OPINION OF THE COURT
On July 15, 1985, during the course of a robbery of a food concession stand at Rockaway Playland, Queens, Regina Carter, an employee, was killed by a single shot from a 12-gouge shotgun. Some six months later, defendant was arrested for the murder/robbery. The arrest was based upon the written statements of four police informants, friends or acquaintances of defendant, regarding conversations in which he made oral admissions to having killed Carter. The informants were Michael Washington, Sammy Youmans, Sheila McKinney and *211 Tanya Alston. Washington and Youmans were in custody in the same police lockup cell, on unrelated robbery charges, at the time they gave their statements. McKinney had open juvenile cases then pending for robbery and assault.
Of the four informants, only Washington and McKinney testified at defendant’s trial and, undisputedly, their testimony was the principal evidence of defendant’s guilt. Defendant was found guilty of three counts of second degree murder, two counts of robbery in the first degree and two counts of burglary in the second degree. Some three years and two months after the imposition of judgment and sentence upon defendant, he brought the instant application, pursuant to CPL 440.10 to vacate his conviction on three grounds, only two of which are at issue here: (1) newly discovered evidence (see, CPL 440.10 [1] [g]); and (2) the prosecution’s failure to disclose exculpatory evidence in violation of defendant’s State and Federal constitutional rights to due process (see, CPL 440.10 [1] [h]).
The newly discovered evidence primarily consisted of the sworn statements of Washington and McKinney recanting their testimony at defendant’s trial. McKinney’s recantation comprised a single sentence in which she denied ever hearing defendant say he killed Regina Carter. However, she stood by her testimony of having seen defendant with a shotgun several months after the murder. Washington also denied that defendant confessed the murder to him and averred that his testimony at defendant’s trial had been false. He explained that he gave the statement and testimony against defendant because he was under charges and "believed that it was in my best interest to cooperate with the District Attorney’s office”.
In support of defendant’s alternative ground for vacating the conviction, based upon the failure of the People to disclose exculpatory evidence as a denial of due process under
Brady v Maryland
(
The principal affidavit in opposition to defendant’s motion was by the Assistant District Attorney appearing on defendant’s motion, not the trial assistant who prosecuted defendant. The affidavit was based upon information and belief, the source of which was a review of the District Attorney’s file on the case and a discussion with the trial prosecutor. In that discussion, the trial prosecutor confirmed only that Youmans had recanted his statement before the trial began, and explained that the recantation, which he believed was perjurious, was the reason he chose not to call Youmans as a witness.
Supreme Court denied defendant’s CPL 440.10 application without a hearing. The Appellate Division affirmed the judgment of conviction and sentence, and the denial of defendant’s 440.10 motion (
As to defendant’s appeal from the denial of that portion of his motion to vacate the judgment of conviction on the basis of newly discovered evidence, we note that the Washington and McKinney recantations do not aver that their prior statements or testimony against defendant were the products of police or prosecutorial misconduct. Thus, that portion of defendant’s motion does not fall within any exception to the general rule that the power to vacate a criminal conviction and grant a new trial for newly discovered evidence rests within the unlimited discretion of the lower courts and is, thus, beyond review by this Court
(see, People v Brown, 56
NY2d 242, 246;
People v Crimmins,
Contrariwise, insofar as defendant seeks postjudgment relief under CPL 440.10 (1) (h), alleging that his conviction was procured in violation of his due process right to pretrial disclosure of
Brady
material, such a due process claim was subject to postjudgment judicial review via a writ of error
*213
coram nobis before the enactment of CPL article 440
(see, People v Silverman,
As previously described, the Youmans affidavit can be read as averring that, just before he was slated to testify against defendant at the trial, he informed the prosecutor that both he and Washington had been induced to falsely accuse defendant of the murder of Carter at the Rockaway Playland and that he further informed the prosecutor that defendant never told him "or to my knowledge, Michael Washington” that he had killed Carter.
Youmans’ own recantation of his pretrial statements to the prosecutor before the trial cannot in and of itself be deemed
Brady
material because he was never called as a witness to testify at defendant’s trial (or indeed at the pretrial hearings). Defendant has not demonstrated on these facts that this nontestifying person’s denial that defendant ever confessed to him would have been exculpatory, i.e., favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses
(see, People v Novoa,
Youmans’ averments impeaching Washington’s trial testimony were surely
not
insufficient as a matter of law to establish a
Brady
violation
(see,
CPL 440.30 [4] [a], [b];
cf., People v Brown,
Conversely, the People’s papers in opposition clearly did not concede the truth of Youmans’ averments that he had given evidence to the prosecutor before trial that would have impeached Washington’s testimony, and his averments are not "conclusively substantiated by unquestionable documentary proof’ (CPL 440.30 [3] [c]). Thus, Supreme Court was not compelled to grant defendant’s motion to vacate the judgment of conviction without a hearing, and indeed a hearing should have been directed (CPL 440.30 [5]).
Consequently, the order of the Appellate Division should be modified by remitting the case to Supreme Court for an evidentiary hearing on defendant’s CPL 440.10 motion. At such a hearing the court must determine first, whether, in fact, Youmans communicated
Brady
material which was not disclosed to the defense. If so, there having been only a general request for
Brady
material, the hearing court must determine in the first instance whether, in the context of the entire trial, the omitted evidence creates a reasonable doubt that did not otherwise exist
(see, United States v Agurs,
Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court for further *215 proceedings in accordance with this opinion and, as so modified, affirmed.
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.
Order modified and case remitted to Supreme Court, etc.