Opinion
(1755) KA 00-02419
December 21, 2001.
(Appeal from Order of Oneida County Court, Donalty, J. — CPL art 440.)
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS AND LAWTON, JJ.
Order unanimously affirmed. Memorandum:
County Court properly denied without a hearing that part of defendant's motion seeking to vacate the judgment of conviction on the ground of newly discovered evidence ( see, CPL 440.10 [g]), consisting of an affidavit of a prosecution witness recanting her trial testimony ( see, People v. Dukes, 106 A.D.2d 906, 907; see also, People v. Jackson, 238 A.D.2d 877, 878, lv denied 90 N.Y.2d 859). The court also properly denied that part of defendant's motion seeking to vacate the judgment of conviction on the ground that the trial testimony of the recanting witness was the product of threats and coercion by the prosecutor ( see, CPL 440.10 [h]). The evidence presented at the hearing on that part of the motion is insufficient to warrant vacatur of the judgment of conviction ( see, People v. Blake, 219 A.D.2d 730, 731, lv denied 88 N.Y.2d 980, 1067).