Opinion
2000-07039
Submitted November 7, 2002.
December 2, 2002.
Appeal by the defendant, by permission, from an order of the Supreme Court, Westchester County (Perone, J.), entered June 20, 2000, which denied his motion pursuant to CPL 440.10(1)(g) to vacate a judgment of conviction of the same court (Cowhey, J.), rendered April 28, 1995, convicting him of assault in the second degree and driving while ability impaired, upon a jury verdict, and imposing sentence.
Lijyasu Kandekore, Miami, Fl., appellant pro se.
Jeanine Pirro, District Attorney, White Plains, N.Y. (John C. Thomas and Valerie A. Livingston of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed.
The Supreme Court properly denied the defendant's motion to vacate his judgment of conviction, since the claims were either previously determined on the merits in the direct appeal (see People v. Kandekore, 256 A.D.2d 590) or sufficiently appeared "on the record * * * to have permitted" adequate review thereof on the direct appeal (CPL 440.10[c]; see CPL 440.10[a]; People v. Cooks, 67 N.Y.2d 100).
To the extent that the defendant contends that alleged new evidence exists which warrants vacatur of his judgment of conviction, his motion was not made with "due diligence" following the discovery of the purportedly new evidence (CPL 440.10[g]; see People v. Stuart, 123 A.D.2d 46, 54; see also People v. Boyette, 201 A.D.2d 490, habeas corpus gtd on other grounds sub nom Boyette v. Lefevre, 246 F.3d 76). In any event, the defendant's claim that the People's failure to disclose such material constituted both Brady (Brady v. Maryland, 373 U.S. 83) and Rosario (People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) violations is without merit (see People v. Boyette, supra).
ALTMAN, J.P., S. MILLER, LUCIANO and RIVERA, JJ., concur.