People v. Higgins

Oct 21, 2002
Versions:298 A.D.2d 529
748 N.Y.S.2d 663
2002 N.Y. App. Div. LEXIS 9942

Appeal by the *530defendant, by permission, from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 26, 2001, which denied, without a hearing, his motion pursuant to CPL article 440 to vacate a judgment of conviction of the same court, rendered April 16, 1982, convicting him of robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the order is affirmed.

Contrary to the defendant’s contention, the Supreme Court properly denied his motion pursuant to CPL 440.10 (1) (g) to vacate his judgment of conviction based on newly-discovered evidence without conducting a hearing. The defendant failed to demonstrate that the evidence could not have been produced at trial with the exercise of due diligence (see People v Feliciano, 240 AD2d 256; People v Moore, 147 AD2d 924). Where, as here, the court was able to make its determination based on the papers submitted, it properly did so without a hearing (see People v Johnson, 208 AD2d 562, 563; People v Mossop, 191 AD2d 715).

The defendant’s claim regarding an alleged Brady violation (see Brady v Maryland, 373 US 83), is unpreserved for appellate review (see CPL 470.05 [2]; People v Rodriguez, 281 AD2d 644, 645) and, in any event, is without merit. Altman, J.P., Florio, O’Brien and H. Miller, JJ., concur.