People v. Mullen

Appellate Division of the Supreme Court of New York

People v. Mullen

160 A.D.2d 897, 554 N.Y.S.2d 329, 1990 N.Y. App. Div. LEXIS 4590

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 16, 1990

StatusPublished

Cited by1 cases

This text of 160 A.D.2d 897 (People v. Mullen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mullen, 160 A.D.2d 897, 554 N.Y.S.2d 329, 1990 N.Y. App. Div. LEXIS 4590 (N.Y. Ct. App. 1990).

Pincite

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered November 25, 1986, convicting him of murder in the second degree, assault in the first degree, robbery in the first degree, and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant asserts that the court erred in denying his motion pursuant to CPL 330.30 to set aside the verdict on the ground of newly discovered evidence. We disagree.

The defendant’s claim is premised upon certain information contained in a hospital report. The report, however, was in existence prior to trial and the defendant has not shown that it could not have been discovered with "due diligence” (see, People v Moore, 147 AD2d 924; People v Holmes, 127 AD2d 993). Moreover, the defendant has not demonstrated that the [898]*898so-called "new evidence” would probably lead to a different result at a retrial (see, People v Mendez, 147 AD2d 712). Accordingly, the motion was properly denied (People v Moore, supra; People v Penoyer, 135 AD2d 42, 44, affd 72 NY2d 936; People v Panzarino, 131 AD2d 788).

The defendant also claims that the court incorrectly charged the jury with respect to those felonies which could be considered as a predicate under the felony murder count. Although the court’s charge may have been slightly confusing, the jury’s finding the defendant guilty of each of the underlying felonies charged rendered any error in this regard harmless (People v Crimmins, 36 NY2d 230, 241-242).

We have considered the defendant’s remaining contentions and find that they are either unpreserved for appellate review or without merit. Lawrence, J. P., Kunzeman, Rosenblatt and Miller, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered November 25, 1986, convicting him of murder in the second degree, assault in the first degree, robbery in the first degree, and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant asserts that the court erred in denying his motion pursuant to CPL 330.30 to set aside the verdict on the ground of newly discovered evidence. We disagree.

The defendant’s claim is premised upon certain information contained in a hospital report. The report, however, was in existence prior to trial and the defendant has not shown that it could not have been discovered with "due diligence” (see, People v Moore, 147 AD2d 924; People v Holmes, 127 AD2d 993). Moreover, the defendant has not demonstrated that the [898]*898so-called "new evidence” would probably lead to a different result at a retrial (see, People v Mendez, 147 AD2d 712). Accordingly, the motion was properly denied (People v Moore, supra; People v Penoyer, 135 AD2d 42, 44, affd 72 NY2d 936; People v Panzarino, 131 AD2d 788).

The defendant also claims that the court incorrectly charged the jury with respect to those felonies which could be considered as a predicate under the felony murder count. Although the court’s charge may have been slightly confusing, the jury’s finding the defendant guilty of each of the underlying felonies charged rendered any error in this regard harmless (People v Crimmins, 36 NY2d 230, 241-242).

We have considered the defendant’s remaining contentions and find that they are either unpreserved for appellate review or without merit. Lawrence, J. P., Kunzeman, Rosenblatt and Miller, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

160 A.D.2d 897, 554 N.Y.S.2d 329, 1990 N.Y. App. Div. LEXIS 4590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mullen-nyappdiv-1990.

Opinion

Related

Cite This Page — Counsel Stack