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
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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