Opinion
November 15, 1995
Appeal from the Genesee County Court, Morton, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Order unanimously affirmed. Memorandum: County Court did not err in denying without a hearing that branch of defendant's motion to set aside the verdict based upon defendant's alleged newly-recovered memory of the incident. That branch of the motion was supported only by defendant's sworn allegations, not by any medical evidence. The conclusory and unsupported allegations were insufficient to entitle defendant to a hearing (see, People v La Pella, 185 A.D.2d 861, 862, lv denied 81 N.Y.2d 842). Moreover, defendant did not state in his affidavit that he planned to testify if he were granted a new trial (see, People v Williams, 35 A.D.2d 1023, 1024).
The court did not err in denying defendant's motion to set aside the verdict based upon the testimony of a newly-discovered witness to the incident. Defendant did not carry his burden at the hearing of proving by a preponderance of the evidence that the verdict probably would have been more favorable to him had the testimony of that witness been presented at trial (see, CPL 440.10 [g]; 440.30 [6]; see also, People v Rodriguez, 193 A.D.2d 363, 365-366, lv denied 81 N.Y.2d 1079).
The motion to vacate the conviction was not based on the ground that defendant was denied effective assistance of trial counsel (see, CPL 440.30), and we decline to address that issue for the first time on appeal.