People v. Beckett

162 A.D.2d 1000, 559 N.Y.S.2d 200, 1990 N.Y. App. Div. LEXIS 9758

Opinion

Order unanimously affirmed. Memorandum: Supreme Court properly denied defendant’s CPL 440.10 motion to vacate his judgment of conviction. Defendant alleged that the prosecutor discriminatorily exercised his peremptory challenges during voir dire (see, Batson v Kentucky, 476 US 79; People v Scott, 70 NY2d 420). Defendant should have raised the issue on direct appeal because the record was sufficient to permit review (see, CPL 440.10 [2] [b]; People v Cooks, 67 NY2d 100, 103-104). The court properly denied defendant’s motion for a new trial based on the ground of newly discovered evidence (CPL 440.10 [1] [g]) because the memorandum on which defendant relies could have been discovered by due diligence prior to trial and would not have been likely to change the result of the trial in any event (see, People v Salemi, 309 NY 208, 216, cert denied 350 US 950). (Appeal from order of Supreme Court, Monroe County, Mark, J.—CPL art 440.) Present—Dillon, P. J., Callahan, Green, Davis and Lowery, JJ.