Opinion
March 26, 1992
Appeal from the Supreme Court, Bronx County (Bonnie Wittner, J.).
The evidence was legally sufficient to establish defendant's guilt of attempted murder (see, People v Guzman, 180 A.D.2d 469; People v Gittens, 139 A.D.2d 591, lv denied 72 N.Y.2d 859).
The court's instruction on identification as a whole adequately conveyed the appropriate principles of law (People v Adams, 69 N.Y.2d 805), properly applied the law to the relevant facts (CPL 300.10), and provided accurate instructions on the evaluation of credibility (People v Whalen, 59 N.Y.2d 273, 279). Summary denial of defendant's motion to set aside the verdict on the basis of newly discovered evidence was proper, since defendant submitted only a hearsay affidavit that did not comply with CPL 330.40 (2) (a), and did not demonstrate either due diligence in acquiring the new evidence or that the new evidence would have likely affected the verdict. (CPL 330.30; People v Gomezgil, 135 A.D.2d 561, 562-563, lv denied 70 N.Y.2d 1006.)
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Milonas, Rosenberger, Ross and Kassal, JJ.