People v. Legette
| Citation | 153 A.D.2d 760,545 N.Y.S.2d 296 |
| Parties | The PEOPLE, etc., Respondent, v. James LEGETTE, Appellant. |
| Decision Date | 28 August 1989 |
| Court | New York Supreme Court — Appellate Division |
John F. Middlemiss, Jr., Ronkonkoma (Judith M. Gordon, of counsel), for appellant.
Patrick Henry, Dist. Atty., Riverhead (Glenn Green, of counsel), for respondent.
Before KOOPER, J.P., and SPATT, HARWOOD and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant (1) from a judgment of the Supreme Court, Suffolk County (McInerney, J.), rendered February 13, 1987, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court, dated February 23, 1988, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.
ORDERED that the judgment and the order are affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of the crimes charged beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5].
Contrary to the defendant's contentions, the Supreme Court, after conducting a full evidentiary hearing, properly denied his motion pursuant to CPL 440.10 to set aside the jury verdict. The record discloses that the evidence adduced at the hearing consisted principally of a prior recantation made by a civilian informant who, together with two police officers, had identified the defendant at trial. Such evidence was properly rejected by the Supreme Court as insufficient to warrant vacatur of the verdict. It has been held that in order to constitute newly discovered evidence warranting a new trial, the evidence proffered must, inter alia, do more than merely impeach or contradict the former evidence (see, People v. Salemi, 309 N.Y. 208, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827; People v. Clerkin, 144 A.D.2d 684, 685, 535 N.Y.S.2d 26; People v. Seneci, 133 A.D.2d 432, 519 N.Y.S.2d 416). Moreover, it has also been observed that "[r]ecantation evidence is inherently unreliable and is insufficient alone to require setting aside a conviction" (see, People v. Brown, 126 A.D.2d 898, 900, 510 N.Y.S.2d 932; People v. Allison, 119 A.D.2d 1005, 500 N.Y.S.2d 888). Guided by the foregoing principles, it is our view that neither the recantation evidence produced nor the...
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