Opinion
Decided July 11, 1989
Appeal from the Supreme Court, George F. Roberts, J.
Salvatore D. Ferlazzo for appellant. Robert M. Morgenthau, District Attorney (Julie Freudenheim of counsel), for respondent.
MEMORANDUM.
The order of Supreme Court should be affirmed.
Supreme Court acted within its discretion in denying defendant's motion to vacate his 1959 judgment of conviction without an evidentiary hearing. The merits of the "newly discovered evidence" issue raised in this collateral proceeding were previously decided on a prior CPL 440.10 motion (CPL 440.10[b]).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.