Opinion
February 25, 1985
Appeal from the Supreme Court, Kings County (Owens, J.).
Order reversed, on the law and the facts, motion to set aside the verdict denied, verdict reinstated as against defendant, and case remitted to Criminal Term for the imposition of sentence.
When a defendant makes a motion to set aside a verdict pursuant to CPL 330.30 (3) on the ground of newly discovered evidence, the burden is upon him "to prove, by a fair preponderance of the credible evidence (CPL 330.40, subd 2, par [g]): (1) that the new evidence had been discovered since the trial; (2) that it could not have been produced by [defendant] at trial even with due diligence; and (3) that it was of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to [defendant]" ( People v Santiago, 88 A.D.2d 665, citing CPL 330.3 [3]; People v Salemi, 309 N.Y. 208, 215-216; People v Balan, 107 A.D.2d 811).
The evidence at issue on this appeal was discovered by defendant prior to the trial and could have been produced at trial had defendant exercised due diligence. Furthermore, the evidence which defendant presented is consistent with complainant's testimony on the same issue, and does not exculpate defendant in any way. Accordingly, the order should be reversed and the motion to set aside the verdict denied. Titone, J.P., O'Connor, Lawrence and Eiber, JJ., concur.