Opinion
March 29, 1993
Appeal from the Supreme Court, Kings County (Brill, J.).
Ordered that the judgment is affirmed.
The court did not improvidently exercise its discretion in denying the defendant's motion for a new trial based upon newly discovered evidence. The defendant did not demonstrate by a fair preponderance of the evidence that the allegedly newly discovered evidence would probably change the result if a new trial were granted or that the evidence could not have been discovered before trial by the exercise of due diligence (see, CPL 330.30; People v. Salemi, 309 N.Y. 208, cert denied 350 U.S. 950; People v. Mendez, 147 A.D.2d 712). Furthermore, because the court was able to make its determination on the basis of the motion papers, it did not err in doing so without a hearing (see, CPL 330.40 [c], [e] [ii]). Bracken, J.P., Balletta, Eiber and Santucci, JJ., concur.