Opinion
August 22, 1994
Appeal from the Supreme Court, Queens County (Fisher, J.).
Ordered that the judgment is affirmed.
The sole issue raised on this appeal is the propriety of the denial, after a hearing, of the defendant's motion pursuant to CPL 330.30 (3) for a new trial on the ground of newly discovered evidence. Contrary to the defendant's contentions, the record supports the trial court's denial of the motion. The defendant has failed to establish by a preponderance of the evidence that the witnesses he offered in support of his motion could not have been discovered prior to the trial (see, People v. Priori, 164 N.Y. 459, 471-472; People v. Barrero, 137 A.D.2d 759), that the evidence was not cumulative (see, People v. Seneci, 133 A.D.2d 432, 433), and that the newly discovered evidence would probably, not merely possibly, change the result if a retrial were granted (see, People v. Penoyer, 135 A.D.2d 42, 44, affd 72 N.Y.2d 936; People v. Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950; CPL 330.30; 330.40 [2] [g]). Lawrence, J.P., O'Brien, Friedmann and Krausman, JJ., concur.