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Justice Goldstein

DEFENDANT WAS convicted of second-degree murder, second-degree weapons possession and second-degree assault, based on consolidated indictments for second-degree assault in a stabbing and the second-degree murder of a witness to the stabbing. In his fourth post-judgment motion to vacate his conviction, defendant claimed that a rebuttal witness at a prior hearing pursuant to Criminal Procedure Law §440 falsely testified against him. He also alleged that a prosecution witness at his 1993 trial was a “professional witness” for the state who was “out to court” on Sept. 19, 2002 and March 13, 2004. The court denied defendant’s vacatur motion. It found that the rebuttal witness’ testimony was recanted and that the recantation was subsequently recanted and submitted by the district attorney. It also noted that the dates on which the “professional witness” was “out to court” were more than nine years after defendant’s trial.

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