Opinion
October 1, 1984
Appeal from the Supreme Court, Kings County (Pincus, J.).
Judgment affirmed.
The evidence at trial, if credited by the jury, was sufficient to sustain the verdict. Furthermore, we find no error in the trial court's denial, without a hearing, of defendant's posttrial motion pursuant to CPL 330.40 to set aside the verdict. A motion to set aside the verdict on the ground of newly discovered evidence may be denied without a hearing if "[t]he moving papers do not contain sworn allegations of all facts essential to support the motion" (CPL 330.40, subd. 2, par [e], cl [i]). Here, the supporting affidavit simply stated that one "Stanley", who had been characterized in the testimony at trial as a "lookout", was the one who stabbed the victim, and not defendant. Since the affiant failed to allege that defendant and the codefendant Melendez were not present at the stabbing, his statement does not affect defendant's criminal liability for felony murder.
We have considered defendant's remaining contention and find it to be without merit. Mollen, P.J., Mangano, O'Connor and Lawrence, JJ., concur.