appeal (see People v McKinney, 302 AD2d 993, 995).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
