Opinion
December 7, 1970
Appeals from a judgment of the County Court of Chemung County, rendered February 19, 1969, convicting defendant of the crime of criminally selling a dangerous drug in the second degree, and from an order of that court, entered February 27, 1970, denying defendant's application for a new trial on the ground of newly discovered evidence. On a prior appeal this court affirmed the judgment of conviction ( People v. Williams, 34 A.D.2d 1046), and thereafter granted defendant's motion for reargument of the appeal from the order denying defendant's application for a new trial on the ground of newly discovered evidence. ( People v. Williams, 35 A.D.2d 785.) On the trial, defendant's wife, who was also under indictment at that time by reason of the same transaction, was called as a witness for the defense, and refused to testify asserting her rights under the Fifth Amendment. In support of defendant's motion herein he was presented an affidavit by his wife wherein a third version of the transaction was asserted. Defendant's wife, having received a suspended sentence, is now apparently willing to testify, although she does not actually state that she will testify. The application here is essentially an attempt to discredit the testimony of the People's witness and to that extent is cumulative to defendant's own testimony. Further, the alleged newly discovered evidence is not only contradictory of the testimony of the People's witness, but is also contradictory of defendant's own testimony, and there is no statement in the affidavit that defendant's wife will actually testify to the facts in the affidavit. Since the proferred proof only tends to impeach or discredit the prior testimony and is cumulative, defendant's motion was properly denied. ( People v. Becker, 215 N.Y. 126, 159; Code Crim. Pro., § 465.) Judgment and order affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.