People v. Cabrera

1 A.D.2d 375, 766 N.Y.S.2d 586

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered April 1, 2002, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

In order for a defendant to prevail on a CPL 330.30 motion for a new trial based upon newly-discovered evidence, it must appear, inter alia, that the newly-discovered evidence is of such a nature that a different verdict would probably occur, and such proof must not be cumulative or merely impeach or contradict evidence introduced at the trial (see People v Salemi, 309 NY 208, 216 [1955], cert denied 350 US 950 [1956]; People v Serrata, 261 AD2d 490 [1999]). Here, contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in denying the defendant’s motion, without a hearing, since the evidence preferred would serve only to impeach or contradict evidence adduced at trial (see People v Salemi, supra; People v Serrata, supra).

The defendant’s remaining contentions are without merit. Smith, J.E, Crane, Mastro and Rivera, JJ., concur.