People v. Wallace

218 A.D.2d 718, 630 N.Y.S.2d 937, 1995 N.Y. App. Div. LEXIS 8700

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered January 13, 1993, convicting him of robbery in the second degree (two counts) and criminal impersonation in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, the Supreme Court did not improvidently deny his CPL 330.30 motion to set aside the verdict on the ground of newly-discovered evidence. The defendant failed to establish by a preponderance of the evidence that the allegedly newly-discovered evidence could not have been discovered before the trial by the exercise of due diligence and that this evidence would probably change the result if a new trial were granted (see, People v Mossop, 191 AD2d 715; People v Fielder, 154 AD2d 388).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). O’Brien, J. P., Joy, Goldstein and Florio, JJ., concur.