People v. Gates

189 A.D.2d 934, 592 N.Y.S.2d 284, 1993 N.Y. App. Div. LEXIS 108

Opinion

Appeal, by permission, from an order of the County Court of Columbia County (Leaman, J.), entered January 20, 1992, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of conspiracy in the second degree, without a hearing.

County Court did not err in denying defendant’s CPL 440.10 motion without a hearing. Defendant contends that his motion should be granted on the basis of newly discovered evidence of prosecutorial misconduct in failing to disclose what he characterizes as exculpatory material. Much of the evidence upon which defendant relies was made available to him during the course of his trial and appears in the record. The record thus conclusively refutes certain of defendant’s contentions premised upon nondisclosure by the People (see, CPL 440.30 [4] [c]). More importantly, issues based upon this evidence were not raised by defendant on his direct appeal and were properly rejected by County Court (see, CPL 440.10 [2] [c]; People v Miller, 161 AD2d 956). As to any related issues which might be found not to have been directly raised in the record, we find that sufficient information was elicited during the trial to yield their discovery with due diligence prior to sentencing (see, People v Friedgood, 58 NY2d 467). Defendant’s further argument that the police conspired to conceal certain evidence and manufactured an alibi for one witness is unsupported by the record and similarly without merit (see, People v Brown, 56 NY2d 242, 246-247; People v Britt, 148 AD2d 911).

Mikoll, J. P., Yesawich Jr., Crew III, Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed.