Opinion
June 29, 1992
Appeal from the Supreme Court, Queens County (Calabretta, J.).
Ordered that the order is affirmed.
The facts underlying this case are set forth in our decision and order affirming the defendant's conviction. Upon appeal, the defendant's challenge to the quantity and quality of the evidence against him was rejected (see, People v. Milea, 112 A.D.2d 1011). However, the defendant's codefendant's conviction was reversed by this court, because, as to the codefendant, the proof was insufficient (see, People v. Nieves, 135 A.D.2d 579). Relying on a post-reversal affidavit of the codefendant, who now attests that the crimes were committed by two men whom no trial witness placed at the scene, the defendant seeks to vacate his conviction on the ground of "newly discovered" evidence (see, CPL 440.10 [g]). We need not determine however, whether previously "unavailable" testimony of a former codefendant can constitute newly discovered evidence (see, e.g., United States v. Diggs, 649 F.2d 731, cert denied 454 U.S. 970; United States v. Metz, 652 F.2d 478). We agree with the Supreme Court that the evidence on which the defendant now relies contradicts some of the trial evidence but would not "probably change the result" (People v Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950). Sullivan, J.P., Harwood, Balletta and Eiber, JJ., concur.