Opinion
April 16, 1990
Appeal from the County Court, Dutchess County (Hillery, J.).
Ordered that the judgment is affirmed.
The defendant asserts that the court erred in denying his motion pursuant to CPL 330.30 to set aside the verdict on the ground of newly discovered evidence. We disagree.
The defendant's claim is premised upon certain information contained in a hospital report. The report, however, was in existence prior to trial and the defendant has not shown that it could not have been discovered with "due diligence" (see, People v. Moore, 147 A.D.2d 924; People v. Holmes, 127 A.D.2d 993). Moreover, the defendant has not demonstrated that the so-called "new evidence" would probably lead to a different result at a retrial (see, People v. Mendez, 147 A.D.2d 712). Accordingly, the motion was properly denied (People v. Moore, supra; People v. Penoyer, 135 A.D.2d 42, 44, affd 72 N.Y.2d 936; People v. Panzarino, 131 A.D.2d 788).
The defendant also claims that the court incorrectly charged the jury with respect to those felonies which could be considered as a predicate under the felony murder count. Although the court's charge may have been slightly confusing, the jury's finding the defendant guilty of each of the underlying felonies charged rendered any error in this regard harmless (People v Crimmins, 36 N.Y.2d 230, 241-242).
We have considered the defendant's remaining contentions and find that they are either unpreserved for appellate review or without merit. Lawrence, J.P., Kunzeman, Rosenblatt and Miller, JJ., concur.