People v. Rossney

186 A.D.2d 926, 589 N.Y.S.2d 381, 1992 N.Y. App. Div. LEXIS 12412

Opinion

— Appeal, by permission, from an order of the County Court of Columbia County (Zittell, J.), entered August 20, 1991, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of conspiracy in the second degree and criminal facilitation in the second degree, without a hearing.

County Court properly denied defendant’s CPL 440.10 motion without a hearing. Defendant argues that County Court had no jurisdiction to amend its order erroneously dismissing the ninth count of the indictment against defendant. This issue was raised and decided on defendant’s direct appeal to this court and, accordingly, may not form the basis for a posttrial motion (see, CPL 440.10 [2] [a]; People v Skinner, 154 AD2d 216, lv denied 76 NY2d 796). As to defendant’s argument based upon newly discovered evidence of prosecutorial misconduct in failing to disclose what defendant characterizes as exculpatory material, we find that transcripts and evidence pertaining to the trial of defendant’s codefendant and other documents made available to defendant before his trial contained that evidence or sufficient information to allow its discovery with due diligence (see, People v Friedgood, 58 NY2d 467; cf., People v Nuness, 151 AD2d 987, lv denied 74 NY2d 816). Finally, defendant’s contention that police officers conspired to concoct an alibi for one witness and conceal certain evidence from the People is purely speculative and unsupported by the record (see, People v Brown, 56 NY2d 242, 246-247; People v Britt, 148 AD2d 911).

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