Opinion
March 17, 1998
Appeal from the Supreme Court, New York County (Rena Uviller, J.).
The trial court's denial of defendant's motion to set aside the verdict on the ground of newly discovered evidence was a proper exercise of discretion ( see, People v. Slaughter, 37 N.Y.2d 596; People v. Ramos, 178 A.D.2d 349, lv denied 79 N.Y.2d 922). The victim's larcenous conduct discovered after trial was merely impeaching evidence, and it would not have created a probability of changing the outcome of the case (CPL 330.30).
When viewed in context of the evidence and the entire charge, the court's instruction on credibility was adequate. In any event, were we to find the instruction to be erroneous, we would find it to be harmless ( see, People v. Hurel, 60 A.D.2d 537, lv denied 43 N.Y.2d 928).
Concur — Ellerin, J. P., Wallach, Rubin, Tom and Saxe, JJ.