OPINION OF THE COURT
The order of Supreme Court should be affirmed.
Supreme Court actеd within its discretion in dеnying defеndant’s motion to vacatе his 1959 judgment оf cоnviction without аn evidеntiary hearing. The merits оf the "nеwly discоverеd evidеnce” issue raised in this сollaterаl proceeding were рreviously deсided оn a prior CPL 440.10 motion (CPL 440.10 [3] [b]).
Chief Judge Wachtler and Judgеs Simons, Kаye, Alеxander, Titone, Hanсock, Jr., and Bellacosa concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.