Opinion
March 8, 1950.
Appeal from Sullivan County Court.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Defendant was convicted after a jury trial, at which he was represented by assigned counsel, of the crime of unlawful escape in violation of section 1694 of the Penal Law, and of the crime of assault in the second degree in violation of section 242 of the Penal Law. Thereafter defendant moved for a new trial, pursuant to subdivision 7 of section 465 of the Code of Criminal Procedure, upon the ground of newly discovered evidence. The alleged newly discovered evidence is the testimony of two prisoners who were incarcerated in the Sullivan County jail at the time the defendant was charged with escaping therefrom and committing the assault therein. The motion papers do not disclose the nature or substance of the testimony expected to be elicited from these witnesses. The record does not even reveal what the defendant believes such testimony will be. The affidavits presented to the trial court failed to meet the requirements of subdivision 7 of section 465 of the Code of Criminal Procedure, and the trial court properly denied the motion on that ground. Order unanimously affirmed, without costs.