Opinion
September 23, 1976
Appeal, by permission, from an order of the County Court of Schenectady County, entered September 29, 1975, which denied, after a hearing, defendant's motion to vacate a judgment of said court, rendered December 10, 1973, convicting him of criminal possession of stolen property in the second degree. County Court, following a hearing, denied defendant's motion to vacate judgment pursuant to CPL 440.10 on the ground that one of the jurors at his trial was prejudicial against him. The determinative question presented in the instant case is whether defendant established by a preponderance of the evidence (CPL 440.30, subd 6) his allegation as to an incident which purportedly occurred between defendant and the juror some 10 years prior to the hearing. If this allegation had been established, defendant would have unquestionably been entitled to a new trial (People v Leonti, 262 N.Y. 256; People v Harding, 44 A.D.2d 800; People v Bishop, 66 App. Div. 415). The trial court, however, found defendant had not met his burden and on the instant record we find no basis to disturb this determination as contrary to the weight of the evidence. The issue of credibility should here be properly left to the trial court who heard the testimony presented (People v Benham, 160 N.Y. 402). Order affirmed, Koreman, P.J., Sweeney, Mahoney, Larkin and Reynolds, JJ., concur.