People v. Powell

96 A.D.2d 610, 464 N.Y.S.2d 611, 1983 N.Y. App. Div. LEXIS 19152

Opinion

— Appeal, by permission, from an order of the County Court of Tompkins County (Barrett, J.), entered July 14, 1982, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting her of the crime of murder in the second degree, after a hearing. Defendant was convicted in 1979 of murder in the second degree in the death of her husband. We affirmed in People v Powell (83 AD2d 719), wherein the pertinent facts are recited. Defendant has moved, pursuant to CPL 440.10 (subd 1, par [g]), to vacate the judgment of conviction on the basis of newly discovered evidence. County Court denied the motion after a hearing and we granted permission to appeal. Since the newly discovered evidence is merely contradictory and impeaching of testimony presented at the trial, and since the evidence is not of such a character that it is probable the jury would have returned a verdict more favorable to defendant, we affirm County Court’s denial of defendant’s motion (see People v Salemi, 309 NY 208, 216; People v Wagner, 51 AD2d 186, 188-189). Order affirmed. Mahoney, P. J., Kane, Main, Casey and Mikoll, JJ., concur.