Opinion
2001-01654
Argued September 12, 2002.
October 21, 2002.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 26, 2001, which denied, without a hearing, his motion pursuant to CPL article 440 to vacate a judgment of conviction of the same court, rendered April 16, 1982, convicting him of robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.
Darrell B. Fields, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied his motion pursuant to CPL 440.10(1)(g) to vacate his judgment of conviction based on newly-discovered evidence without conducting a hearing. The defendant failed to demonstrate that the evidence could not have been produced at trial with the exercise of due diligence (see People v. Feliciano, 240 A.D.2d 256; People v. Moore, 147 A.D.2d 924). Where, as here, the court was able to make its determination based on the papers submitted, it properly did so without a hearing (see People v. Johnson, 208 A.D.2d 562, 563; People v. Mossop, 191 A.D.2d 715).
The defendant's claim regarding an alleged Brady violation (see Brady v. Maryland, 373 U.S. 83), is unpreserved for appellate review (see CPL 470.05; People v. Rodriguez, 281 A.D.2d 644, 645) and, in any event, is without merit.
ALTMAN, J.P., FLORIO, O'BRIEN and H. MILLER, JJ., concur.