Opinion
June 22, 1990
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Dillon, P.J., Callahan, Green, Davis and Lowery, JJ.
Order unanimously affirmed. Memorandum: Supreme Court properly denied defendant's CPL 440.10 motion to vacate his judgment of conviction. Defendant alleged that the prosecutor discriminatorily exercised his peremptory challenges during voir dire (see, Batson v Kentucky, 476 U.S. 79; People v. Scott, 70 N.Y.2d 420). Defendant should have raised the issue on direct appeal because the record was sufficient to permit review (see, CPL 440.10 [b]; People v. Cooks, 67 N.Y.2d 100, 103-104). The court properly denied defendant's motion for a new trial based on the ground of newly discovered evidence (CPL 440.10 [g]) because the memorandum on which defendant relies could have been discovered by due diligence prior to trial and would not have been likely to change the result of the trial in any event (see, People v Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950).