Opinion
2002-03367
Argued September 26, 2003.
November 3, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered April 1, 2002, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.
Laura R. Johnson, New York, N.Y. (Robert Budner of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus of counsel), for respondent.
Before: NANCY E. SMITH, J.P., STEPHEN G. CRANE, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
In order for a defendant to prevail on a CPL 330.30 motion for a new trial based upon newly-discovered evidence, it must appear, inter alia, that the newly-discovered evidence is of such a nature that a different verdict would probably occur, and such proof must not be cumulative or merely impeach or contradict evidence introduced at the trial ( see People v. Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950; People v. Serrata, 261 A.D.2d 490). Here, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying the defendant's motion, without a hearing, since the evidence proferred would serve only to impeach or contradict evidence adduced at trial ( see People v. Salemi, supra; People v. Serrata, supra).
The defendant's remaining contentions are without merit.
SMITH, J.P., CRANE, MASTRO and RIVERA, JJ., concur.