Opinion
March 27, 1989
Appeal from the Supreme Court, Kings County (Kooper, J.).
Ordered that the judgment is affirmed.
We have reviewed the record and find no support for the defendant's contention that the court abused its discretion in denying his motion to set aside the verdict on the ground of newly discovered evidence (see, CPL 330.30). At the hearing held on the motion, the defendant presented the testimony of several witnesses, including his private investigator, in support of his claim that another individual had committed the murder. However, the defendant failed to show by a preponderance of the credible evidence that the purported new evidence could not have been produced at the trial with due diligence. The record reveals that these witnesses were available since the date of the murder but that the defendant's investigator neglected to locate them until the time of trial, some 15 months later (see, People v. Davis, 43 N.Y.2d 17; People v. Singh, 142 A.D.2d 743, lv denied 72 N.Y.2d 1050). Furthermore, the defendant failed to show that this proposed testimony was likely to result in a verdict more favorable to him upon retrial. The hearing court concluded that due to the inconsistencies in the witnesses' testimony on critical aspects of the defendant's new claim and the hostile and arrogant demeanor exhibited by the witnesses, their testimony was totally unworthy of belief. We find no basis in the record to disturb that determination. Accordingly, the motion was properly denied (see, People v. Barrero, 137 A.D.2d 759; People v. Rivera, 108 A.D.2d 829).
We have examined the defendant's remaining claims and find them to involve alleged errors which are either unpreserved for appellate review or harmless. Bracken, J.P., Brown, Kunzeman and Spatt, JJ., concur.